GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any other Guarantor may, without in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable: (1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligations of the Company on the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this Guaranty; or (2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes; or (3) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder. (b) Each Guarantor hereby waives, to the fullest extent permitted by law: (1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every Indebtedness, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty); (2) demand of payment by any Holder from the Company or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteed; and (3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
Appears in 3 contracts
Samples: Note Purchase Agreement (Teledyne Technologies Inc), Note Purchase Agreement (Fuller H B Co), Note Purchase Agreement (Fuller H B Co)
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any other Guarantor may, without in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtedness, liability or obligation of the Company Obligor or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligations of the Company Obligor on the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or waive this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any Indebtedness, liability or obligation of the Company Obligor or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company Obligor on the Notes; or
(3) settle, adjust or compromise any claim of the Company Obligor against any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company Obligor on the Notes. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every Indebtedness, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of payment by any Holder from the Company or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
Appears in 2 contracts
Samples: Note Amendment Agreement (Cleveland Cliffs Inc), Subsidiary Guaranty Agreement (Cleveland Cliffs Inc)
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each The Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any other Guarantor time may, without in any manner affecting the liability of any the Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any IndebtednessDebt, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligations of the Company on the Notes, or waive any Default or Event of Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any IndebtednessDebt, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligation of the Company on the Notes; or
(3) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligation of the Company on the Notes. Each The Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such the Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each The Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every IndebtednessDebt, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of payment by any Holder from the Company or any other Person indebted in any manner on or for any of the IndebtednessDebt, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such the Guarantor. The obligations of each the Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by indefeasible payment in full in cash of the Notes and the obligations of the Company under the Note Purchase Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of the Guarantor hereunder shall be binding upon the Guarantor and its successors and assigns, and shall remain in full force and effect until the entire principal, interest and premium, if any, on the Notes and all other sums due pursuant to Section 2 shall have been paid and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including without limitation any of the following, whether or not with notice to or the consent of the Guarantor:
(1) the genuineness, validity, regularity or enforceability of the Notes, the Note Purchase Agreement or any other agreement or any of the terms of any thereof, the continuance of any obligation on the part of the Company or any other Person on or in respect of the Notes or under the Note Purchase Agreement or any other agreement or the power or authority or the lack of power or authority of the Company to issue the Notes or to execute and deliver the Note Purchase Agreement or any other agreement or the existence or continuance of the Company or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by the Company or any other Person of any obligations of any kind or character whatsoever under the Notes, the Note Purchase Agreement, this Guaranty or any other agreement; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of the Company or any other Person or in respect of the property of the Company or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the Company or any other Person; or
(4) impossibility or illegality of performance on the part of the Company or any other Person of its obligations under the Notes, the Note Purchase Agreement, this Guaranty or any other agreements; or
(5) in respect of the Company or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Company or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the Company or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against the Company or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by the Company or any other Person, or against any sums payable in respect of the Notes or under the Note Purchase Agreement or this Guaranty, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by the Company or any other Person of its respective obligations under or in respect of the Notes, the Note Purchase Agreement, this Guaranty or any other agreement; or
(8) the failure of the Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to the Guarantor of failure of the Company or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, the Note Purchase Agreement, this Guaranty or any other agreement or failure to resort for payment to the Company or to any other Person or to any other guaranty or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other guaranty, the advance of additional money to the Company or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, the Note Purchase Agreement or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any merger or consolidation of the Company or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of the Company or any other Person to any other Person, or any change in the ownership of any shares of the Company or any other Person or any release of any other guarantor under a Subsidiary Guaranty; or
(12) any defense whatsoever that: (i) the Company or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than indefeasible payment thereof in Federal or other immediately available funds, or (ii) the Company or any other Person might have to the performance or observance of any of the provisions of the Notes, the Note Purchase Agreement or any other agreement, whether through the satisfaction or purported satisfaction by the Company or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise, other than the defense of indefeasible payment in full in cash of the Notes; or
(13) any act or failure to act with regard to the Notes, the Note Purchase Agreement, this Guaranty or any other agreement or anything which might vary the risk of the Guarantor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Guarantor or any other Person in respect of the obligations of the Guarantor or other Person under this Guaranty or any other agreement, other than the defense of indefeasible payment in full in cash of the Notes; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty and the parties hereto that the obligations of the Guarantor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the indefeasible payment in full in cash of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and all other sums due and payable under the Note Purchase Agreement, at the place specified in and all in the manner and with the effect provided in the Notes and the Note Purchase Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Company shall default under or in respect of the terms of the Notes or the Note Purchase Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Company under the Notes or the Note Purchase Agreement, this Guaranty shall remain in full force and effect and shall apply to each and every subsequent default.
(d) All rights of any Holder may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the transfer of such Note whether with or without the consent of or notice to the Guarantor under this Guaranty or to the Company.
(e) To the extent of any payments made under this Guaranty, the Guarantor shall be subrogated to the rights of the Holder or Holders upon whose Notes such payment was made, but the Guarantor covenants and agrees that such right of subrogation shall be junior and subordinate in right of payment to the prior indefeasible final payment in cash in full of all amounts due and owing by the Company with respect to the Notes and the Note Purchase Agreement and by the Guarantor under this Guaranty, and the Guarantor shall not take any action to enforce such right of subrogation, and the Guarantor shall not accept any payment in respect of such right of subrogation, until all amounts due and owing by the Company under or in respect of the Notes and the Note Purchase Agreement and all amounts due and owing by the Guarantor hereunder have indefeasibly been finally paid in cash in full. If any amount shall be paid to the Guarantor in violation of the preceding sentence at any time prior to the indefeasible payment in cash in full of the Notes and all other amounts payable under the Notes, the Note Purchase Agreement and this Guaranty, such amount shall be held in trust for the benefit of the Holders and shall forthwith be paid to the Holders to be credited and applied to the amounts due or to become due with respect to the Notes and all other amounts payable under the Note Purchase Agreement and this Guaranty, whether matured or unmatured. The Guarantor acknowledges that it has received direct and indirect benefits from the financing arrangements contemplated by the Note Purchase Agreement and that the waiver set forth in this paragraph (e) is knowingly made as a result of the receipt of such benefits.
(f) The Guarantor agrees that to the extent the Company or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Guarantor’s obligations hereunder, as if said payment had not been made. The liability of the Guarantor hereunder shall not be reduced or discharged, in whole or in part, by any payment to any Holder from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(g) No Holder shall be under any obligation: (1) to marshal any assets in favor of the Guarantor or in payment of any or all of the liabilities of the Company under or in respect of the Notes or the obligations of the Guarantor hereunder or (2) to pursue any other remedy that the Guarantor may or may not be able to pursue itself and that may lighten the Guarantor’s burden, any right to which the Guarantor hereby expressly waives.
(h) The obligations of the Guarantor under this Guaranty rank pari passu in right of payment with all other Debt of the Guarantor which is not secured or which is not expressly subordinated in right of payment to any other Debt of the Guarantor.
(i) The Guarantor shall be automatically discharged and released from this Guaranty pursuant to and in accordance with the provisions of Section 9.6(b) of the Note Purchase Agreement.
Appears in 2 contracts
Samples: Note Purchase Agreement (Aptargroup Inc), Note Purchase Agreement (Aptargroup Inc)
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that the Administrative Agent and/or any Holder or Holders Secured Party from time to time, with or without any further notice to or assent from any other Guarantor may, without in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as any the Administrative Agent or such Holder or Holders Secured Party may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, increase, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtednessdebt, liability or obligation of the Company Borrowers or of any other Person secondarily or otherwise liable for any Indebtednessdebt, liability or obligations of the Company Borrowers on the NotesGuaranteed Obligations or under any Financing Document, or waive any Default or Event of Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this Guaranty; orFinancing Document;
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, the Administrative Agent or any such Holder Secured Party as direct or indirect security for the payment or performance of any Indebtednessdebt, liability or obligation of the Company Borrowers or of any other Person secondarily or otherwise liable for any Indebtednessdebt, liability or obligation of the Company on the NotesBorrowers under any Financing Document; orand/or
(3) settle, adjust or compromise any claim of the Company Borrowers against any other Person secondarily or otherwise liable for any Indebtednessdebt, liability or obligation of the Company on the NotesBorrowers under any Financing Document. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and agrees that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by lawLaw, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by lawLaw:
(1) notice of acceptance of this Guaranty by the Holders Administrative Agent or the Secured Parties or of the creation, renewal or accrual of any liability of the CompanyBorrowers, present or future, or of the reliance of such Holders the Administrative Agent or any of the Secured Parties upon this Guaranty (it being understood that every Indebtedness, liability and obligation all Guaranteed Obligations described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);; and
(2) demand of payment by any Holder the Administrative Agent on behalf of the Secured Parties from the Company Borrowers or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteedGuaranteed Obligations; and
(3) presentment for the payment by any Holder the Administrative Agent on behalf of the Secured Parties or any other Person of the Notes any Financing Document or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of any Holder the Administrative Agent to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of each Guarantor hereunder shall be binding upon such Guarantor and its successors and assigns, and shall remain in full force and effect until the date on which all Commitments of the Lenders shall have terminated, all Letters of Credit shall have expired or terminated and all Obligations have indefeasibly been paid in full (the “Termination Date”) and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including, without limitation, any of the following, whether or not with notice to or the consent of any Guarantor:
(1) the genuineness, validity, regularity or enforceability of any of the Financing Documents or any of the terms of any thereof, the continuance of any obligation on the part of the Borrowers or any other Guarantor on or in respect of or under any Financing Document or the power or authority or the lack of power or authority of the Borrowers to execute and deliver any Financing Document or of any other Guarantor to execute and deliver this Guaranty or to perform any of its obligations hereunder or the existence or continuance of the Borrowers or any other Guarantor as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by the Borrowers or any other Guarantor of any obligations of any kind or character whatsoever under any Financing Document; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of the Borrowers or any other Guarantor or in respect of the property of the Borrowers or any other Guarantor or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the Borrowers or any other Guarantor; or
(4) impossibility or illegality of performance on the part of the Borrowers or any other Guarantor of its obligations under any Financing Document; or
(5) in respect of the Borrowers or any other Guarantor, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Borrowers or any other Guarantor, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any federal or state regulatory body or agency, change of Law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the Borrowers or any other Guarantor and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, lien or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, debt, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against the Borrowers or any Guarantor or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by any Guarantor, or against any sums payable in respect of or under any Financing Document, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by the Borrowers or any other Guarantor of its respective obligations under or in respect of any Financing Document; or
(8) the failure of any other Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any other Guarantor of failure of the Borrowers or any other Guarantor to keep and perform any obligation, covenant or agreement under the terms of any Financing Document, or this Guaranty or failure to resort for payment to the Borrowers or any other Guarantor or to any other guaranty or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other guaranty, the advance of additional money to the Borrowers or any other Guarantor, amendments, modifications, consents or waivers with respect to any Financing Document, or the sale, release, substitution or exchange of any security for any Guaranteed Obligation; or
(11) any change in the ownership of any shares of the Borrowers or any Guarantor; or
(12) any defense whatsoever that: (i) the Borrowers or any other Guarantor might have to the payment under any Financing Document, other than payment thereof in Federal or other immediately available funds, or (ii) the Borrowers or any other Guarantor might have to the performance or observance of any of the provisions of any Financing Document, whether through the satisfaction or purported satisfaction by the Borrowers or any other Guarantor of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise; or
(13) any act or failure to act with regard to any Financing Document or anything which might vary the risk of any Guarantor; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Guarantor in respect of the obligations of any Guarantor under this Guaranty; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty that the obligations of each Guarantor shall be absolute, irrevocable and unconditional and shall not be discharged, impaired or varied except by the payment of all Obligations in accordance with their respective terms whenever the same shall become due and payable and all other sums due and payable under any Financing Document, at the place specified in and all in the manner and with the effect provided in the Credit Agreement. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Borrowers shall default under or in respect of the terms of any Financing Document and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Borrowers under any Financing Document shall remain in full force and effect and shall apply to each and every subsequent default.
(d) All rights of the Administrative Agent or any Secured Party hereunder may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the appointment of a successor to the Administrative Agent or any permitted transfer by a Lender of its rights under the Credit Agreement, whether with or without the consent of or notice to the Guarantors under this Guaranty or to the Borrowers.
(e) To the extent of any payments made under this Guaranty, each Guarantor shall be subrogated to the rights of the Administrative Agent and/or the Secured Parties to whom such payment was made, but such Guarantor covenants and agrees that such right of subrogation shall be subordinate in right of payment to the prior indefeasible final payment in cash in full of all amounts due and owing by the Borrowers with respect to the Obligations under the Financing Documents and by the Guarantors under this Guaranty, and the Guarantors shall not take any action to enforce such right of subrogation, and the Guarantors shall not accept any payment in respect of such right of subrogation, until the Termination Date. If any amount shall be paid to any Guarantor in violation of the preceding sentence at any time prior to the indefeasible payment in cash in full of all amounts payable under the Financing Documents and this Guaranty, such amount shall be held in trust for the benefit of the Secured Parties and shall forthwith be paid to the Administrative Agent for the benefit of the Administrative Agent and the Secured Parties to be credited and applied to the amounts due or to become due with respect to all amounts payable under the Financing Documents and this Guaranty, whether matured or unmatured. Each Guarantor acknowledges that it has received direct and indirect benefits from the financing arrangements contemplated by the Financing Documents and that the waiver set forth in this paragraph (e) is knowingly made as a result of the receipt of such benefits.
(f) Each Guarantor agrees that, to the extent either Borrower, any other Guarantor or any other Person makes any payment under any of the Financing Documents, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Guarantors’ obligations hereunder, as if said payment had not been made. The liability of the Guarantors hereunder shall not be reduced or discharged, in whole or in part, by any payment to the Administrative Agent or any Secured Party from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(g) Neither the Administrative Agent nor any Secured Party, shall be under any obligation: (1) to marshal any assets in favor of the Guarantors or in payment of any or all of the liabilities of the Borrowers under or in respect of the Financing Documents or the obligations of the Guarantors hereunder or (2) to pursue any other remedy that the Guarantors may or may not be able to pursue themselves and that may lighten the Guarantors’ burden, any right to which each Guarantor hereby expressly waives.
(h) The obligations of each Guarantor under this Guaranty rank pari passu in right of payment with all other Indebtedness of such Guarantor which is not secured or which is not expressly subordinated in right of payment to any other Indebtedness of such Guarantor.
Appears in 2 contracts
Samples: Credit Agreement (Devry Inc), u.s. Subsidiary Guaranty (Devry Inc)
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that the Administrative Agent and/or any Holder or Holders Lender from time to time, with or without any further notice to or assent from any other Guarantor may, without in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as any the Administrative Agent or such Holder or Holders Lender may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, increase, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtednessdebt, liability or obligation of the Company Borrowers or of any other Person secondarily or otherwise liable for any Indebtednessdebt, liability or obligations of the Company Borrowers on the NotesGuaranteed Obligations or under any Loan Document, or waive any Default or Event of Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this Guaranty; orLoan Document;
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, the Administrative Agent or any such Holder Lender as direct or indirect security for the payment or performance of any Indebtednessdebt, liability or obligation of the Company Borrowers or of any other Person secondarily or otherwise liable for any Indebtednessdebt, liability or obligation of the Company on the NotesBorrowers under any Loan Document; orand/or
(3) settle, adjust or compromise any claim of the Company Borrowers against any other Person secondarily or otherwise liable for any Indebtednessdebt, liability or obligation of the Company on the NotesBorrowers under any Loan Document. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and agrees that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders Administrative Agent or the Lenders or of the creation, renewal or accrual of any liability of the CompanyBorrowers, present or future, or of the reliance of such Holders the Administrative Agent or any of the Lenders upon this Guaranty (it being understood that every Indebtedness, liability and obligation all Guaranteed Obligations described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);; and
(2) demand of payment by any Holder the Administrative Agent on behalf of the Lenders from the Company Borrowers or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteedGuaranteed Obligations; and
(3) presentment for the payment by any Holder the Administrative Agent on behalf of the Lenders or any other Person of the Notes any Loan Document or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of any Holder the Administrative Agent to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of each Guarantor hereunder shall be binding upon such Guarantor and its successors and assigns, and shall remain in full force and effect until the date on which all Commitments of the Lenders shall have terminated, all Letters of Credit shall have expired or terminated and all Obligations have indefeasibly been paid in full F-1-7 (the “Termination Date”) and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including, without limitation, any of the following, whether or not with notice to or the consent of any Guarantor:
(1) the genuineness, validity, regularity or enforceability of any of the Loan Documents or any of the terms of any thereof, the continuance of any obligation on the part of the Borrowers or any other Guarantor on or in respect of or under any Loan Document or the power or authority or the lack of power or authority of the Borrowers to execute and deliver any Loan Document or of any other Guarantor to execute and deliver this Guaranty or to perform any of its obligations hereunder or the existence or continuance of the Borrowers or any other Guarantor as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by the Borrowers or any other Guarantor of any obligations of any kind or character whatsoever under any Loan Document; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of the Borrowers or any other Guarantor or in respect of the property of the Borrowers or any other Guarantor or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the Borrowers or any other Guarantor; or
(4) impossibility or illegality of performance on the part of the Borrowers or any other Guarantor of its obligations under any Loan Document; or
(5) in respect of the Borrowers or any other Guarantor, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Borrowers or any other Guarantor, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the Borrowers or any other Guarantor and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, lien or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, debt, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against the Borrowers or any Guarantor or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by any Guarantor, or against any sums payable in respect of or under any Loan Document, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by the Borrowers or any Guarantor of its respective obligations under or in respect of any Loan Document; or
(8) the failure of any Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Guarantor of failure of the Borrowers or any other Guarantor to keep and perform any obligation, covenant or agreement under the terms of any Loan Document, or this Guaranty or failure to resort for payment to the Borrowers or any other Guarantor or to any other guaranty or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other guaranty, the advance of additional money to the Borrowers or any other Guarantor, amendments, modifications, consents or waivers with respect to any Loan Document, or the sale, release, substitution or exchange of any security for any Guaranteed Obligation; or
(11) any change in the ownership of any shares of the Borrowers or any Guarantor; or
(12) any defense whatsoever that: (i) the Borrowers or any other Guarantor might have to the payment under any Loan Document, other than payment thereof in Federal or other immediately available funds, or (ii) the Borrowers or any other Guarantor might have to the performance or observance of any of the provisions of any Loan Document, whether through the satisfaction or purported satisfaction by the Borrowers or any other Guarantor of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise; or
(13) any act or failure to act with regard to any Loan Document or anything which might vary the risk of any Guarantor; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Guarantor in respect of the obligations of any Guarantor under this Guaranty; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty that the obligations of each Guarantor shall be absolute, irrevocable and unconditional and shall not be discharged, impaired or varied except by the payment of all Obligations in accordance with their respective terms whenever the same shall become due and payable and all other sums due and payable under any Loan Document, at the place specified in and all in the manner and with the effect provided in the Credit Agreement, as may be amended or modified from time to time. Without limiting the F-1-10 foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Borrowers shall default under or in respect of the terms of any Loan Document and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Borrowers under any Loan Document shall remain in full force and effect and shall apply to each and every subsequent default.
(d) All rights of the Administrative Agent or any Lender hereunder may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the appointment of a successor to the Administrative Agent or any permitted transfer by a Lender of its rights under the Credit Agreement, whether with or without the consent of or notice to the Guarantors under this Guaranty or to the Borrowers.
(e) To the extent of any payments made under this Guaranty, each Guarantor shall be subrogated to the rights of the Administrative Agent and/or the Lenders to whom such payment was made, but such Guarantor covenants and agrees that such right of subrogation shall be subordinate in right of payment to the prior indefeasible final payment in cash in full of all amounts due and owing by the Borrowers with respect to the Obligations under the Loan Documents and by the Guarantors under this Guaranty, and the Guarantors shall not take any action to enforce such right of subrogation, and the Guarantors shall not accept any payment in respect of such right of subrogation, until the Termination Date. If any amount shall be paid to any Guarantor in violation of the preceding sentence at any time prior to the indefeasible payment in cash in full of all amounts payable under the Loan Documents and this Guaranty, such amount shall be held in trust for the benefit of the Lenders and shall forthwith be paid to the Administrative Agent for the benefit of the Administrative Agent and the Lenders to be credited and applied to the amounts due or to become due with respect to all amounts payable under the Loan Documents and this Guaranty, whether matured or unmatured. Each Guarantor acknowledges that it has received direct and indirect benefits from the financing arrangements contemplated by the Loan Documents and that the waiver set forth in this paragraph (e) is knowingly made as a result of the receipt of such benefits.
(f) Each Guarantor agrees that, to the extent either Borrower, any other Guarantor or any other Person makes any payment under any of the Loan Documents, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Guarantors’ obligations hereunder, as if said payment had not been made. The liability of the Guarantors hereunder shall not be reduced or discharged, in whole or in part, by any payment to the Administrative Agent or any Lender from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(g) Neither the Administrative Agent nor any Lender, shall be under any obligation: (1) to marshalx xxx xxsets in favor of the Guarantors or in payment of any or all of the liabilities of the Borrowers under or in respect of the Loan Documents or the obligations of the Guarantors hereunder or (2) to pursue any other remedy that the Guarantors may or may not be able to pursue themselves and that may lighten the Guarantors’ burden, any right to which each Guarantor hereby expressly waives.
(h) The obligations of each Guarantor under this Guaranty rank pari passu in right of payment with all other Indebtedness of such Guarantor which is not secured or which is not expressly subordinated in right of payment to any other Indebtedness of such Guarantor.
Appears in 1 contract
Samples: u.s. Subsidiary Guaranty (Devry Inc)
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any other Guarantor may, without every default in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligations of the Company on the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any Indebtedness, liability or obligation of the Company Lessee under any Loan Document to which the Lessee is a party shall give rise to a separate claim and cause of action hereunder to the extent that each such default by the Lessee would give rise to a separate claim or cause of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of action under the Company on the Notes; or
(3) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon itapplicable Loan Document, and hereby waivesseparate claims or suits may be made and brought, to as the fullest extent permitted by lawcase may be, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that hereunder as each such Guarantor shall at all times be bound by this Guaranty and remain liable hereunderdefault occurs.
(b) Each This Guaranty shall be a continuing, absolute, irrevocable and unconditional guaranty of payment and performance and not of collection and shall remain in full force and effect until each and all of the obligations of the Lessee guaranteed hereunder shall have been fully and indefeasibly discharged or performed in accordance with the terms and provisions of the Loan Documents (and no longer subject to recoupment, preference claims or clawback under applicable bankruptcy, insolvency or similar laws), and each Guarantor hereby waives, shall have fully discharged or performed all of its obligations under this Guaranty to each Guaranteed Beneficiary.
(c) This Guaranty and the fullest extent permitted by lawliability of the Guarantors provided for in Section 1 hereunder shall remain in full force and effect irrespective of:
(1i) notice the legality, validity, regularity or enforceability, or the absence of acceptance any thereof, of this Guaranty by the Holders any Loan Document (or other document or agreement) or of the creationany assignment, renewal amendment, modification, or accrual termination of any liability Loan Document (or other document or agreement) or any subleasing or further subleasing of the CompanyAircraft or Spare Engines (or any interest therein or portion thereof), present and shall in no way be affected or futureimpaired by (and no notice to the Guarantors shall be required in respect of) any compromise, waiver, settlement, release, renewal, extension, indulgence, amendment, addition, deletion, change or modification with respect to, or release of any security for any of the reliance obligations or liabilities of such Holders upon this Guaranty the Lessee under, any Loan Document or any redelivery, repossession, sale, transfer or other disposition, surrender or destruction of, or other event or circumstance with respect to, the Aircraft or Spare Engines (it being understood that every Indebtednessor any interest therein or portion thereof), liability and obligation described in Section 2 hereof shall conclusively be presumed to have been created, contracted whole or incurred in reliance upon the execution of this Guaranty);part; or
(2ii) demand the transfer, assignment, subletting, or mortgaging, or the purported transfer, assignment, subletting, or mortgaging, of payment by all or any Holder from part of the Company interest of any Guaranteed Beneficiary or the Lessee in the Aircraft or Spare Engines (or any interest therein or portion thereof) in accordance with the Loan Documents; or
(iii) any absence or defect or failure of title or lack of recordation or registration with respect to any Guaranteed Beneficiary's or the Lessee's interest in the Aircraft or Spare Engines (or any interest therein or portion thereof); or
(iv) any failure of delivery of, or loss of perfection of any security interest with respect to, any portion of the Aircraft or Spare Engines (or any interest therein or portion thereof); or
(v) any matter relating to any agreement or approval (or the absence thereof) in connection with the Aircraft or Spare Engines (or any interest therein or portion thereof); or
(vi) any failure, neglect or omission on the part of any Guaranteed Beneficiary or any other Person indebted in any manner on or for any to give the Guarantors notice of the Indebtedness, liabilities occurrence of any Default or obligations hereby guaranteed; and
(3) presentment for the payment Lease Event of Default or Potential Event of Default or Event of Default or to realize upon any collateral held by any Holder Guaranteed Beneficiary or any other Person with respect to any obligations or liabilities of the Notes Lessee, or to provide for any insurance on the Aircraft or Spare Engines (or any interest therein or portion thereof), or to establish or maintain a security or other interest in the Aircraft or Spare Engines (or any interest therein or portion thereof) or any collateral provided under any Loan Document or to establish or maintain the priority or perfection of any thereof; or
(vii) any defect in the compliance with specifications, warranties or any insurance policy or the condition, design, operation or fitness for use of, or any damage to or loss or destruction of, or any interruption or cessation in the use of, the Aircraft or Spare Engines (or any interest therein or any portion thereof) by the Lessee or any other instrumentPerson for any reason whatsoever (including, protest without limitation, any governmental prohibition or restriction, condemnation, requisition, seizure or any other act on the part of any governmental or military authority, or any act of God or of the public enemy) regardless of the duration thereof and notice (even though such duration would otherwise constitute a frustration under any Loan Document), whether or not without fault on the part of the Lessee or any other Person; or
(viii) any merger, consolidation or other restructuring or termination of the corporate structure, reorganization or transaction with respect to the Lessee or any Guarantor into, with or in respect of, any other Person or any sale, lease, assignment or transfer of any of the assets of the Lessee or any Guarantor to any other Person; or
(ix) any disposition by any Guarantor of its dishonor interest in the Lessee, or any change in the ownership of any shares of capital stock of such Guarantor or the Lessee, or any change, restructuring or termination of the corporate structure or existence of the Lessee; or
(x) the imposition of any Tax or other charge against the Lessee, any Guarantor or any other Person; or
(xi) any exchange, release or nonperfection, or lapse of perfection, of any security for any Guaranteed Obligation or the acceptance of any security therefor; or
(xii) any bankruptcy, insolvency, winding up, dissolution, liquidation, receivership, or reorganization of, or similar proceedings affecting, the Lessee or any Guarantor or its assets or any resulting release or discharge of any of the Guaranteed Obligations (except to the extent resulting from performance thereof); or
(xiii) any party thereto and regulatory change or other governmental action (whether or not adverse); or
(xiv) any partial payment or performance of the Guaranteed Obligations (whether as a result of the exercise of any right, remedy, power or privilege or otherwise) that is accepted or received (except, subject to paragraph (f) of this Section 2, to the extent of such payment or performance); or
(xv) any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing, whether or not foreseeable, that might otherwise constitute a legal or equitable defense or discharge of the liabilities of a Guarantor or surety or that might otherwise limit recourse against such Guarantor. The obligations of each Guarantor under this Guaranty set forth herein constitute the full recourse obligations of each Guarantor enforceable against it to the full extent of all its assets and the rights properties.
(d) The obligation and liability of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, each Guarantor hereunder shall not be subject to any reductionimpaired, limitationdiminished, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement), whether by reason of any claim of any character whatsoever abated or otherwise and shall not be subject to affected (i) by any defense, set-off, defense or counterclaim that the Lessee, any Guarantor or any other Person may have or claim to have, at any time or from time to time, or (ii) by the commencement by or against the Lessee, any Guarantor or any other than Person of any compulsory counterclaimproceedings under any bankruptcy or insolvency law or laws relating to the relief of debtors, readjustment of indebtedness, reorganizations, arrangements, compositions or extension or other similar laws.
(e) It is the intent and purpose hereof that each Guarantor shall not be entitled to and does hereby waive, to the fullest extent permitted by applicable law, any and all defenses available to such Guarantor, sureties and other secondary parties at law or in equity. Without limiting the generality of the foregoing, each Guarantor hereby waives notice of acceptance of this Guaranty and of the nonperformance by the Lessee, diligence, presentment, protest, dishonor, demand for payment from the Lessee or any other Person and notice of nonpayment or failure to perform on the part of the Lessee and all other notices whatsoever. The guaranty hereunder is a guaranty of payment, performance and compliance and not of collectability only. Each Guarantor specifically agrees that it shall not be necessary, and such Guarantor shall not require, before or as a condition of enforcing the liability of such Guarantor under this Guaranty or requiring payment or performance of the Guaranteed Obligations by such Guarantor hereunder, or at any time thereafter, that any of the Guaranteed Beneficiaries (i) file suit or proceed to obtain or assert a claim for personal judgment against any Person that may be liable for any Guaranteed Obligation; (ii) make any other effort to obtain payment or performance of any Guaranteed Obligation from the Lessee or any other Person that may be liable for such Guaranteed Obligation; (iii) foreclose against or seek to realize upon any security now or hereafter existing for such Guaranteed Obligation; (iv) exercise or assert any other right or remedy to which any of the Guaranteed Beneficiaries is or may be entitled in connection with any Guaranteed Obligation or any security or other guaranty therefor; (v) assert or file any claim against the assets of the Lessee or any other Person liable for any Guaranteed Obligation; or (vi) join the Lessee or any other Person as a party to any proceeding for the enforcement of any provision of this Guaranty. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, a Lease Event of Default shall have occurred and be continuing or a Guaranteed Obligation shall otherwise arise (in either case, a "RECOVERY EVENT"), recoupment and that, notwithstanding recovery hereunder for or termination whatsoeverin respect of any such Recovery Event, this Guaranty shall remain in force and effect and shall apply to each and every subsequent Recovery Event. Each Guarantor further agrees that, without limiting the generality of this Guaranty, if any Recovery Event shall have occurred and be continuing and any Guaranteed Beneficiary (or any assignee thereof) is prevented by applicable law from exercising its remedies under any applicable Loan Document for any reason, such Guaranteed Beneficiary (or any assignee thereof) shall be entitled to receive hereunder from such Guarantor, upon demand therefor, the sums that otherwise would have been due from the Lessee had such remedies been exercised. If any Guarantor makes any payment or performs any obligation hereunder in respect of any of the obligations to be performed by the Lessee, such Guarantor shall become subrogated to the extent of such payment or performance to the rights of the Guaranteed Beneficiary under the relevant agreement to which the Lessee is a party against the Lessee in respect of such obligations and any collateral security or guaranty held by or for the benefit of such Guaranteed Beneficiary for the payment of such obligations; PROVIDED, HOWEVER, that such rights of subrogation shall not commence until such time subsequent to the end of the Term as the Lessee or such Guarantor, as the case may be, shall have paid and performed each and every Guaranteed Obligation to each Guaranteed Beneficiary and such Guarantor shall have fully performed its obligations hereunder.
(f) The guaranty hereunder shall not be deemed to have terminated and shall continue to be effective (or if terminated for any reason shall be reinstated, as the case may be), if at any time payment, or any part thereof, of any of the obligations hereunder or under any Loan Document is rescinded and must be (and actually is) returned by any Guaranteed Beneficiary to the Person who made the payment or on behalf of whom the payment was made upon the insolvency, bankruptcy or reorganization (or similar event) with respect to the Lessee, any Guarantor or otherwise, all as though such payment had not been made.
(g) If any Guarantor fails to pay any amount hereunder when due to any Guaranteed Beneficiary, such Guarantor shall pay to such Guaranteed Beneficiary interest, on demand, on such amount at the appropriate rate described in Section 2.2D of the Credit Agreement.
(h) Each Guarantor further agrees to pay to each Guaranteed Beneficiary any and all costs and expenses, including reasonable legal fees (which shall include allocated costs of internal counsel) and disbursements, incurred by such party in connection with enforcing its rights under this Guaranty.
Appears in 1 contract
Samples: Subsidiaries Guaranty (Atlas Air Worldwide Holdings Inc)
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any other Guarantor may, without in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligations of the Company on the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or waive this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes; or
(3) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every Indebtedness, liability and obligation described in Section SECTION 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of payment by any Holder from the Company or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of the Guarantors hereunder shall be binding upon the Guarantors and their successors and assigns, and shall remain in full force and effect irrespective of:
(1) the genuineness, validity, regularity or enforceability of the Notes, the Note Agreement or any other agreement or any of the terms of any thereof, the continuance of any obligation on the part of the Company or any other Person on or in respect of the Notes or under the Note Agreement or any other agreement or the power or authority or the lack of power or authority of the Company to issue the Notes or the Company to execute and deliver the Note Agreement or any other agreement or of any Guarantor to execute and deliver this Guaranty or to perform any of its obligations hereunder or the existence or continuance of the Company or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by the Company, any Guarantor or any other Person of any obligations of any kind or character whatsoever under the Notes, the Note Agreement, this Guaranty or any other agreement; or
(3) any creditors' rights, bankruptcy, receivership or other insolvency proceeding of the Company, any Guarantor or any other Person or in respect of the property of the Company, any Guarantor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the Company, any Guarantor or any other Person; or
(4) impossibility or illegality of performance on the part of the Company, any Guarantor or any other Person of its obligations under the Notes, the Note Agreement, this Guaranty or any other agreements; or
(5) in respect of the Company or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Company or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the Company or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against the Company, any Guarantor or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by the Company, any Guarantor or any other Person, or against any sums payable in respect of the Notes or under the Note Agreement or this Guaranty, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by the Company, any Guarantor or any other Person of its respective obligations under or in respect of the Notes, the Note Agreement, this Guaranty or any other agreement; or
(8) the failure of any Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Guarantor of failure of the Company, any Guarantor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, the Note Agreement, this Guaranty or any other agreement or failure to resort for payment to the Company, any Guarantor or to any other Person or to any other guaranty or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other guaranty, the advance of additional money to the Company or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, the Note Agreement or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any merger or consolidation of the Company, any Guarantor or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of the Company, any Guarantor or any other Person to any other Person, or any change in the ownership of any shares or other equity interests of the Company, any Guarantor or any other Person; or
(12) any defense whatsoever that the Company or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than payment thereof in Federal or other immediately available funds; or
(13) any act or failure to act with regard to the Notes, the Note Agreement, this Guaranty or any other agreement or anything which might vary the risk of any Guarantor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Guarantor or any other Person in respect of the obligations of any Guarantor or other Person under this Guaranty or any other agreement; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty and the parties hereto that the obligations of each Guarantor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the payment of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided, at the place specified in and all in the manner and with the effect provided in the Notes and the Note Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Company shall default under or in respect of the terms of the Notes or the Note Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Company under the Notes or the Note Agreement, this Guaranty shall remain in full force and effect and shall apply to each and every subsequent default.
(d) All rights of any Holder may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the transfer of such Note whether with or without the consent of or notice to the Guarantors under this Guaranty.
(e) To the extent of any payments made under this Guaranty, the Guarantors shall be subrogated to the rights of the Holder or Holders upon whose Notes such payment was made, but each Guarantor covenants and agrees that such right of subrogation shall be junior and subordinate in right of payment to the prior indefeasible final payment in cash in full of all amounts due and owing by the Company with respect to the Notes and the Note Agreement and by the Guarantors under this Guaranty, and the Guarantors shall not take any action to enforce such right of subrogation, and the Guarantors shall not accept any payment in respect of such right of subrogation, until all amounts due and owing by the Company under or in respect of the Notes and the Note Agreement and all amounts due and owing by the Guarantors hereunder have indefeasibly been finally paid in cash in full. If any amount shall be paid to any Guarantor in violation of the preceding sentence at any time prior to the indefeasible payment in cash in full of the Notes and all other amounts payable under the Notes, the Note Agreement and this Guaranty, such amount shall be held in trust for the benefit of the Holders and shall forthwith be paid to the Holders to be credited and applied to the amounts due or to become due with respect to the Notes and all other amounts payable under the Note Agreement and this Guaranty, whether matured or unmatured.
(f) Each Guarantor agrees that to the extent the Company or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Guarantors' obligations hereunder, as if said payment had not been made. The liability of the Guarantors hereunder shall not be reduced or discharged, in whole or in part, by any payment to any Holder from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(g) No Holder shall be under any obligation: (1) to marsxxxx xxx assets in favor of the Guarantors or in payment of any or all of the liabilities of the Company under or in respect of the Notes or the obligations of the Guarantors hereunder or (2) to pursue any other remedy that the Guarantors may or may not be able to pursue themselves and that may lighten the Guarantors' burden, any right to which each Guarantor hereby expressly waives.
Appears in 1 contract
Samples: Subsidiary Guaranty Agreement (Orbital Sciences Corp /De/)
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any other Guarantor may, without in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligations of the Company on the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or waive this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes; or
(3) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every Indebtedness, liability and obligation described in Section SECTION 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of payment by any Holder from the Company or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of the Guarantors hereunder shall be binding upon the Guarantors and their successors and assigns, and shall remain in full force and effect irrespective of:
(1) the genuineness, validity, regularity or enforceability of the Notes, the Note Purchase Agreements or any other agreement or any of the terms of any thereof, the continuance of any obligation on the part of the Company or any other Person on or in respect of the Notes or under the Note Purchase Agreements or any other agreement or the power or authority or the lack of power or authority of the Company to issue the Notes or the Company to execute and deliver the Note Purchase Agreements or any other agreement or of any Guarantor to execute and deliver this Guaranty or to perform any of its obligations hereunder or the existence or continuance of the Company or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by the Company, any Guarantor or any other Person of any obligations of any kind or character whatsoever under the Notes, the Note Purchase Agreements, this Guaranty or any other agreement; or
(3) any creditors' rights, bankruptcy, receivership or other insolvency proceeding of the Company, any Guarantor or any other Person or in respect of the property of the Company, any Guarantor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the Company, any Guarantor or any other Person; or
(4) impossibility or illegality of performance on the part of the Company, any Guarantor or any other Person of its obligations under the Notes, the Note Purchase Agreements, this Guaranty or any other agreements; or
(5) in respect of the Company or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Company or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the Company or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against the Company, any Guarantor or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by the Company, any Guarantor or any other Person, or against any sums payable in respect of the Notes or under the Note Purchase Agreements or this Guaranty, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by the Company, any Guarantor or any other Person of its respective obligations under or in respect of the Notes, the Note Purchase Agreements, this Guaranty or any other agreement; or
(8) the failure of any Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Guarantor of failure of the Company, any Guarantor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, the Note Purchase Agreements, this Guaranty or any other agreement or failure to resort for payment to the Company, any Guarantor or to any other Person or to any other guaranty or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other guaranty, the advance of additional money to the Company or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, the Note Purchase Agreements or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any merger or consolidation of the Company, any Guarantor or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of the Company, any Guarantor or any other Person to any other Person, or any change in the ownership of any shares of the Company, any Guarantor or any other Person; or
(12) any defense whatsoever that: (i) the Company or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than payment thereof in Federal or other immediately available funds, or (ii) the Company or any other Person might have to the performance or observance of any of the provisions of the Notes, the Note Purchase Agreements or any other agreement, whether through the satisfaction or purported satisfaction by the Company or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise, other than the defense of indefeasible payment in full in cash of the Notes; or
(13) any act or failure to act with regard to the Notes, the Note Purchase Agreements, this Guaranty or any other agreement or anything which might vary the risk of any Guarantor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Guarantor or any other Person in respect of the obligations of any Guarantor or other Person under this Guaranty or any other agreement, other than the defense of indefeasible payment in full in cash of the Notes; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty and the parties hereto that the obligations of each Guarantor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the payment of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided, at the place specified in and all in the manner and with the effect provided in the Notes and the Note Purchase Agreements, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Company shall default under or in respect of the terms of the Notes or the Note Purchase Agreements and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Company under the Notes or the Note Purchase Agreements, this Guaranty shall remain in full force and effect and shall apply to each and every subsequent default.
(d) All rights of any Holder may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the transfer of such Note whether with or without the consent of or notice to the Guarantors under this Guaranty or to the Company.
(e) To the extent of any payments made under this Guaranty, the Guarantors shall be subrogated to the rights of the Holder or Holders upon whose Notes such payment was made, but each Guarantor covenants and agrees that such right of subrogation shall be junior and subordinate in right of payment to the prior indefeasible final payment in cash in full of all amounts due and owing by the Company with respect to the Notes and the Note Purchase Agreements and by the Guarantors under this Guaranty, and the Guarantors shall not take any action to enforce such right of subrogation, and the Guarantors shall not accept any payment in respect of such right of subrogation, until all amounts owed by the Company under or in respect of the Notes and the Note Purchase Agreements and all amounts owed by the Guarantors hereunder have indefeasibly been finally paid in cash in full. If any amount shall be paid to any Guarantor in violation of the preceding sentence at any time prior to the indefeasible payment in cash in full of the Notes and all other amounts payable under the Notes, the Note Purchase Agreements and this Guaranty, such amount shall be held in trust for the benefit of the Holders and shall forthwith be paid to the Holders to be credited and applied to the amounts due or to become due with respect to the Notes and all other amounts payable under the Note Purchase Agreements and this Guaranty, whether matured or unmatured.
(f) To the extent of any payments made under this Guaranty, each Guarantor making such payment shall have a right of contribution from the other Guarantors, but such Guarantor covenants and agrees that such right of contribution shall be subordinate in right of payment to the rights of the Holders for which full payment has not been made or provided for and, to that end, such Guarantor agrees not to claim or enforce any such right of contribution unless and until all of the Notes and all other sums due and payable under the Note Purchase Agreements have been fully and irrevocably paid and discharged.
(g) Each Guarantor agrees that to the extent the Company or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Guarantors' obligations hereunder, as if said payment had not been made. The liability of the Guarantors hereunder shall not be reduced or discharged, in whole or in part, by any payment to any Holder from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(h) No Holder shall be under any obligation: (1) to marshal any assets in favor of the Guarantors or in payment of any or all of the liabilities of the Company under or in respect of the Notes or the obligations of the Guarantors hereunder or (2) to pursue any other remedy that the Guarantors may or may not be able to pursue themselves and that may lighten the Guarantors' burden, any right to which each Guarantor hereby expressly waives.
Appears in 1 contract
Samples: Note Purchase Agreement (St Joe Co)
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that the Administrative Agent and/or any Holder or Holders Lender from time to time, with or without any further notice to or assent from any other Guarantor may, without in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as any the Administrative Agent or such Holder or Holders Lender may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, increase, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtednessdebt, liability or obligation of the Company Borrowers or of any other Person secondarily or otherwise liable for any Indebtedness, debt,liability or obligations of the Company Borrowers on the NotesGuaranteed Obligations or under any Loan Document, or waive any Default or Event of Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this Guaranty; orLoan Document;
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, the Administrative Agent or any such Holder Lender as direct or indirect security for the payment or performance of any Indebtednessdebt, liability or obligation of the Company Borrowers or of any other Person secondarily or otherwise liable for any Indebtednessdebt, liability or obligation of the Company on the NotesBorrowers under any Loan Document; orand/or
(3) settle, adjust or compromise any claim of the Company Borrowers against any other Person secondarily or otherwise liable for any Indebtednessdebt, liability or obligation of the Company on the NotesBorrowers under any Loan Document. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and agrees that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders Administrative Agent or the Lenders or of the creation, renewal or accrual of any liability of the CompanyBorrowers, present or future, or of the reliance of such Holders the Administrative Agent or any of the Lenders upon this Guaranty (it being understood that every Indebtedness, liability and obligation all Guaranteed Obligations described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);; and
(2) demand of payment by any Holder the Administrative Agent on behalf of the Lenders from the Company Borrowers or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteedGuaranteed Obligations; and
(3) presentment for the payment by any Holder the Administrative Agent on behalf of the Lenders or any other Person of the Notes any Loan Document or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of any Holder the Administrative Agent to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of each Guarantor hereunder shall be binding upon such Guarantor and its successors and assigns, and shall remain in full force and effect until the date on which all Commitments of the Lenders shall have terminated, all Letters of Credit shall have expired or terminated and all Obligations have indefeasibly been paid in full (the "Termination Date") and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including, without limitation, any of the following, whether or not with notice to or the consent of any Guarantor:
(1) the genuineness, validity, regularity or enforceability of any of the Loan Documents or any of the terms of any thereof, the continuance of any obligation on the part of the Borrowers or any other Guarantor on or in respect of or under any Loan Document or the power or authority or the lack of power or authority of the Borrowers to execute and deliver any Loan Document or of any other Guarantor to execute and deliver this Guaranty or to perform any of its obligations hereunder or the existence or continuance of the Borrowers or any other Guarantor as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by the Borrowers or any other Guarantor of any obligations of any kind or character whatsoever under any Loan Document; or
(3) any creditors' rights, bankruptcy, receivership or other insolvency proceeding of the Borrowers or any other Guarantor or in respect of the property of the Borrowers or any other Guarantor or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the Borrowers or any other Guarantor; or
(4) impossibility or illegality of performance on the part of the Borrowers or any other Guarantor of its obligations under any Loan Document; or
(5) in respect of the Borrowers or any other Guarantor, any change of circumstances, whether or not foreseen or foreseeable,whether or not imputable to the Borrowers or any other Guarantor, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the Borrowers or any other Guarantor and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien,order,process, lien or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, debt, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against the Borrowers or any Guarantor or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by any Guarantor, or against any sums payable in respect of or under any Loan Document, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by the Borrowers or any Guarantor of its respective obligations under or in respect of any Loan Document; or
(8) the failure of any Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Guarantor of failure of the Borrowers or any other Guarantor to keep and perform any obligation, covenant or agreement under the terms of any Loan Document, or this Guaranty or failure to resort for payment to the Borrowers or any other Guarantor or to any other guaranty or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other guaranty, the advance of additional money to the Borrowers or any other Guarantor, amendments, modifications, consents or waivers with respect to any Loan Document, or the sale, release, substitution or exchange of any security for any Guaranteed Obligation; or
(11) any change in the ownership of any shares of the Borrowers or any Guarantor; or
(12) any defense whatsoever that: (i) the Borrowers or any other Guarantor might have to the payment under any Loan Document, other than payment thereof in Federal or other immediately available funds, or (ii) the Borrowers or any other Guarantor might have to the performance or observance of any of the provisions of any Loan Document, whether through the satisfaction or purported satisfaction by the Borrowers or any other Guarantor of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise; or
(13) any act or failure to act with regard to any Loan Document or anything which might vary the risk of any Guarantor; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Guarantor in respect of the obligations of any Guarantor under this Guaranty; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty that the obligations of each Guarantor shall be absolute, irrevocable and unconditional and shall not be discharged, impaired or varied except by the payment of all Obligations in accordance with their respective terms whenever the same shall become due and payable and all other sums due and payable under any Loan Document, at the place specified in and all in the manner and with the effect provided in the Credit Agreement, as may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Borrowers shall default under or in respect of the terms of any Loan Document and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Borrowers under any Loan Document shall remain in full force and effect and shall apply to each and every subsequent default.
(d) All rights of the Administrative Agent or any Lender hereunder may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the appointment of a successor to the Administrative Agent or any permitted transfer by a Lender of its rights under the Credit Agreement, whether with or without the consent of or notice to the Guarantors under this Guaranty or to the Borrowers.
(e) To the extent of any payments made under this Guaranty, each Guarantor shall be subrogated to the rights of the Administrative Agent and/or the Lenders to whom such payment was made, but such Guarantor covenants and agrees that such right of subrogation shall be subordinate in right of payment to the prior indefeasible final payment in cash in full of all amounts due and owing by the Borrowers with respect to the Obligations under the Loan Documents and by the Guarantors under this Guaranty, and the Guarantors shall not take any action to enforce such right of subrogation, and the Guarantors shall not accept any payment in respect of such right of subrogation, until the Termination Date. If any amount shall be paid to any Guarantor in violation of the preceding sentence at any time prior to the indefeasible payment in cash in full of all amounts payable under the Loan Documents and this Guaranty, such amount shall be held in trust for the benefit of the Lenders and shall forthwith be paid to the Administrative Agent for the benefit of the Administrative Agent and the Lenders to be credited and applied to the amounts due or to become due with respect to all amounts payable under the Loan Documents and this Guaranty, whether matured or unmatured. Each Guarantor acknowledges that it has received direct and indirect benefits from the financing arrangements contemplated by the Loan Documents and that the waiver set forth in this paragraph (e) is knowingly made as a result of the receipt of such benefits.
(f) Each Guarantor agrees that, to the extent either Borrower, any other Guarantor or any other Person makes any payment under any of the Loan Documents, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Guarantors' obligations hereunder, as if said payment had not been made. The liability of the Guarantors hereunder shall not be reduced or discharged, in whole or in part, by any payment to the Administrative Agent or any Lender from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(g) Neither the Administrative Agent nor any Lender, shall be under any obligation: (1) to xxxxxxxx any assets in favor of the Guarantors or in payment of any or all of the liabilities of the Borrowers under or in respect of the Loan Documents or the obligations of the Guarantors hereunder or (2) to pursue any other remedy that the Guarantors may or may not be able to pursue themselves and that may lighten the Guarantors' burden, any right to which each Guarantor hereby expressly waives.
(h) The obligations of each Guarantor under this Guaranty rank pari passu in right of payment with all other Indebtedness of such Guarantor which is not secured or which is not expressly subordinated in right of payment to any other Indebtedness of such Guarantor.
Appears in 1 contract
Samples: Guaranty Agreement (Devry Inc)
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that the Administrative Agent and/or any Holder or Holders Secured Party from time to time, with or without any further notice to or assent from any other Guarantor may, without in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as any the Administrative Agent or such Holder or Holders Secured Party may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, increase, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtednessdebt, liability or obligation of the Company Adtalem or of any other Person secondarily or otherwise liable for any Indebtednessdebt, liability or obligations of the Company Adtalem on the NotesGuaranteed Obligations or under any Financing Document, or waive any Default or Event of Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this Guaranty; orFinancing Document;
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, the Administrative Agent or any such Holder Secured Party as direct or indirect security for the payment or performance of any Indebtednessdebt, liability or obligation of the Company Adtalem or of any other Person secondarily or otherwise liable for any Indebtednessdebt, liability or obligation of the Company on the NotesAdtalem under any Financing Document; orand/or
(3) settle, adjust or compromise any claim of the Company Adtalem against any other Person secondarily or otherwise liable for any Indebtednessdebt, liability or obligation of the Company on the NotesAdtalem under any Financing Document. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and agrees that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by lawLaw, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by lawLaw:
(1) notice of acceptance of this Guaranty by the Holders Administrative Agent or the Secured Parties or of the creation, renewal or accrual of any liability of the CompanyAdtalem, present or future, or of the reliance of such Holders the Administrative Agent or any of the Secured Parties upon this Guaranty (it being understood that every Indebtedness, liability and obligation all Guaranteed Obligations described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);; and
(2) demand of payment by any Holder the Administrative Agent on behalf of the Secured Parties from the Company Adtalem or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteedGuaranteed Obligations; and
(3) presentment for the payment by any Holder the Administrative Agent on behalf of the Secured Parties or any other Person of the Notes any Financing Document or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of any Holder the Administrative Agent to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of each Guarantor hereunder shall be binding upon such Guarantor and its successors and assigns, and shall remain in full force and effect until the date on which all Commitments of the Lenders shall have terminated, all Letters of Credit shall have expired or terminated and all Obligations have indefeasibly been paid in full (the “ Termination Date”) and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including, without limitation, any of the following, whether or not with notice to or the consent of any Guarantor:
(1) the genuineness, validity, regularity or enforceability of any of the Financing Documents or any of the terms of any thereof, the continuance of any obligation on the part of Adtalem or any other Guarantor on or in respect of or under any Financing Document or the power or authority or the lack of power or authority of Adtalem to execute and deliver any Financing Document or of any other Guarantor to execute and deliver this Guaranty or to perform any of its obligations hereunder or the existence or continuance of Adtalem or any other Guarantor as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by Adtalem or any other Guarantor of any obligations of any kind or character whatsoever under any Financing Document; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of Adtalem or any other Guarantor or in respect of the property of Adtalem or any other Guarantor or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of Adtalem or any other Guarantor; or
(4) impossibility or illegality of performance on the part of Adtalem or any other Guarantor of its obligations under any Financing Document; or
(5) in respect of Adtalem or any other Guarantor, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to Adtalem or any other Guarantor, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any federal or state regulatory body or agency, change of Law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of Adtalem or any other Guarantor and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, lien or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, debt, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against Adtalem or any Guarantor or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by any Guarantor, or against any sums payable in respect of or under any Financing Document, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by Adtalem or any other Guarantor of its respective obligations under or in respect of any Financing Document; or
(8) the failure of any other Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any other Guarantor of failure of Adtalem or any other Guarantor to keep and perform any obligation, covenant or agreement under the terms of any Financing Document, or this Guaranty or failure to resort for payment to Adtalem or any other Guarantor or to any other guaranty or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other guaranty, the advance of additional money to Adtalem or any other Guarantor, amendments, modifications, consents or waivers with respect to any Financing Document, or the sale, release, substitution or exchange of any security for any Guaranteed Obligation; or
(11) any change in the ownership of any shares of Adtalem or any Guarantor; or
(12) any defense whatsoever that: (i) Adtalem or any other Guarantor might have to the payment under any Financing Document, other than payment thereof in federal or other immediately available funds, or (ii) Adtalem or any other Guarantor might have to the performance or observance of any of the provisions of any Financing Document, whether through the satisfaction or purported satisfaction by Adtalem or any other Guarantor of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise; or
(13) any act or failure to act with regard to any Financing Document or anything which might vary the risk of any Guarantor; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Guarantor in respect of the obligations of any Guarantor under this Guaranty; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty that the obligations of each Guarantor shall be absolute, irrevocable and unconditional and shall not be discharged, impaired or varied except by the payment of all Obligations in accordance with their respective terms whenever the same shall become due and payable and all other sums due and payable under any Financing Document, at the place specified in and all in the manner and with the effect provided in the Credit Agreement. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, Adtalem shall default under or in respect of the terms of any Financing Document and that notwithstanding recovery hereunder for or in respect of any given default or defaults by Adtalem under any Financing Document shall remain in full force and effect and shall apply to each and every subsequent default.
(d) All rights of the Administrative Agent or any Secured Party hereunder may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the appointment of a successor to the Administrative Agent or any permitted transfer by a Lender of its rights under the Credit Agreement, whether with or without the consent of or notice to the Guarantors under this Guaranty or to Adtalem.
(e) To the extent of any payments made under this Guaranty, each Guarantor shall be subrogated to the rights of the Administrative Agent and/or the Secured Parties to whom such payment was made, but such Guarantor covenants and agrees that such right of subrogation shall be subordinate in right of payment to the prior indefeasible final payment in cash in full of all amounts due and owing by Adtalem with respect to the Obligations under the Financing Documents and by the Guarantors under this Guaranty, and the Guarantors shall not take any action to enforce such right of subrogation, and the Guarantors shall not accept any payment in respect of such right of subrogation, until the Termination Date. If any amount shall be paid to any Guarantor in violation of the preceding sentence at any time prior to the indefeasible payment in cash in full of all amounts payable under the Financing Documents and this Guaranty, such amount shall be held in trust for the benefit of the Secured Parties and shall forthwith be paid to the Administrative Agent for the benefit of the Administrative Agent and the Secured Parties to be credited and applied to the amounts due or to become due with respect to all amounts payable under the Financing Documents and this Guaranty, whether matured or unmatured. Each Guarantor acknowledges that it has received direct and indirect benefits from the financing arrangements contemplated by the Financing Documents and that the waiver set forth in this paragraph (e) is knowingly made as a result of the receipt of such benefits.
(f) Each Guarantor agrees that, to the extent Adtalem, any other Guarantor or any other Person makes any payment under any of the Financing Documents, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Guarantors’ obligations hereunder, as if said payment had not been made. The liability of the Guarantors hereunder shall not be reduced or discharged, in whole or in part, by any payment to the Administrative Agent or any Secured Party from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(g) Neither the Administrative Agent nor any Secured Party, shall be under any obligation: (1) to marshal any assets in favor of the Guarantors or in payment of any or all of the liabilities of Adtalem under or in respect of the Financing Documents or the obligations of the Guarantors hereunder or (2) to pursue any other remedy that the Guarantors may or may not be able to pursue themselves and that may lighten the Guarantors’ burden, any right to which each Guarantor hereby expressly waives.
(h) The obligations of each Guarantor under this Guaranty rank pari passu in right of payment with all other Indebtedness of such Guarantor which is not secured or which is not expressly subordinated in right of payment to any other Indebtedness of such Guarantor.
Appears in 1 contract
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any other Guarantor may, without in any manner affecting the liability or obligations of any Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligations of the Company on the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes; or
(3) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every Indebtedness, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of payment by any Holder from the Company or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of the Guarantors hereunder shall be binding upon the Guarantors and their successors and assigns, and shall remain in full force and effect until the entire principal, interest and premium, if any, on the Notes and all other sums due pursuant to Section 2 shall have been paid and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including without limitation any of the following, whether or not with notice to or the consent of the Guarantors:
(1) the validity, regularity or enforceability of the Notes, the Note Purchase Agreement or any of the terms of any thereof, the continuance of any obligation on the part of the Company, any other Guarantors or any other Person on or in respect of the Notes or under the Note Purchase Agreement or the power or authority or the lack of power or authority of the Company to issue the Notes or the Company to execute and deliver the Note Purchase Agreement or of any other Guarantors to execute and deliver this Guaranty or any other agreement or to perform any of its obligations hereunder or the existence or continuance of the Company or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by the Company, any other Guarantor or any other Person of any obligations of any kind or character whatsoever under the Notes, the Note Purchase Agreement or this Guaranty; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of the Company, any other Guarantor or any other Person or in respect of the property of the Company, any other Guarantor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the Company, any other Guarantor or any other Person; or
(4) impossibility or illegality of performance on the part of the Company, any other Guarantor or any other Person of its obligations under the Notes, the Note Purchase Agreement or this Guaranty; or
(5) in respect of the Company, any other Guarantors or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Company, any other Guarantors or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the Company, any other Guarantors or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Encumbrance, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against the Company, any Guarantor or any other Person or any claims, demands, charges or Encumbrances of any nature, foreseen or unforeseen, incurred by the Company, any Guarantor or any other Person, or against any sums payable in respect of the Notes or under the Note Purchase Agreement or this Guaranty, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by the Company, any Guarantor or any other Person of its respective obligations under or in respect of the Notes, the Note Purchase Agreement, this Guaranty or any other agreement; or
(8) the failure of any Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Guarantor of failure of the Company, any Guarantor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, the Note Purchase Agreement or this Guaranty or failure to resort for payment to the Company, any other Guarantor or to any other Person or to any other guaranty or to any property, security, Encumbrances or other rights or remedies; or
(10) the acceptance of any additional security or other guaranty, the advance of additional money to the Company or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, the Note Purchase Agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any merger or consolidation of the Company, any other Guarantor or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of the Company, any other Guarantor or any other Person to any other Person, or any change in the ownership of any shares of the Company, any other Guarantor or any other Person; or
(12) any defense whatsoever that: (i) the Company or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than payment thereof in Federal or other immediately available funds, or (ii) the Company or any other Person might have to the performance or observance of any of the provisions of the Notes or the Note Purchase Agreement, whether through the satisfaction or purported satisfaction by the Company, any other Guarantor or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise, other than the defense of indefeasible payment in full in cash of the Notes; or
(13) any act or failure to act with regard to the Notes, the Note Purchase Agreement or this Guaranty or anything which might vary the risk of any Guarantor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Guarantor or any other Person in respect of the obligations of any Guarantor or other Person under this Guaranty or any other agreement, other than the defense of indefeasible payment in full in cash of the Notes; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty and the parties hereto that the obligations of each Guarantor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the payment of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and all other sums due and payable under the Note Purchase Agreement, at the place specified in and all in the manner and with the effect provided in the Notes and the Note Purchase Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Company shall default under or in respect of the terms of the Notes or the Note Purchase Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Company under the Notes or the Note Purchase Agreement, this Guaranty shall remain in full force and effect and shall apply to each and every subsequent default.
(d) All rights of any Holder may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the valid and legal transfer of such Note pursuant to the Note Purchase Agreement whether with or without the consent of or notice to the Guarantors under this Guaranty or to the Company.
(e) To the extent of any payments made under this Guaranty, the Guarantors shall be subrogated to the rights of the Holder or Holders upon whose Notes such payment was made, but each Guarantor covenants and agrees that such right of subrogation shall be subordinate in right of payment to the prior indefeasible final payment in cash in full of all amounts due and owing by the Company with respect to the Notes and the Note Purchase Agreement and by the Guarantors under this Guaranty, and the Guarantors shall not take any action to enforce such right of subrogation, and the Guarantors shall not accept any payment in respect of such right of subrogation, until all amounts due and owing by the Company under or in respect of the Notes and the Note Purchase Agreement and all amounts due and owing by the Guarantors hereunder have indefeasibly been finally paid in cash in full. If any amount shall be paid to any Guarantor in violation of the preceding sentence at any time prior to the indefeasible payment in cash in full of the Notes and all other amounts payable under the Notes, the Note Purchase Agreement and this Guaranty, such amount shall be held in trust for the benefit of the Holders and shall forthwith be paid to the Holders to be credited and applied to the amounts due or to become due with respect to the Notes and all other amounts payable under the Note Purchase Agreement and this Guaranty, whether matured or unmatured. Each Guarantor acknowledges that it has received direct and indirect benefits from the financing arrangements contemplated by the Note Purchase Agreement and that the waiver set forth in this paragraph (e) is knowingly made as a result of the receipt of such benefits.
Appears in 1 contract
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any other Guarantor may, without in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligations of the Company on the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or waive this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes; or
(3) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every Indebtedness, liability and obligation described in Section SECTION 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of payment by any Holder from the Company or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of the Guarantors hereunder shall be binding upon the Guarantors and their successors and assigns, and shall remain in full force and effect irrespective of:
(1) the genuineness, validity, regularity or enforceability of the Notes, the Note Purchase Agreements or any other agreement or any of the terms of any thereof, the continuance of any obligation on the part of the Company or any other Person on or in respect of the Notes or under the Note Purchase Agreements or any other agreement or the power or authority or the lack of power or authority of the Company to issue the Notes or the Company to execute and deliver the Note Purchase Agreements or any other agreement or of any Guarantor to execute and deliver this Guaranty or to perform any of its obligations hereunder or the existence or continuance of the Company or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by the Company, any Guarantor or any other Person of any obligations of any kind or character whatsoever under the Notes, the Note Purchase Agreements, this Guaranty or any other agreement; or
(3) any creditors' rights, bankruptcy, receivership or other insolvency proceeding of the Company, any Guarantor or any other Person or in respect of the property of the Company, any Guarantor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the Company, any Guarantor or any other Person; or
(4) impossibility or illegality of performance on the part of the Company, any Guarantor or any other Person of its obligations under the Notes, the Note Purchase Agreements, this Guaranty or any other agreements; or
(5) in respect of the Company or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Company or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other FORCE MAJEURE, whether or not beyond the control of the Company or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against the Company, any Guarantor or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by the Company, any Guarantor or any other Person, or against any sums payable in respect of the Notes or under the Note Purchase Agreements or this Guaranty, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by the Company, any Guarantor or any other Person of its respective obligations under or in respect of the Notes, the Note Purchase Agreements, this Guaranty or any other agreement; or
(8) the failure of any Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Guarantor of failure of the Company, any Guarantor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, the Note Purchase Agreements, this Guaranty or any other agreement or failure to resort for payment to the Company, any Guarantor or to any other Person or to any other guaranty or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other guaranty, the advance of additional money to the Company or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, the Note Purchase Agreements or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any merger or consolidation of the Company, any Guarantor or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of the Company, any Guarantor or any other Person to any other Person, or any change in the ownership of any shares of the Company, any Guarantor or any other Person; or
(12) any defense whatsoever that: (i) the Company or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than payment thereof in Federal or other immediately available funds, or (ii) the Company or any other Person might have to the performance or observance of any of the provisions of the Notes, the Note Purchase Agreements or any other agreement, whether through the satisfaction or purported satisfaction by the Company or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise, other than the defense of indefeasible payment in full in cash of the Notes; or
(13) any act or failure to act with regard to the Notes, the Note Purchase Agreements, this Guaranty or any other agreement or anything which might vary the risk of any Guarantor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Guarantor or any other Person in respect of the obligations of any Guarantor or other Person under this Guaranty or any other agreement, other than the defense of indefeasible payment in full in cash of the Notes; PROVIDED that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty and the parties hereto that the obligations of each Guarantor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the payment of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided, at the place specified in and all in the manner and with the effect provided in the Notes and the Note Purchase Agreements, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Company shall default under or in respect of the terms of the Notes or the Note Purchase Agreements and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Company under the Notes or the Note Purchase Agreements, this Guaranty shall remain in full force and effect and shall apply to each and every subsequent default.
(d) All rights of any Holder may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the transfer of such Note whether with or without the consent of or notice to the Guarantors under this Guaranty or to the Company.
(e) To the extent of any payments made under this Guaranty, the Guarantors shall be subrogated to the rights of the Holder or Holders upon whose Notes such payment was made, but each Guarantor covenants and agrees that such right of subrogation shall be junior and subordinate in right of payment to the prior indefeasible final payment in cash in full of all amounts due and owing by the Company with respect to the Notes and the Note Purchase Agreements and by the Guarantors under this Guaranty, and the Guarantors shall not take any action to enforce such right of subrogation, and the Guarantors shall not accept any payment in respect of such right of subrogation, until all amounts due and owing by the Company under or in respect of the Notes and the Note Purchase Agreements and all amounts due and owing by the Guarantors hereunder have indefeasibly been finally paid in cash in full. If any amount shall be paid to any Guarantor in violation of the preceding sentence at any time prior to the indefeasible payment in cash in full of the Notes and all other amounts payable under the Notes, the Note Purchase Agreements and this Guaranty, such amount shall be held in trust for the benefit of the Holders and shall forthwith be paid to the Holders to be credited and applied to the amounts due or to become due with respect to the Notes and all other amounts payable under the Note Purchase Agreements and this Guaranty, whether matured or unmatured.
(f) To the extent of any payments made under this Guaranty, each Guarantor making such payment shall have a right of contribution from the other Guarantors, but such Guarantor covenants and agrees that such right of contribution shall be subordinate in right of payment to the rights of the Holders for which full payment has not been made or provided for and, to that end, such Guarantor agrees not to claim or enforce any such right of contribution unless and until all of the Notes and all other sums due and payable under the Note Purchase Agreements have been fully and irrevocably paid and discharged.
(g) Each Guarantor agrees that to the extent the Company or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Guarantors' obligations hereunder, as if said payment had not been made. The liability of the Guarantors hereunder shall not be reduced or discharged, in whole or in part, by any payment to any Holder from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(h) No Holder shall be under any obligation: (1) to marshal any assets in favor of the Guarantors or in payment of any or all of the liabilities of the Company under or in respect of the Notes or the obligations of the Guarantors hereunder or (2) to pursue any other remedy that the Guarantors may or may not be able to pursue themselves and that may lighten the Guarantors' burden, any right to which each Guarantor hereby expressly waives.
Appears in 1 contract
Samples: Subsidiary Guaranty Agreement (Suburban Propane Partners Lp)
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each The Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any other Guarantor time may, without in any manner affecting the liability or obligations of any the Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligations of the Company on the Notes, or waive any Default or Event of Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes; or
(3) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes. Each The Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such the Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each The Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every Indebtedness, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of payment by any Holder from the Company or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such the Guarantor. The obligations of each the Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by indefeasible payment in full in cash of the Notes and the obligations of the Company under the Note Purchase Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of the Guarantor hereunder shall be binding upon the Guarantor and its successors and assigns, and shall remain in full force and effect until the entire principal, interest and premium, if any, on the Notes and all other sums due pursuant to Section 2 shall have been irrevocably and indefeasibly paid in full in cash and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including without limitation any of the following, whether or not with notice to or the consent of the Guarantor:
(1) the validity, regularity or enforceability of the Notes, the Note Purchase Agreement or any of the terms of any thereof, the continuance of any obligation on the part of the Company or any other Person on or in respect of the Notes or under the Note Purchase Agreement or the power or authority or the lack of power or authority of the Company to issue the Notes or the Company to execute and deliver the Note Purchase Agreement or the existence or continuance of the Company or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by the Company or any other Person of any obligations of any kind or character whatsoever under the Notes or the Note Purchase Agreement; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of the Company or any other Person or in respect of the property of the Company or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the Company or any other Person; or
(4) impossibility or illegality of performance on the part of the Company or any other Person of its obligations under the Notes or the Note Purchase Agreement; or
(5) in respect of the Company, any other Guarantors or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Company, any other Guarantors or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the Company or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Encumbrance, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against the Guarantor, the Company or any other Person or any claims, demands, charges or Encumbrances of any nature, foreseen or unforeseen, incurred by the Company or any other Person, or against any sums payable in respect of the Notes or under the Note Purchase Agreement or this Guaranty, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by the Guarantor, the Company or any other Person of its respective obligations under or in respect of the Notes, the Note Purchase Agreement or this Guaranty; or
(8) the failure of the Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to the Guarantor of failure of the Company or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, the Note Purchase Agreement or this Guaranty or failure to resort for payment to the Company or to any other Person or to any other guaranty or to any property, security, Encumbrances or other rights or remedies; or
(10) the acceptance of any additional security or other guaranty, the advance of additional money to the Company or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, the Note Purchase Agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any merger or consolidation of the Company or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of the Company or any other Person to any other Person, or any change in the ownership of any shares of the Company or any other Person; or
(12) any defense whatsoever that: (i) the Company or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than payment thereof in Federal or other immediately available funds, or (ii) the Company or any other Person might have to the performance or observance of any of the provisions of the Notes or the Note Purchase Agreement, whether through the satisfaction or purported satisfaction by the Company or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise, other than the defense of indefeasible payment in full in cash of the Notes; or
(13) any act or failure to act with regard to the Notes, the Note Purchase Agreement or this Guaranty or anything which might vary the risk of the Guarantor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Guarantor or any other Person in respect of the obligations of the Guarantor or other Person under this Guaranty or any other agreement, other than the defense of indefeasible payment in full in cash of the Notes; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty and the parties hereto that the obligations of the Guarantor hereunder shall be absolute and unconditional and shall not be discharged, impaired or varied except by the indefeasible payment in full in cash of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and all other sums due and payable under the Note Purchase Agreement, at the place specified in and all in the manner and with the effect provided in the Notes and the Note Purchase Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Company shall default under or in respect of the terms of the Notes or the Note Purchase Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Company under the Notes or the Note Purchase Agreement, this Guaranty shall remain in full force and effect and shall apply to each and every subsequent default.
Appears in 1 contract
Samples: Note Purchase Agreement (Mid America Apartment Communities Inc)
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each The Guarantor hereby consents and agrees that any Holder or that, subject to the provisions of the Assumption and Exchange Agreement, the Required Holders from time to time, with or without any further notice to or assent from any other Guarantor may, time may without in any manner affecting the liability of any the Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or the Required Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any IndebtednessDebt, liability or obligation of the Company Regulated Subsidiary or of any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligations of the Company Regulated Subsidiary on the Regulated Subsidiary Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any IndebtednessDebt, liability or obligation of the Company Regulated Subsidiary or of any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligation of the Company Regulated Subsidiary on the Regulated Subsidiary Notes; or
(3) settle, adjust or compromise any claim of the Company Regulated Subsidiary against any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligation of the Company Regulated Subsidiary on the Regulated Subsidiary Notes. Each The Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such the Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each The Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the CompanyRegulated Subsidiary, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every IndebtednessDebt, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of payment by any Holder from the Company Regulated Subsidiary or any other Person indebted in any manner on or for any of the IndebtednessDebt, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Regulated Subsidiary Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such the Guarantor. The obligations of each the Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of the Guarantor hereunder shall be binding upon the Guarantor and its successors and assigns, and shall remain in full force and effect irrespective of:
(1) the genuineness, validity, regularity or enforceability of the Regulated Subsidiary Notes, the Assumption and Exchange Agreement or any other agreement or any of the terms of any thereof, the continuance of any obligation on the part of the Regulated Subsidiary, or any other Person on or in respect of the Regulated Subsidiary Notes or under the Assumption and Exchange Agreement or any other agreement or the power or authority or the lack of power or authority of the Regulated Subsidiary to issue the Regulated Subsidiary Notes or the Regulated Subsidiary to execute and deliver the Assumption and Exchange Agreement or any other agreement or of the Guarantor to execute and deliver this Guaranty or to perform any of its obligations hereunder or the existence or continuance of the Company or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by the Regulated Subsidiary or any other Person of any obligations of any kind or character whatsoever under the Regulated Subsidiary Notes, the Assumption and Exchange Agreement or any other agreement; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of the Regulated Subsidiary or any other Person or in respect of the property of the Regulated Subsidiary or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the Regulated Subsidiary or any other Person; or
(4) impossibility or illegality of performance on the part of the Regulated Subsidiary, the Guarantor or any other Person of its obligations under the Regulated Subsidiary Notes, the Assumption and Exchange Agreement or any other agreements; or
(5) in respect of the Regulated Subsidiary, the Guarantor or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Regulated Subsidiary, the Guarantor or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the Regulated Subsidiary, the Guarantor or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Debt, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against the Regulated Subsidiary, the Guarantor or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by any Person, or against any sums payable in respect of the Regulated Subsidiary Notes or under the Assumption and Exchange Agreement or this Guaranty, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by the Regulated Subsidiary, the Guarantor or any other Person of its respective obligations under or in respect of the Regulated Subsidiary Notes, the Assumption and Exchange Agreement, this Guaranty or any other agreement; or
(8) the failure of the Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to the Guarantor of failure of the Regulated Subsidiary or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Regulated Subsidiary Notes, the Assumption and Exchange Agreement, this Guaranty or any other agreement or failure to resort for payment to the Regulated Subsidiary, the Guarantor or to any other Person or to any other guaranty or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other guaranty, the advance of additional money to the Regulated Subsidiary or any other Person, the renewal or extension of the Regulated Subsidiary Notes or amendments, modifications, consents or waivers with respect to the Regulated Subsidiary Notes, the Assumption and Exchange Agreement or any other agreement, or the sale, release, substitution or exchange of any security for the Regulated Subsidiary Notes; or
(11) any merger or consolidation of the Guarantor, the Regulated Subsidiary or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of the Guarantor, the Regulated Subsidiary or any other Person to any other Person, or any change in the ownership of any shares of the Guarantor, the Regulated Subsidiary or any other Person; or
(12) any defense whatsoever that: (i) the Regulated Subsidiary or any other Person might have to the payment of the Regulated Subsidiary Notes (principal, premium, if any, or interest), other than payment thereof in Federal or other immediately available funds, or (ii) the Regulated Subsidiary or any other Person might have to the performance or observance of any of the provisions of the Regulated Subsidiary Notes, the Assumption and Exchange Agreement or any other agreement, whether through the satisfaction or purported satisfaction by the Regulated Subsidiary, the Guarantor or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise; or
(13) any act or failure to act with regard to the Regulated Subsidiary Notes, the Assumption and Exchange Agreement, this Guaranty or any other agreement or anything which might vary the risk of the Guarantor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Guarantor or any other Person in respect of the obligations of the Guarantor or other Person under this Guaranty or any other agreement; provided, that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty that the obligations of the Guarantor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the payment of the principal of, premium, if any, and interest on the Regulated Subsidiary Notes in accordance with their respective terms whenever the same shall become due and payable as in the Regulated Subsidiary Notes provided and all other sums due and payable under the Assumption and Exchange Agreement, at the place specified in and all in the manner and with the effect provided in the Regulated Subsidiary Notes and the Assumption and Exchange Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Regulated Subsidiary shall default under or in respect of the terms of the Regulated Subsidiary Notes or the Assumption and Exchange Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Regulated Subsidiary under the Regulated Subsidiary Notes or the Assumption and Exchange Agreement, this Guaranty shall remain in full force and effect and shall apply to each and every subsequent default.
(d) Subject to the limitations under the Assumption and Exchange Agreement on the rights of a Holder to transfer or assign the Regulated Subsidiary Notes, all rights of any Holder may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the transfer of such Note whether with or without the consent of or notice to the Guarantor under this Guaranty or to the Regulated Subsidiary.
(e) To the extent of any payments made under this Guaranty, the Guarantor shall be subrogated to the rights of the Holder upon whose Regulated Subsidiary Notes such payment was made, but the Guarantor covenants and agrees that such right of subrogation shall be subordinate in right of payment to the prior indefeasible final payment in cash in full of all amounts due and owing by the Regulated Subsidiary with respect to the Regulated Subsidiary Notes and the Assumption and Exchange Agreement and by the Guarantor under this Guaranty, and the Guarantor shall not take any action to enforce such right of subrogation, and the Guarantor shall not accept any payment in respect of such right of subrogation, until all amounts due and owing by the Regulated Subsidiary under or in respect of the Regulated Subsidiary Notes and the Assumption and Exchange Agreement and all amounts due and owing by the Guarantor hereunder have indefeasibly been finally paid in cash in full. If any amount shall be paid to the Guarantor in violation of the preceding sentence at any time prior to the later of the indefeasible payment in cash in full of the Regulated Subsidiary Notes and all other amounts payable under the Regulated Subsidiary Notes, the Assumption and Exchange Agreement and this Guaranty, such amount shall be held in trust for the benefit of the Holders and shall forthwith be paid to the Holders to be credited and applied to the amounts due or to become due with respect to the Regulated Subsidiary Notes and all other amounts payable under the Assumption and Exchange Agreement and this Guaranty, whether matured or unmatured. The Guarantor acknowledges that it has received direct and indirect benefits from the financing arrangements contemplated by the Note Purchase Agreement and the Assumption and Exchange Agreement and that the waiver set forth in this paragraph (e) is knowingly made as a result of the receipt of such benefits.
(f) The Guarantor agrees that to the extent the Regulated Subsidiary, the Guarantor or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Guarantor’s obligations hereunder, as if said payment had not been made. The liability of the Guarantor hereunder shall not be reduced or discharged, in whole or in part, by any payment to any Holder from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(g) No Holder shall be under any obligation: (1) to marshal any assets in favor of the Guarantor or in payment of any or all of the liabilities of the Regulated Subsidiary under or in respect of the Regulated Subsidiary Notes or the obligations of the Guarantor hereunder or (2) to pursue any other remedy that the Guarantor may or may not be able to pursue themselves and that may lighten the Guarantor’s burden, any right to which the Guarantor hereby expressly waives.
(h) The obligations of the Guarantor under this Guaranty rank pari passu in right of payment with all other Debt of the Guarantor which is not secured or which is not expressly subordinated in right of payment to any other Debt of the Guarantor.
Appears in 1 contract
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that that, to the fullest extent permitted by applicable law, any Holder or Holders from time to time, with or without any further notice to or assent from any other Guarantor Guarantor, may, without in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any IndebtednessDebt, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligations of the Company on the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any IndebtednessDebt, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligation of the Company on the Notes; or
(3) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligation of the Company on the Notes. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every IndebtednessDebt, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of payment by any Holder from the Company or any other Person indebted in any manner on or for any of the IndebtednessDebt, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement), whether by reason of any claim of any character whatsoever or otherwise and and, to the fullest extent permitted by applicable law, shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
Appears in 1 contract
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that any Holder or Holders from time to time, time with or without any further notice to or the assent from of any other Guarantor mayGuarantor, may without in any manner affecting the liability of any other Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any IndebtednessDebt, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligations of the Company on the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any IndebtednessDebt, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligation of the Company on the Notes; or
(3) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligation of the Company on the Notes. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every Indebtedness, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of payment by any Holder from the Company or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
Appears in 1 contract
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any other Guarantor may, without in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any IndebtednessDebt, liability or obligation of the Company or of any other Person (including, without limitation, any other Guarantor) secondarily or otherwise liable for any IndebtednessDebt, liability or obligations obligation of the Company on the Notes, or waive any Default or Event of Default with respect thereto, or waive, modify, amend or change any provision of the Note Purchase Agreement any other agreement or waive this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any IndebtednessDebt, liability or obligation of the Company or of any other Person (including, without limitation, any other Guarantor) secondarily or otherwise liable for any IndebtednessDebt, liability or obligation of the Company on the Notes; or
(3) settle, adjust or compromise any claim of the Company against any other Person (including, without limitation, any other Guarantor) secondarily or otherwise liable for any IndebtednessDebt, liability or obligation of the Company on the Notes. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every IndebtednessDebt, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of payment by any Holder from the Company or any other Person (including, without limitation, any other Guarantor) indebted in any manner on or for any of the IndebtednessDebt, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of the Guarantors hereunder shall be binding upon the Guarantors and their successors and assigns, and shall remain in full force and effect irrespective of:
(1) the genuineness, validity, regularity or enforceability of the Notes, the Note Purchase Agreement or any other agreement or any of the terms of any thereof, the continuance of any obligation on the part of the Company or any other Person on or in respect of the Notes or under the Note Purchase Agreement or any other agreement or the power or authority or the lack of power or authority of the Company to issue the Notes or the Company to execute and deliver the Note Purchase Agreement or any other agreement or of any Guarantor to execute and deliver this Guaranty or to perform any of its obligations hereunder or the existence or continuance of the Company or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by the Company, any Guarantor or any other Person of any obligations of any kind or character whatsoever under the Notes, the Note Purchase Agreement, this Guaranty or any other agreement; or
Appears in 1 contract
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that any Holder or Holders Holders, subject to the terms of the Note Agreement and the Notes, from time to time, with or without any further notice to or assent from any other Guarantor may, without in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligations of the Company on the Notes, or waive any Default or Event of Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this Guarantyagreement; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes; or
(3) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every Indebtedness, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of payment by any Holder from the Company or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by indefeasible payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
Appears in 1 contract
Samples: Master Note Agreement (Graco Inc)
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that the Administrative Agent and/or any Holder or Holders Secured Party from time to time, with or without any further notice to or assent from any other Guarantor may, without in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as any the Administrative Agent or such Holder or Holders Secured Party may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, increase, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtednessdebt, liability or obligation of the Company Borrowers or of any other Person secondarily or otherwise liable for any Indebtednessdebt, liability or obligations of the Company Borrowers on the NotesGuaranteed Obligations or under any Financing Document, or waive any Default or Event of Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this Guaranty; orFinancing Document;
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, the Administrative Agent or any such Holder Secured Party as direct or indirect security for the payment or performance of any Indebtednessdebt, liability or obligation of the Company Borrowers or of any other Person secondarily or otherwise liable for any Indebtednessdebt, liability or obligation of the Company on the NotesBorrowers under any Financing Document; orand/or
(3) settle, adjust or compromise any claim of the Company Borrowers against any other Person secondarily or otherwise liable for any Indebtednessdebt, liability or obligation of the Company on the NotesBorrowers under any Financing Document. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and agrees that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by lawLaw, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by lawLaw:
(1) notice of acceptance of this Guaranty by the Holders Administrative Agent or the Secured Parties or of the creation, renewal or accrual of any liability of the CompanyBorrowers, present or future, or of the reliance of such Holders the Administrative Agent or any of the Secured Parties upon this Guaranty (it being understood that every Indebtedness, liability and obligation all Guaranteed Obligations described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);; and
(2) demand of payment by any Holder the Administrative Agent on behalf of the Secured Parties from the Company Borrowers or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteedGuaranteed Obligations; and
(3) presentment for the payment by any Holder the Administrative Agent on behalf of the Secured Parties or any other Person of the Notes any Financing Document or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of any Holder the Administrative Agent to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of each Guarantor hereunder shall be binding upon such Guarantor and its successors and assigns, and shall remain in full force and effect until the date on which all Commitments of the Lenders shall have terminated, all Letters of Credit shall have expired or terminated and all Obligations have indefeasibly been paid in full (the “Termination Date”) and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including, without limitation, any of the following, whether or not with notice to or the consent of any Guarantor:
(1) the genuineness, validity, regularity or enforceability of any of the Financing Documents or any of the terms of any thereof, the continuance of any obligation on the part of the Borrowers or any other Guarantor on or in respect of or under any Financing Document or the power or authority or the lack of power or authority of the Borrowers to execute and deliver any Financing Document or of any other Guarantor to execute and deliver this Guaranty or to perform any of its obligations hereunder or the existence or continuance of the Borrowers or any other Guarantor as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by the Borrowers or any other Guarantor of any obligations of any kind or character whatsoever under any Financing Document; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of the Borrowers or any other Guarantor or in respect of the property of the Borrowers or any other Guarantor or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the Borrowers or any other Guarantor; or
(4) impossibility or illegality of performance on the part of the Borrowers or any other Guarantor of its obligations under any Financing Document; or
(5) in respect of the Borrowers or any other Guarantor, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Borrowers or any other Guarantor, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any federal or state regulatory body or agency, change of Law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the Borrowers or any other Guarantor and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, lien or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, debt, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against the Borrowers or any Guarantor or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by any Guarantor, or against any sums payable in respect of or under any Financing Document, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by the Borrowers or any other Guarantor of its respective obligations under or in respect of any Financing Document; or
(8) the failure of any other Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any other Guarantor of failure of the Borrowers or any other Guarantor to keep and perform any obligation, covenant or agreement under the terms of any Financing Document, or this Guaranty or failure to resort for payment to the Borrowers or any other Guarantor or to any other guaranty or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other guaranty, the advance of additional money to the Borrowers or any other Guarantor, amendments, modifications, consents or waivers with respect to any Financing Document, or the sale, release, substitution or exchange of any security for any Guaranteed Obligation; or
(11) any change in the ownership of any shares of the Borrowers or any Guarantor; or
(12) any defense whatsoever that: (i) the Borrowers or any other Guarantor might have to the payment under any Financing Document, other than payment thereof in federal or other immediately available funds, or (ii) the Borrowers or any other Guarantor might have to the performance or observance of any of the provisions of any Financing Document, whether through the satisfaction or purported satisfaction by the Borrowers or any other Guarantor of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise; or
(13) any act or failure to act with regard to any Financing Document or anything which might vary the risk of any Guarantor; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Guarantor in respect of the obligations of any Guarantor under this Guaranty; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty that the obligations of each Guarantor shall be absolute, irrevocable and unconditional and shall not be discharged, impaired or varied except by the payment of all Obligations in accordance with their respective terms whenever the same shall become due and payable and all other sums due and payable under any Financing Document, at the place specified in and all in the manner and with the effect provided in the Credit Agreement. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Borrowers shall default under or in respect of the terms of any Financing Document and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Borrowers under any Financing Document shall remain in full force and effect and shall apply to each and every subsequent default.
(d) All rights of the Administrative Agent or any Secured Party hereunder may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the appointment of a successor to the Administrative Agent or any permitted transfer by a Lender of its rights under the Credit Agreement, whether with or without the consent of or notice to the Guarantors under this Guaranty or to the Borrowers.
(e) To the extent of any payments made under this Guaranty, each Guarantor shall be subrogated to the rights of the Administrative Agent and/or the Secured Parties to whom such payment was made, but such Guarantor covenants and agrees that such right of subrogation shall be subordinate in right of payment to the prior indefeasible final payment in cash in full of all amounts due and owing by the Borrowers with respect to the Obligations under the Financing Documents and by the Guarantors under this Guaranty, and the Guarantors shall not take any action to enforce such right of subrogation, and the Guarantors shall not accept any payment in respect of such right of subrogation, until the Termination Date. If any amount shall be paid to any Guarantor in violation of the preceding sentence at any time prior to the indefeasible payment in cash in full of all amounts payable under the Financing Documents and this Guaranty, such amount shall be held in trust for the benefit of the Secured Parties and shall forthwith be paid to the Administrative Agent for the benefit of the Administrative Agent and the Secured Parties to be credited and applied to the amounts due or to become due with respect to all amounts payable under the Financing Documents and this Guaranty, whether matured or unmatured. Each Guarantor acknowledges that it has received direct and indirect benefits from the financing arrangements contemplated by the Financing Documents and that the waiver set forth in this paragraph (e) is knowingly made as a result of the receipt of such benefits.
(f) Each Guarantor agrees that, to the extent any Borrower, any other Guarantor or any other Person makes any payment under any of the Financing Documents, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Guarantors’ obligations hereunder, as if said payment had not been made. The liability of the Guarantors hereunder shall not be reduced or discharged, in whole or in part, by any payment to the Administrative Agent or any Secured Party from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(g) Neither the Administrative Agent nor any Secured Party, shall be under any obligation: (1) to marshal any assets in favor of the Guarantors or in payment of any or all of the liabilities of the Borrowers under or in respect of the Financing Documents or the obligations of the Guarantors hereunder or (2) to pursue any other remedy that the Guarantors may or may not be able to pursue themselves and that may lighten the Guarantors’ burden, any right to which each Guarantor hereby expressly waives.
(h) The obligations of each Guarantor under this Guaranty rank pari passu in right of payment with all other Indebtedness of such Guarantor which is not secured or which is not expressly subordinated in right of payment to any other Indebtedness of such Guarantor.
Appears in 1 contract
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any other Guarantor may, without in any manner affecting the liability or obligations of any Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligations of the Company on the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes; or
(3) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every Indebtedness, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of payment by any Holder from the Company or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of the Guarantors hereunder shall be binding upon the Guarantors and their successors and assigns, and shall remain in full force and effect until the entire principal, interest and premium, if any, on the Notes and all other sums due pursuant to Section 2 shall have been paid and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including without limitation any of the following, whether or not with notice to or the consent of the Guarantors:
(1) the genuineness, validity, regularity or enforceability of the Notes, the Note Purchase Agreement or any of the terms of any thereof, the continuance of any obligation on the part of the Company, any other Guarantors or any other Person on or in respect of the Notes or under the Note Purchase Agreement or the power or authority or the lack of power or authority of the Company to issue the Notes or the Company to execute and deliver the Note Purchase Agreement or of any other Guarantors to execute and deliver this Guaranty or any other agreement or to perform any of its obligations hereunder or the existence or continuance of the Company or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by the Company, any other Guarantor or any other Person of any obligations of any kind or character whatsoever under the Notes, the Note Purchase Agreement or this Guaranty; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of the Company, any other Guarantor or any other Person or in respect of the property of the Company, any other Guarantor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the Company, any other Guarantor or any other Person; or
(4) impossibility or illegality of performance on the part of the Company, any other Guarantor or any other Person of its obligations under the Notes, the Note Purchase Agreement or this Guaranty; or
(5) in respect of the Company, any other Guarantors or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Company, any other Guarantors or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the Company, any other Guarantors or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against the Company, any Guarantor or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by the Company, any Guarantor or any other Person, or against any sums payable in respect of the Notes or under the Note Purchase Agreement or this Guaranty, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by the Company, any Guarantor or any other Person of its respective obligations under or in respect of the Notes, the Note Purchase Agreement, this Guaranty or any other agreement; or
(8) the failure of any Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Guarantor of failure of the Company, any Guarantor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, the Note Purchase Agreement or this Guaranty or failure to resort for payment to the Company, any other Guarantor or to any other Person or to any other guaranty or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other guaranty, the advance of additional money to the Company or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, the Note Purchase Agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any merger or consolidation of the Company, any other Guarantor or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of the Company, any other Guarantor or any other Person to any other Person, or any change in the ownership of any shares of the Company, any other Guarantor or any other Person; or
(12) any defense whatsoever that: (i) the Company or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than payment thereof in Federal or other immediately available funds, or (ii) the Company or any other Person might have to the performance or observance of any of the provisions of the Notes or the Note Purchase Agreement, whether through the satisfaction or purported satisfaction by the Company, any other Guarantor or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise, other than the defense of indefeasible payment in full in cash of the Notes; or
(13) any act or failure to act with regard to the Notes, the Note Purchase Agreement or this Guaranty or anything which might vary the risk of any Guarantor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Guarantor or any other Person in respect of the obligations of any Guarantor or other Person under this Guaranty or any other agreement, other than the defense of indefeasible payment in full in cash of the Notes; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty and the parties hereto that the obligations of each Guarantor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the payment of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and all other sums due and payable under the Note Purchase Agreement, at the place specified in and all in the manner and with the effect provided in the Notes and the Note Purchase Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Company shall default under or in respect of the terms of the Notes or the Note Purchase Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Company under the Notes or the Note Purchase Agreement, this Guaranty shall remain in full force and effect and shall apply to each and every subsequent default.
(d) All rights of any Holder may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the valid and legal transfer of such Note pursuant to the Note Purchase Agreement whether with or without the consent of or notice to the Guarantors under this Guaranty or to the Company.
(e) To the extent of any payments made under this Guaranty, the Guarantors shall be subrogated to the rights of the Holder or Holders upon whose Notes such payment was made, but each Guarantor covenants and agrees that such right of subrogation shall be junior and subordinate in right of payment to the prior indefeasible final payment in cash in full of all amounts due and owing by the Company with respect to the Notes and the Note Purchase Agreement and by the Guarantors under this Guaranty, and the Guarantors shall not take any action to enforce such right of subrogation, and the Guarantors shall not accept any payment in respect of such right of subrogation, until all amounts due and owing by the Company under or in respect of the Notes and the Note Purchase Agreement and all amounts due and owing by the Guarantors hereunder have indefeasibly been finally paid in cash in full. If any amount shall be paid to any Guarantor in violation of the preceding sentence at any time prior to the indefeasible payment in cash in full of the Notes and all other amounts payable under the Notes, the Note Purchase Agreement and this Guaranty, such amount shall be held in trust for the benefit of the Holders and shall forthwith be paid to the Holders to be credited and applied to the amounts due or to become due with respect to the Notes and all other amounts payable under the Note Purchase Agreement and this Guaranty, whether matured or unmatured. Each Guarantor acknowledges that it has received direct and indirect benefits from the financing arrangements contemplated by the Note Purchase Agreement and that the waiver set forth in this paragraph (e) is knowingly made as a result of the receipt of such benefits.
(f) To the extent of any payments made under this Guaranty, each Guarantor making such payment shall have a right of contribution from the other Guarantors, but such Guarantor covenants and agrees that such right of contribution shall be subordinate in right of payment to the rights of the Holders for which full payment has not been made or provided for and, to that end, such Guarantor agrees not to claim or enforce any such right of contribution unless and until all of the Notes and all other sums due and payable under the Note Purchase Agreement have been fully and irrevocably paid and discharged.
(g) Each Guarantor agrees that to the extent the Company, any other Guarantor or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Guarantors’ obligations hereunder, as if said payment had not been made. The liability of the Guarantors hereunder shall not be reduced or discharged, in whole or in part, by any payment to any Holder from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(h) No Holder shall be under any obligation: (1) to marshal any assets in favor of the Guarantors or in payment of any or all of the liabilities of the Company under or in respect of the Notes or the obligations of the Guarantors hereunder or (2) to pursue any other remedy that the Guarantors may or may not be able to pursue themselves and that may lighten the Guarantors’ burden, any right to which each Guarantor hereby expressly waives.
(i) The obligations of each Guarantor under this Guaranty rank pari passu in right of payment with all other Indebtedness of such Guarantor which is not secured or which is not expressly subordinated in right of payment to any other Indebtedness of such Guarantor.
Appears in 1 contract
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any other Guarantor may, without in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, increase, change, compromise, release or extend the duration of the time for the performance or payment of any IndebtednessDebt, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligations of the Company on the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any IndebtednessDebt, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligation of the Company on the Notes; or
(3) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligation of the Company on the Notes. Libbey Glass Inc. Subsidiary Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every Indebtednessall Debt, liability liabilities and obligation obligations described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);; and
(2) demand of payment by any Holder from the Company or any other Person indebted in any manner on or for any of the IndebtednessDebt, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of each Guarantor hereunder shall be binding upon such Guarantor and its successors and assigns, and shall remain in full force and effect until the entire principal, interest, and Make-Whole Amount, if any, Series Premium Amount, if any, and LIBOR Breakage Amount, if any, on the Notes and all other sums due pursuant to Section 2 hereof shall have been paid and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including, without limitation, any of the following, whether or not with notice to or the consent of any Guarantor:
(1) the genuineness, validity, regularity or enforceability of the Notes, the Note Purchase Agreement or any other agreement or any of the terms of any thereof, the continuance of any obligation on the part of the Company, any other Guarantor or any other Person on or in respect of the Notes or under the Note Purchase Agreement or any other agreement or the power or authority or the lack of power or authority of the Company to issue the Notes or the Company to execute and deliver the Note Purchase Agreement or any other agreement or of any other Guarantor to execute and deliver this
Appears in 1 contract
Samples: Subsidiary Guaranty (Libbey Inc)
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any other Guarantor may, without in any manner affecting the liability or obligations of any Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligations of the Company on the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes; or
(3) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every Indebtedness, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of payment by any Holder from the Company or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of the Guarantors hereunder shall be binding upon the Guarantors and their successors and assigns, and shall remain in full force and effect until the entire principal, interest and premium, if any, on the Notes and all other sums due pursuant to Section 2 shall have been paid and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including without limitation any of the following, whether or not with notice to or the consent of the Guarantors:
(1) the validity, regularity or enforceability of the Notes, the Note Purchase Agreement or any of the terms of any thereof, the continuance of any obligation on the part of the Company, any other Guarantors or any other Person on or in respect of the Notes or under the Note Purchase Agreement or the power or authority or the lack of power or authority of the Company to issue the Notes or the Company to execute and deliver the Note Purchase Agreement or of any other Guarantors to execute and deliver this Guaranty or any other agreement or to perform any of its obligations hereunder or the existence or continuance of the Company or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by the Company, any other Guarantor or any other Person of any obligations of any kind or character whatsoever under the Notes, the Note Purchase Agreement or this Guaranty; or
(3) any creditors' rights, bankruptcy, receivership or other insolvency proceeding of the Company, any other Guarantor or any other Person or in respect of the property of the Company, any other Guarantor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the Company, any other Guarantor or any other Person; or
(4) impossibility or illegality of performance on the part of the Company, any other Guarantor or any other Person of its obligations under the Notes, the Note Purchase Agreement or this Guaranty; or
(5) in respect of the Company, any other Guarantors or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Company, any other Guarantors or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the Company, any other Guarantors or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Encumbrance, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against the Company, any Guarantor or any other Person or any claims, demands, charges or Encumbrances of any nature, foreseen or unforeseen, incurred by the Company, any Guarantor or any other Person, or against any sums payable in respect of the Notes or under the Note Purchase Agreement or this Guaranty, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by the Company, any Guarantor or any other Person of its respective obligations under or in respect of the Notes, the Note Purchase Agreement, this Guaranty or any other agreement; or
(8) the failure of any Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Guarantor of failure of the Company, any Guarantor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, the Note Purchase Agreement or this Guaranty or failure to resort for payment to the Company, any other Guarantor or to any other Person or to any other guaranty or to any property, security, Encumbrances or other rights or remedies; or
(10) the acceptance of any additional security or other guaranty, the advance of additional money to the Company or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, the Note Purchase Agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any merger or consolidation of the Company, any other Guarantor or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of the Company, any other Guarantor or any other Person to any other Person, or any change in the ownership of any shares of the Company, any other Guarantor or any other Person; or
(12) any defense whatsoever that: (i) the Company or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than payment thereof in Federal or other immediately available funds, or (ii) the Company or any other Person might have to the performance or observance of any of the provisions of the Notes or the Note Purchase Agreement, whether through the satisfaction or purported satisfaction by the Company, any other Guarantor or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise, other than the defense of indefeasible payment in full in cash of the Notes; or
(13) any act or failure to act with regard to the Notes, the Note Purchase Agreement or this Guaranty or anything which might vary the risk of any Guarantor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Guarantor or any other Person in respect of the obligations of any Guarantor or other Person under this Guaranty or any other agreement, other than the defense of indefeasible payment in full in cash of the Notes; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty and the parties hereto that the obligations of each Guarantor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the payment of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and all other sums due and payable under the Note Purchase Agreement, at the place specified in and all in the manner and with the effect provided in the Notes and the Note Purchase Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Company shall default under or in respect of the terms of the Notes or the Note Purchase Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Company under the Notes or the Note Purchase Agreement, this Guaranty shall remain in full force and effect and shall apply to each and every subsequent default.
(d) All rights of any Holder may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the valid and legal transfer of such Note pursuant to the Note Purchase Agreement whether with or without the consent of or notice to the Guarantors under this Guaranty or to the Company.
(e) To the extent of any payments made under this Guaranty, the Guarantors shall be subrogated to the rights of the Holder or Holders upon whose Notes such payment was made, but each Guarantor covenants and agrees that such right of subrogation shall be subordinate in right of payment to the prior indefeasible final payment in cash in full of all amounts due and owing by the Company with respect to the Notes and the Note Purchase Agreement and by the Guarantors under this Guaranty, and the Guarantors shall not take any action to enforce such right of subrogation, and the Guarantors shall not accept any payment in respect of such right of subrogation, until all amounts due and owing by the Company under or in respect of the Notes and the Note Purchase Agreement and all amounts due and owing by the Guarantors hereunder have indefeasibly been finally paid in cash in full. If any amount shall be paid to any Guarantor in violation of the preceding sentence at any time prior to the indefeasible payment in cash in full of the Notes and all other amounts payable under the Notes, the Note Purchase Agreement and this Guaranty, such amount shall be held in trust for the benefit of the Holders and shall forthwith be paid to the Holders to be credited and applied to the amounts due or to become due with respect to the Notes and all other amounts payable under the Note Purchase Agreement and this Guaranty, whether matured or unmatured. Each Guarantor acknowledges that it has received direct and indirect benefits from the financing arrangements contemplated by the Note Purchase Agreement and that the waiver set forth in this paragraph (e) is knowingly made as a result of the receipt of such benefits.
Appears in 1 contract
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each The Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any other the Guarantor may, without in any manner affecting the liability of any the Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtednessdebt, liability or obligation of the Company IRET or of any other Person person secondarily or otherwise liable for any Indebtednessdebt, liability or obligations obligation of the Company IRET on the Notes, or waive any Default or Event of Default with respect thereto, or waive, modify, amend or change any provision of the Note Agreement or any other agreement or waive this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any Indebtednessdebt, liability or obligation of the Company IRET or of any other Person person secondarily or otherwise liable for any Indebtednessdebt, liability or obligation of the Company IRET on the Notes; or
(3) settle, adjust or compromise any claim of the Company IRET against any other Person person secondarily or otherwise liable for any Indebtednessdebt, liability or obligation of the Company IRET on the Notes. Each The Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and agrees that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such the Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each The Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the CompanyIRET, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every Indebtednessdebt, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of payment by any Holder from the Company IRET or any other Person person indebted in any manner on or for any of the Indebtednessdebt, liabilities liability or obligations obligation hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such the Guarantor. The obligations of each the Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reductionreduction (other than, subject to Section 4(f), each indefeasible payment in cash on the Notes), limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of the Guarantor hereunder shall be binding upon the Guarantor and its successors and assigns, and shall remain in full force and effect irrespective of:
(1) the genuineness, validity, regularity or enforceability of the Notes, the Note Agreement or any other agreement or any of the terms of any thereof, the continuance of any obligation on the part of IRET or any other person on or in respect of the Notes or under the Note Agreement or any other agreement or the power or authority or the lack of power or authority of IRET to issue the Notes or IRET to execute and deliver the Note Agreement or any other agreement or of the Guarantor to execute and deliver this Guaranty or to perform any of its obligations hereunder or the existence or continuance of IRET or any other person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by IRET, the Guarantor or any other person of any obligations of any kind or character whatsoever under the Notes, the Note Agreement, this Guaranty or any other agreement; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of IRET or any other person or in respect of the property of IRET or any other person or any merger, consolidation, reorganization, dissolution, liquidation, sale of all or substantially all of the assets of or winding up of IRET, the Guarantor or any other person; or
(4) impossibility or illegality of performance on the part of IRET or any other person of its obligations under the Notes, the Note Agreement or any other agreements; or
(5) any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to IRET or any other person, or any impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of IRET or any other person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, debt, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against IRET, the Guarantor or any other person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by IRET, the Guarantor or any other person, or against any sums payable in respect of the Notes or under the Note Agreement or this Guaranty, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation of any court of any nation or of any political subdivision thereof or anybody, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by IRET, the Guarantor or any other person of its respective obligations under or in respect of the Notes, the Note Agreement, this Guaranty or any other agreement; or
(8) the failure of the Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to the Guarantor of any failure of IRET, the Guarantor or any other person to keep and perform any obligation, covenant or agreement under the terms of the Notes, the Note Agreement, this Guaranty or any other agreement or any failure to resort for payment to IRET, the Guarantor or to any other person or to any other guaranty or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other guaranty, the advance of additional money to IRET or any other person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, the Note Agreement or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any merger or consolidation of IRET, the Guarantor or any other person into or with any other person or any sale, lease, transfer or other disposition of any of the assets of IRET, the Guarantor or any other person to any other person, or any change in the ownership of any shares or other equity interests of IRET, the Guarantor or any other person; or
(12) any defense whatsoever that: (i) IRET or any other person might have to the payment of the Notes (including the principal thereof or any Yield-Maintenance Amount or interest due thereon), other than payment thereof in Federal or other immediately available funds or (ii) IRET or any other person might have to the performance or observance of any of the provisions of the Notes, the Note Agreement or any other agreement, whether through the satisfaction or purported satisfaction by IRET or any other person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise; or
(13) any act or failure to act with regard to the Notes, the Note Agreement, this Guaranty or any other agreement or anything which might vary the risk of the Guarantor or any other person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Guarantor or any other person in respect of the obligations of the Guarantor or other person under this Guaranty or any other agreement; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty and the parties hereto that the obligations of the Guarantor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the payment of the principal of, Yield-Maintenance Amount, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided, at the place specified in and all in the manner and with the effect provided in the Notes and the Note Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, IRET shall default under or in respect of the terms of the Notes or the Note Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by IRET under the Notes or the Note Agreement, this Guaranty shall remain in full force and effect and shall apply to each and every subsequent default.
(d) All rights of any Holder under the Guaranty shall be considered to be transferred or assigned at any time or from time to time upon each transfer of any Note held by such Holder in accordance with the terms of the Note Agreement whether with or without the consent of or notice to the Guarantor under this Guaranty or to IRET.
(e) To the extent of any payments made under this Guaranty, the Guarantor shall be subrogated to the rights of the Holder or Holders upon whose Notes such payment was made, but the Guarantor covenants and agrees that such right of subrogation shall be junior and subordinate in right of payment to the prior indefeasible final payment in cash in full of all of the Notes and satisfaction by IRET of its monetary obligations under the Note Agreement and by the Guarantor of their monetary obligations under this Guaranty, and the Guarantor shall not take any action to enforce such right of subrogation, and the Guarantor shall not accept any payment in respect of such right of subrogation, until all of the Notes and all amounts payable by the Guarantor hereunder have indefeasibly been finally paid in cash in full and all of the monetary obligations of IRET under the Note Agreement and of the Guarantor under this Guaranty have been satisfied. If any amount shall be paid to the Guarantor in violation of the preceding sentences at any time prior to the indefeasible payment in cash in full of the Notes and all amounts payable by the Guarantor hereunder and satisfaction by IRET of all of its monetary obligations under the Note Agreement and by the Guarantor of their obligations hereunder, such amount shall be held in trust for the benefit of the Holders and shall forthwith be paid to the Holders to be credited and applied to the amounts due or to become due with respect to the Notes and all other amounts payable under the Note Agreement and this Guaranty, whether matured or unmatured.
(f) The Guarantor agrees that to the extent IRET or any other person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or required to be retained by or repaid to a trustee, receiver, or any other person under any bankruptcy code, insolvency law, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied by such payment shall be revived and continued in full force and effect with respect to the Guarantor’s obligations hereunder, as if said payment had not been made. The liability of the Guarantor hereunder shall not be reduced or discharged, in whole or in part, by any payment to any Holder from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity or fraud asserted by any account debtor or by any other person.
(g) No Holder shall be under any obligation: (1) to xxxxxxxx any assets in favor of the Guarantor or in payment of any or all of the liabilities of IRET under or in respect of the Notes and the Note Agreement or the obligations of the Guarantor hereunder or (2) to pursue any other remedy that the Guarantor may or may not be able to pursue itself and that may lighten the Guarantor’s burden, all rights to which the Guarantor hereby expressly waives.
Appears in 1 contract
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any other Guarantor may, without in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any IndebtednessDebt, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligations of the Company on the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or waive this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any IndebtednessDebt, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligation of the Company on the Notes; or
(3) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligation of the Company on the Notes. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every IndebtednessDebt, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of payment by any Holder from the Company or any other Person indebted in any manner on or for any of the IndebtednessDebt, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of the Guarantors hereunder shall be binding upon the Guarantors and their successors and assigns, and shall remain in full force and effect irrespective of:
(1) the genuineness, validity, regularity or enforceability of the Notes, the Note Agreement or any other agreement or any of the terms of any thereof, the continuance of any obligation on the part of the Company or any other Person on or in respect of the Notes or under the Note Agreement or any other agreement or the power or authority or the lack of power or authority of the Company to issue the Notes or the Company to execute and deliver the Note Agreement or any other agreement or of any Guarantor to execute and deliver this Guaranty or to perform any of its obligations hereunder or the existence or continuance of the Company or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by the Company, any Guarantor or any other Person of any obligations of any kind or character whatsoever under the Notes, the Note Agreement, this Guaranty or any other agreement; or
(3) any creditors' rights, bankruptcy, receivership or other insolvency proceeding of the Company, any Guarantor or any other Person or in respect of the property of the Company, any Guarantor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the Company, any Guarantor or any other Person; or
(4) impossibility or illegality of performance on the part of the Company, any Guarantor or any other Person of its obligations under the Notes, the Note Agreement, this Guaranty or any other agreements; or
(5) in respect of the Company or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Company or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the Company or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Debt, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against the Company, any Guarantor or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by the Company, any Guarantor or any other Person, or against any sums payable in respect of the Notes or under the Note Agreement or this Guaranty, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by the Company, any Guarantor or any other Person of its respective obligations under or in respect of the Notes, the Note Agreement, this Guaranty or any other agreement; or
(8) the failure of any Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Guarantor of failure of the Company, any Guarantor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, the Note Agreement, this Guaranty or any other agreement or failure to resort for payment to the Company, any Guarantor or to any other Person or to any other guaranty or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other guaranty, the advance of additional money to the Company or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, the Note Agreement or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any merger or consolidation of the Company, any Guarantor or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of the Company, any Guarantor or any other Person to any other Person, or any change in the ownership of any shares of the Company, any Guarantor or any other Person; or
(12) any defense whatsoever that: (i) the Company or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than payment thereof in Federal or other immediately available funds, or (ii) the Company or any other Person might have to the performance or observance of any of the provisions of the Notes, the Note Agreement or any other agreement, whether through the satisfaction or purported satisfaction by the Company or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise; or
(13) any act or failure to act with regard to the Notes, the Note Agreement, this Guaranty or any other agreement or anything which might vary the risk of any Guarantor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Guarantor or any other Person in respect of the obligations of any Guarantor or other Person under this Guaranty or any other agreement; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty and the parties hereto that the obligations of each Guarantor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the payment of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided, at the place specified in and all in the manner and with the effect provided in the Notes and the Note Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Company shall default under or in respect of the terms of the Notes or the Note Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Company under the Notes or the Note Agreement, this Guaranty shall remain in full force and effect and shall apply to each and every subsequent default.
(d) All rights of any Holder may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the transfer of such Note whether with or without the consent of or notice to the Guarantors under this Guaranty or to the Company.
(e) To the extent of any payments made under this Guaranty, the Guarantors shall be subrogated to the rights of the Holder or Holders upon whose Notes such payment was made, but each Guarantor covenants and agrees that such right of subrogation shall be junior and subordinate in right of payment to the prior indefeasible final payment in cash in full of all amounts due and owing by the Company with respect to the Notes and the Note Agreement and by the Guarantors under this Guaranty, and the Guarantors shall not take any action to enforce such right of subrogation, and the Guarantors shall not accept any payment in respect of such right of subrogation, until all amounts due and owing by the Company under or in respect of the Notes and the Note Agreement and all amounts due and owing by the Guarantors hereunder have indefeasibly been finally paid in cash in full. If any amount shall be paid to any Guarantor in violation of the preceding sentence at any time prior to the later of the indefeasible payment in cash in full of the Notes and all other amounts payable under the Notes, the Note Agreement and this Guaranty, such amount shall be held in trust for the benefit of the Holders and shall forthwith be paid to the Holders to be credited and applied to the amounts due or to become due with respect to the Notes and all other amounts payable under the Note Agreement and this Guaranty, whether matured or unmatured.
(f) Each Guarantor agrees that to the extent the Company or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Guarantors' obligations hereunder, as if said payment had not been made. The liability of the Guarantors hereunder shall not be reduced or discharged, in whole or in part, by any payment to any Holder from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(g) No Holder shall be under any obligation: (1) to marsxxxx xxx assets in favor of the Guarantors or in payment of any or all of the liabilities of the Company under or in respect of the Notes or the obligations of the Guarantors hereunder or (2) to pursue any other remedy that the Guarantors may or may not be able to pursue themselves and that may lighten the Guarantors' burden, any right to which each Guarantor hereby expressly waives.
Appears in 1 contract
Samples: Subsidiary Guaranty Agreement (Granite Construction Inc)
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any other Guarantor time may, without in any manner affecting the liability or obligations of any Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligations of the Company on the Notes, or waive any Default or Event of Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes; or
(3) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such each Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every Indebtedness, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of payment by any Holder from the Company or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantorthe Guarantors. The obligations of each Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by indefeasible payment in full in cash of the Notes and the obligations of the Company under the Note Purchase Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of each Guarantor hereunder shall be binding upon each Guarantor and its successors and assigns, and shall remain in full force and effect until the entire principal, interest and premium, if any, on the Notes and all other sums due pursuant to Section 2 shall have been irrevocably and indefeasibly paid in full in cash and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including without limitation any of the following, whether or not with notice to or the consent of any Guarantor:
(1) the validity, regularity or enforceability of the Notes, the Note Purchase Agreement or any of the terms of any thereof, the continuance of any obligation on the part of the Company or any other Person on or in respect of the Notes or under the Note Purchase Agreement or the power or authority or the lack of power or authority of the Company to issue the Notes or the Company to execute and deliver the Note Purchase Agreement or the existence or continuance of the Company or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by the Company or any other Person of any obligations of any kind or character whatsoever under the Notes or the Note Purchase Agreement; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of the Company or any other Person or in respect of the property of the Company or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the Company or any other Person; or
(4) impossibility or illegality of performance on the part of the Company or any other Person of its obligations under the Notes or the Note Purchase Agreement; or
(5) in respect of the Company, any other guarantors or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Company, any other guarantors or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the Company or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against any Guarantor, the Company or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by the Company or any other Person, or against any sums payable in respect of the Notes or under the Note Purchase Agreement or this Guaranty, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by any Guarantor, the Company or any other Person of its respective obligations under or in respect of the Notes, the Note Purchase Agreement or this Guaranty; or
(8) the failure of any Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Guarantor of failure of the Company or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, the Note Purchase Agreement or this Guaranty or failure to resort for payment to the Company or to any other Person or to any other guaranty or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other guaranty, the advance of additional money to the Company or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, the Note Purchase Agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any merger or consolidation of the Company or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of the Company or any other Person to any other Person, or any change in the ownership of any shares of the Company or any other Person; or
(12) any defense whatsoever that: (i) the Company or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than payment thereof in Federal or other immediately available funds, or (ii) the Company or any other Person might have to the performance or observance of any of the provisions of the Notes or the Note Purchase Agreement, whether through the satisfaction or purported satisfaction by the Company or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise, other than the defense of indefeasible payment in full in cash of the Notes; or
(13) any act or failure to act with regard to the Notes, the Note Purchase Agreement or this Guaranty or anything which might vary the risk of any Guarantor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Guarantor in respect of the obligations of any Guarantor under this Guaranty or any other agreement, other than (i) such Guaranteed Obligations not being due and payable, whether as a result of redemption or prepayment, by extension or by acceleration or declaration or otherwise or (ii) the defense of indefeasible payment in full in cash of the Guaranteed Obligations; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty and the parties hereto that the obligations of each Guarantor hereunder shall be absolute and unconditional and shall not be discharged, impaired or varied except by the indefeasible payment in full in cash of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and all other sums due and payable under the Note Purchase Agreement, at the place specified in and all in the manner and with the effect provided in the Notes and the Note Purchase Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Company shall default under or in respect of the terms of the Notes or the Note Purchase Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Company under the Notes or the Note Purchase Agreement, this Guaranty shall remain in full force and effect and shall apply to each and every subsequent default.
(d) All rights of any Holder may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the valid and legal transfer of any Note pursuant to the Note Purchase Agreement whether with or without the consent of or notice to any Guarantor under this Guaranty or to the Company.
(e) To the extent of any payments made under this Guaranty by a Guarantor, such Guarantor shall be subrogated to the rights of the Holder upon whose Notes such payment was made, but the Guarantors covenant and agree that such right of subrogation shall be subordinate in right of payment to the prior indefeasible final payment in cash in full of all amounts due and owing by the Company with respect to the Notes and the Note Purchase Agreement and by the Guarantors under this Guaranty, and no Guarantor shall take any action to enforce such right of subrogation, and no Guarantor shall accept any payment in respect of such right of subrogation, until all amounts due and owing by the Company under or in respect of the Notes and the Note Purchase Agreement and all amounts due and owing by the Guarantors hereunder have indefeasibly been finally paid in cash in full. If any amount shall be paid to any Guarantor in violation of the preceding sentence at any time prior to the later of the indefeasible payment in cash in full of the Notes and all other amounts payable under the Notes, the Note Purchase Agreement and this Guaranty, such amount shall be held in trust for the benefit of the Holders and shall forthwith be paid to the Holders to be credited and applied to the amounts due or to become due with respect to the Notes and all other amounts payable under the Note Purchase Agreement and this Guaranty, whether matured or unmatured. Each Guarantor acknowledges that it has received direct and indirect benefits from the financing arrangements contemplated by the Note Purchase Agreement and that the waiver set forth in this paragraph (e) is knowingly made as a result of the receipt of such benefits.
(f) Each Guarantor agrees that to the extent the Company or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Guarantors’ obligations hereunder, as if said payment had not been made. The liability of the Guarantors hereunder shall not be reduced or discharged, in whole or in part, by any payment to any Holder from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(g) No Holder shall be under any obligation: (1) to marshal any assets in favor of any Guarantor or in payment of any or all of the liabilities of the Company under or in respect of the Notes or the obligations of any Guarantor hereunder or (2) to pursue any other remedy that any Guarantor may or may not be able to pursue themselves and that may lighten such Guarantor’s burden, any right to which each Guarantor hereby expressly waives.
(h) The obligations of each Guarantor under this Guaranty rank pari passu in right of payment with all other Indebtedness of such Guarantor which is not secured or which is not expressly subordinated in right of payment to any other Indebtedness of such Guarantor.
Appears in 1 contract
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each The Guarantor hereby consents and agrees that any Holder Noteholder or Holders Noteholders from time to time, with or without any further notice to or assent from any other Guarantor the Guarantor, may, without in any manner affecting the liability of any the Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders Noteholder may deem advisable:
(1i) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtednessindebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtednessindebtedness, liability or obligations of the Company on the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or instruments and this Guaranty; or
(2ii) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder Noteholder as direct or indirect security for the payment or performance of any Indebtednessindebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtednessindebtedness, liability or obligation of the Company on the Notes; or
(3iii) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any Indebtednessindebtedness, liability or obligation of the Company on the Notes. Each The Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such the Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each The Guarantor hereby waives, to the fullest extent permitted by law:
: (1i) notice of acceptance of this Guaranty by the Holders Noteholders or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders Noteholders upon this Guaranty (it being understood that every Indebtednessindebtedness, liability and obligation described in Section 2 hereof 1 shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
; (2ii) demand of payment by any Holder Noteholder from the Company Company, any of the Other Guarantors, or any other Person indebted in any manner on or for any of the Indebtednessindebtedness, liabilities or obligations hereby guaranteed; and
and (3iii) presentment for the payment by any Holder Noteholder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such the Guarantor. The obligations of each the Guarantor under this Guaranty and the rights of any Holder Noteholder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of the Guarantor hereunder shall be binding upon the Guarantor and its successors and assigns, and shall remain in full force and effect irrespective of:
(i) the genuineness, validity, regularity or enforceability of the Notes, the Note Purchase Agreements or any other instruments relating thereto or any of the terms of any thereof, the continuance of any obligation on the part of the Company, any of the Other Guarantors, or any other Person on the Notes or under the Note Purchase Agreements or the power or authority or the lack of power or authority of the Company to issue the Notes or execute and deliver the Note Purchase Agreements or to perform any of its obligations thereunder or the existence or continuance of the Company, any of the Other Guarantors, or any other Person as a legal entity; or
(ii) any default, failure or delay, willful or otherwise, in the performance by the Company, any of the Other Guarantors, or any other Person of any obligations of any kind or character whatsoever of the Company, any of the Other Guarantors, or any other Person (including, without limitation, the obligations and undertakings of the Company, any of the Other Guarantors, or any other Person under the Notes or the Note Purchase Agreements); or
(iii) any creditors' rights, bankruptcy, receivership or other insolvency proceeding of the Company, any of the Other Guarantors, or any other Person or in respect of the property of the Company, any of the Other Guarantors, or any other Person or any merger, consolidation, reorganization, dissolution, liquidation or winding up of the Company, any of the Other Guarantors, or any other Person; or
(iv) impossibility or illegality of performance on the part of the Company, any of the Other Guarantors, or any other Person of its obligations under the Notes, the Note Purchase Agreements, this Guaranty or any other instruments; or
(v) in respect of the Company, any of the Other Guarantors, or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Company, any of the Other Guarantors, or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotions, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the Company, any of the Other Guarantors, or any other Person and whether or not of the kind hereinbefore specified; or
(vi) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against any Person, or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by any Person, or against any sums payable under this Guaranty, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(vii) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by any party of its respective obligations under the Notes, the Note Purchase Agreements or any instrument relating thereto; or
(viii) the failure of the Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or
(ix) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of Default and of nonpayment, any failure to give notice to the Guarantor of failure of the Company, any of the Other Guarantors, or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes or the Note Purchase Agreements or failure to resort for payment to the Company, any of the Other Guarantors, or any other Person or to any other guaranty or to any property, security, Liens or other rights or remedies; or
(x) the acceptance of any additional security or other guaranty, the advance of additional money to the Company, any of the Other Guarantors, or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes or the Note Purchase Agreements, or the sale, release, substitution or exchange of any security for the Notes; or
(xi) any defense whatsoever that the Company, any of the Other Guarantors, or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than payment in cash thereof, or to the performance or observance of any of the provisions of the Note Purchase Agreements, whether through the satisfaction or purported satisfaction by the Company, any of the Other Guarantors, or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding up or otherwise; or
(xii) any act or failure to act with regard to the Notes, the Note Purchase Agreements or anything which might vary the risk of the Guarantor; or
(xiii) any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Guarantor in respect of the obligations of the Guarantor under this Guaranty; provided, that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty that the obligations of the Guarantor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the payment of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and all other sums due and payable under the Note Purchase Agreements, at the place specified in and all in the manner and with the effect provided in the Notes and the Note Purchase Agreements, as amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Company shall Default under the terms of the Notes or the Note Purchase Agreements and that notwithstanding recovery hereunder for or in respect of any given Default or Defaults by the Company under the Notes or the Note Purchase Agreements, this Guaranty shall remain in full force and effect and shall apply to each and every subsequent Default.
(d) Subject to the provisions of the Note Purchase Agreements, all rights of any Noteholder may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the transfer of such Note whether with or without the consent of or notice to the Guarantor under this Guaranty or the Company.
(e) To the extent of any payments made under this Guaranty, the Guarantor shall be subrogated to the rights of the Noteholder upon whose Note such payment was made, but the Guarantor covenants and agrees that such right of subrogation shall be subordinate in right of payment to the rights of any Noteholder for which full payment has not been made or provided for and, to that end, the Guarantor agrees not to claim or enforce any such right of subrogation or any right of set-off or any other right which may arise on account of any payment made by the Guarantor in accordance with the provisions of this Guaranty, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of any Noteholder or Noteholders against the Company, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Company, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right unless and until 366 days after all of the Notes and all other sums due and payable under the Note Purchase Agreements have been fully paid and discharged. If any amount shall be paid to the Guarantor in violation of the preceding sentence at any time prior to the indefeasible cash payment in full of the Notes and all other amounts payable under the Note Purchase Agreements and this Guaranty, such amounts shall be held in trust for the benefit of the Noteholders and shall forthwith be paid to the Noteholders to be credited and applied to the amounts due or to become due with respect to the Notes and all other amounts payable under the Note Purchase Agreements and this Guaranty, whether matured or unmatured. The Guarantor acknowledges that it has received direct and indirect benefits from the financing arrangements contemplated by the Note Purchase Agreements and that the waiver set forth in this subsection is knowingly made as a result of the receipt of such benefits.
(f) The Guarantor agrees that to the extent the Company, any of the Other Guarantors, or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, liquidator, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Guarantor's obligations hereunder, as if said payment had not been made. The liability of the Guarantor hereunder shall not be reduced or discharged, in whole or in part, by any payment to any Noteholder from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(g) No Noteholder shall be under any obligation (i) to marshal any assets in favor of the Guarantor or in payment of any or all of the liabilities of the Company under or in respect of the Notes or the obligations of the Guarantor hereunder or (ii) to pursue any other remedy that the Guarantor may or may not be able to pursue itself and that may lighten the Guarantor's burden or any right which the Guarantor hereby expressly waives.
(h) The obligations of the Guarantor with respect to the guaranty and all other obligations under this Guaranty of the Guarantor are direct and unsecured obligations of the Guarantor ranking pari passu as against the assets of the Guarantor and pari passu with all other present and future Indebtedness of the Guarantor which is not expressed to be subordinate or junior in rank to any other Indebtedness of the Guarantor (except to the extent that the foregoing is not true by virtue of, and solely by virtue of, Liens expressly permitted by the Note Purchase Agreements securing other Indebtedness).
Appears in 1 contract
Samples: Intercreditor Agreement (Insituform Technologies Inc)
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each The Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any other Guarantor time may, without in any manner affecting the liability of any the Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, increase, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtedness, liability or obligation of the Company Issuer or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligations of the Company Issuer on the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this GuarantyGuaranty (to the extent permitted by Section 6); or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any Indebtedness, liability or obligation of the Company Issuer or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company Issuer on the Notes; or
(3) settle, adjust or compromise any claim of the Company Issuer against any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company Issuer on the Notes. Each The Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such the Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each The Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the CompanyIssuer, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every all Indebtedness, liability liabilities and obligation obligations described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);; and
(2) demand of payment by any Holder from the Company Issuer or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such the Guarantor. The obligations of each the Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of the Guarantor hereunder shall be binding upon the Guarantor and its successors and assigns, and shall remain in full force and effect irrespective of:
(1) the genuineness, validity, regularity or enforceability of the Notes, the Note Purchase Agreement or any other agreement or any of the terms of any thereof, the continuance of any obligation on the part of the Issuer, any other guarantor or any other Person on or in respect of the Notes or under the Note Purchase Agreement or any other agreement or the power or authority or the lack of power or authority of the Issuer to issue the Notes or the Company or the Issuer to execute and deliver the Note Purchase Agreement or any other agreement or to perform any of its obligations hereunder or the existence or continuance of the Issuer or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by the Issuer or any other Person of any obligations of any kind or character whatsoever under the Notes, the Note Purchase Agreement or any other agreement; or
(3) any creditors' rights, bankruptcy, receivership or other insolvency proceeding of the the Issuer, any other guarantor or any other Person or in respect of the property of the Issuer, any other guarantor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the Issuer, any other guarantor or any other Person; or
(4) impossibility or illegality of performance on the part of the Issuer, any other guarantor or any other Person of its obligations under the Notes, the Note Purchase Agreement or any other agreements; or
(5) in respect of the Issuer, any other guarantor or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Issuer, any other guarantor or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the Issuer, any other guarantor or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, foreseen or unforeseen, and whether or not valid, incurred by or against the Issuer or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by any Person, or against any sums payable in respect of the Notes or under the Note Purchase Agreement or this Guaranty, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by the Issuer or any other Person of its respective obligations under or in respect of the Notes, the Note Purchase Agreement or any other agreement; or
(8) the failure of the Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to the Guarantor of failure of the Issuer, any other guarantor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, the Note Purchase Agreement or any other agreement or failure to resort for payment to the Issuer, any other guarantor or to any other Person or to any other guaranty or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other guaranty, the advance of additional money to the Issuer or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, the Note Purchase Agreement or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any change in the ownership of any shares or other equity interests of the Issuer, the Guarantor, any other guarantor or any other Person; or
(12) any defense whatsoever that: (i) the Issuer or any other Person might have to the payment of the Notes (principal, Make-Whole Amount, if any, or interest), other than payment thereof in Federal or other immediately available funds, or (ii) the Issuer or any other Person might have to the performance or observance of any of the provisions of the Notes, the Note Purchase Agreement or any other agreement, whether through the satisfaction or purported satisfaction by the Issuer, any other guarantor or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise; or
(13) any act or failure to act with regard to the Notes, the Note Purchase Agreement, this Guaranty or any other agreement or anything which might vary the risk of the Guarantor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Guarantor or any other Person in respect of the obligations of the Guarantor or other Person under this Guaranty or any other agreement other than the final and indefeasible payment in full in cash of the Notes; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty that the obligations of the Guarantor shall be absolute, irrevocable and unconditional and shall not be discharged, impaired or varied except by the payment of the principal of, Make-Whole Amount, if any, or any other premium, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and all other sums due and payable under the Note Purchase Agreement, at the place specified in and all in the manner and with the effect provided in the Notes and the Note Purchase Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Issuer shall default under or in respect of the terms of the Notes or the Note Purchase Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Issuer under the Notes or the Note Purchase Agreement or the guaranty obligations of the other guarantor under the Note Purchase Agreement, this Guaranty shall remain in full force and effect and shall apply to each and every subsequent default.
(d) Subject to the deemed representations by a transferee set forth in Section 14.2, all rights of any Holder hereunder may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the transfer of any Note whether with or without the consent of or notice to the Guarantors under this Guaranty or to the Company or the Issuer (except as provided in Section 14 of the Note Purchase Agreement).
(e) To the extent of any payments made under this Guaranty, the Guarantor shall be subrogated to the rights of the Holder upon whose Notes such payment was made, but the Guarantor covenants and agrees that such right of subrogation shall be subordinate in right of payment to the prior indefeasible final payment in cash in full of all amounts due and owing by the Issuer with respect to the Notes and the Note Purchase Agreement, and the Guarantor shall not take any action to enforce such right of subrogation, and the Guarantor shall not accept any payment in respect of such right of subrogation, until all amounts due and owing by the Issuer under or in respect of the Notes and the Note Purchase Agreement and all amounts due and owing by the Guarantor hereunder have indefeasibly been finally paid in cash in full. If any amount shall be paid to the Guarantor in violation of the preceding sentence at any time prior to the later of the indefeasible payment in cash in full of the Notes and all other amounts payable under the Notes and this Guaranty, such amount shall be held in trust for the benefit of the Holders and shall forthwith be paid to the Holders to be credited and applied to the amounts due or to become due with respect to the Notes and all other amounts payable under the Note Purchase Agreement and this Guaranty, whether matured or unmatured. The Guarantor acknowledges that it has received direct and indirect benefits from the financing arrangements contemplated by the Note Purchase Agreement and that the waiver set forth in this paragraph (e) is knowingly made as a result of the receipt of such benefits.
(f) The Guarantor agrees that to the extent the Issuer, any other guarantor or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Guarantor's obligations hereunder, as if said payment had not been made. The liability of the Guarantor hereunder shall not be reduced or discharged, in whole or in part, by any payment to any Holder from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(g) No Holder shall be under any obligation: (1) to marshall any assets in favor of the Guarantor or in payment of any or xxx xx the liabilities of the Company under or in respect of the Notes or the obligations of the Guarantor hereunder or (2) to pursue any other remedy that the Guarantor may or may not be able to pursue itself and that may lighten the Guarantor's burden, any right to which the Guarantor hereby expressly waives.
(h) The obligations of the Guarantor under this Guaranty rank pari passu in right of payment with all other Indebtedness of the Guarantor which is not secured or which is not expressly subordinated in right of payment to any other Indebtedness of the Guarantor.
Appears in 1 contract
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any other Guarantor may, without in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any IndebtednessDebt, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligations of the Company on the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any IndebtednessDebt, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligation of the Company on the Notes; or
(3) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligation of the Company on the Notes. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every IndebtednessDebt, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of payment by any Holder from the Company or any other Person indebted in any manner on or for any of the IndebtednessDebt, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of the Guarantors hereunder shall be binding upon the Guarantors and their successors and assigns, and shall remain in full force and effect until the entire principal, interest and premium, if any, on the Notes and all other sums due pursuant to Section 2 shall have been paid and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including without limitation any of the following, whether or not with notice to or the consent of the Guarantors:
(1) the genuineness, validity, regularity or enforceability of the Notes, the Note Purchase Agreement or any other agreement or any of the terms of any thereof, the continuance of any obligation on the part of the Company, any other Guarantors or any other Person on or in respect of the Notes or under the Note Purchase Agreement or any other agreement or the power or authority or the lack of power or authority of the Company to issue the Notes or the Company to execute and deliver the Note Purchase Agreement or any other agreement or of any other Guarantors to execute and deliver this Guaranty or any other agreement or to perform any of its obligations hereunder or the existence or continuance of the Company or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by the Company, any other Guarantor or any other Person of any obligations of any kind or character whatsoever under the Notes, the Note Purchase Agreement, this Guaranty or any other agreement; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of the Company, any other Guarantor or any other Person or in respect of the property of the Company, any other Guarantor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the Company, any other Guarantor or any other Person; or
(4) impossibility or illegality of performance on the part of the Company, any other Guarantor or any other Person of its obligations under the Notes, the Note Purchase Agreement, this Guaranty or any other agreements; or
(5) in respect of the Company, any other Guarantors or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Company, any other Guarantors or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the Company, any other Guarantors or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Debt, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against the Company, any Guarantor or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by the Company, any Guarantor or any other Person, or against any sums payable in respect of the Notes or under the Note Purchase Agreement or this Guaranty, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by the Company, any Guarantor or any other Person of its respective obligations under or in respect of the Notes, the Note Purchase Agreement, this Guaranty or any other agreement; or
(8) the failure of any Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Guarantor of failure of the Company, any Guarantor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, the Note Purchase Agreement, this Guaranty or any other agreement or failure to resort for payment to the Company, any other Guarantor or to any other Person or to any other guaranty or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other guaranty, the advance of additional money to the Company or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, the Note Purchase Agreement or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any merger or consolidation of the Company, any other Guarantor or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of the Company, any other Guarantor or any other Person to any other Person, or any change in the ownership of any shares of the Company, any other Guarantor or any other Person; or
(12) any defense whatsoever that: (i) the Company or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than payment thereof in Federal or other immediately available funds, or (ii) the Company or any other Person might have to the performance or observance of any of the provisions of the Notes, the Note Purchase Agreement or any other agreement, whether through the satisfaction or purported satisfaction by the Company, any other Guarantor or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise, other than the defense of indefeasible payment in full in cash of the Notes; or
(13) any act or failure to act with regard to the Notes, the Note Purchase Agreement, this Guaranty or any other agreement or anything which might vary the risk of any Guarantor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Guarantor or any other Person in respect of the obligations of any Guarantor or other Person under this Guaranty or any other agreement, other than the defense of indefeasible payment in full in cash of the Notes; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty and the parties hereto that the obligations of each Guarantor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the payment of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and all other sums due and payable under the Note Purchase Agreement, at the place specified in and all in the manner and with the effect provided in the Notes and the Note Purchase Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Company shall default under or in respect of the terms of the Notes or the Note Purchase Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Company under the Notes or the Note Purchase Agreement, this Guaranty shall remain in full force and effect and shall apply to each and every subsequent default.
(d) All rights of any Holder may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the transfer of such Note whether with or without the consent of or notice to the Guarantors under this Guaranty or to the Company.
(e) To the extent of any payments made under this Guaranty, the Guarantors shall be subrogated to the rights of the Holder or Holders upon whose Notes such payment was made, but each Guarantor covenants and agrees that such right of subrogation shall be junior and subordinate in right of payment to the prior indefeasible final payment in cash in full of all amounts due and owing by the Company with respect to the Notes and the Note Purchase Agreement and by the Guarantors under this Guaranty, and the Guarantors shall not take any action to enforce such right of subrogation, and the Guarantors shall not accept any payment in respect of such right of subrogation, until all amounts due and owing by the Company under or in respect of the Notes and the Note Purchase Agreement and all amounts due and owing by the Guarantors hereunder have indefeasibly been finally paid in cash in full. If any amount shall be paid to any Guarantor in violation of the preceding sentence at any time prior to the indefeasible payment in cash in full of the Notes and all other amounts payable under the Notes, the Note Purchase Agreement and this Guaranty, such amount shall be held in trust for the benefit of the Holders and shall forthwith be paid to the Holders to be credited and applied to the amounts due or to become due with respect to the Notes and all other amounts payable under the Note Purchase Agreement and this Guaranty, whether matured or unmatured. Each Guarantor acknowledges that it has received direct and indirect benefits from the financing arrangements contemplated by the Note Purchase Agreement and that the waiver set forth in this paragraph (e) is knowingly made as a result of the receipt of such benefits.
(f) To the extent of any payments made under this Guaranty, each Guarantor making such payment shall have a right of contribution from the other Guarantors, but such Guarantor covenants and agrees that such right of contribution shall be subordinate in right of payment to the rights of the Holders for which full payment has not been made or provided for and, to that end, such Guarantor agrees not to claim or enforce any such right of contribution unless and until all of the Notes and all other sums due and payable under the Note Purchase Agreement have been fully and irrevocably paid and discharged.
Appears in 1 contract
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any other Guarantor may, without in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligations of the Company on the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes; or
(3) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every Indebtedness, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of payment by any Holder from the Company or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
Appears in 1 contract
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any other Guarantor may, without in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any IndebtednessDebt, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligations of the Company on the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any IndebtednessDebt, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligation of the Company on the Notes; or
(3) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligation of the Company on the Notes. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every IndebtednessDebt, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of payment by any Holder from the Company or any other Person indebted in any manner on or for any of the IndebtednessDebt, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
Appears in 1 contract
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any other Guarantor may, without every default in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligations of the Company on the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any Indebtedness, liability or obligation of the Company Lessee under any Loan Document to which the Lessee is a party shall give rise to a separate claim and cause of action hereunder to the extent that each such default by the Lessee would give rise to a separate claim or cause of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of action under the Company on the Notes; or
(3) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon itapplicable Loan Document, and hereby waivesseparate claims or suits may be made and brought, to as the fullest extent permitted by lawcase may be, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that hereunder as each such Guarantor shall at all times be bound by this Guaranty and remain liable hereunderdefault occurs.
(b) Each This Guaranty shall be a continuing, absolute, irrevocable and unconditional guaranty of payment and performance and not of collection and shall remain in full force and effect until each and all of the obligations of the Lessee guaranteed hereunder shall have been fully and indefeasibly discharged or performed in accordance with the terms and provisions of the Loan Documents (and no longer subject to recoupment, preference claims or clawback under applicable bankruptcy, insolvency or similar laws), and each Guarantor hereby waives, shall have fully discharged or performed all of its obligations under this Guaranty to each Guaranteed Beneficiary.
(c) This Guaranty and the fullest extent permitted by lawliability of the Guarantors provided for in Section 1 hereunder shall remain in full force and effect irrespective of:
(1i) notice the legality, validity, regularity or enforceability, or the absence of acceptance any thereof, of this Guaranty by the Holders any Loan Document (or other document or agreement) or of the creationany assignment, renewal amendment, modification, or accrual termination of any liability Loan Document (or other document or agreement) or any subleasing or further subleasing of the CompanyAircraft or Spare Engines (or any interest therein or portion thereof), present and shall in no way be affected or futureimpaired by (and no notice to the Guarantors shall be required in respect of) any compromise, waiver, settlement, release, renewal, extension, indulgence, amendment, addition, deletion, change or modification with respect to, or release of any security for any of the reliance obligations or liabilities of such Holders upon this Guaranty the Lessee under, any Loan Document or any redelivery, repossession, sale, transfer or other disposition, surrender or destruction of, or other event or circumstance with respect to, the Aircraft or Spare Engines (it being understood that every Indebtednessor any interest therein or portion thereof), liability and obligation described in Section 2 hereof shall conclusively be presumed to have been created, contracted whole or incurred in reliance upon the execution of this Guaranty);part; or
(2ii) demand the transfer, assignment, subletting, or mortgaging, or the purported transfer, assignment, subletting, or mortgaging, of payment by all or any Holder from part of the Company interest of any Guaranteed Beneficiary or the Lessee in the Aircraft or Spare Engines (or any interest therein or portion thereof) in accordance with the Loan Documents; or
(iii) any absence or defect or failure of title or lack of recordation or registration with respect to any Guaranteed Beneficiary's or the Lessee's interest in the Aircraft or Spare Engines (or any interest therein or portion thereof); or
(iv) any failure of delivery of, or loss of perfection of any security interest with respect to, any portion of the Aircraft or Spare Engines (or any interest therein or portion thereof); or
(v) any matter relating to any agreement or approval (or the absence thereof) in connection with the Aircraft or Spare Engines (or any interest therein or portion thereof); or
(vi) any failure, neglect or omission on the part of any Guaranteed Beneficiary or any other Person indebted in any manner on or for any to give the Guarantors notice of the Indebtedness, liabilities occurrence of any Default or obligations hereby guaranteed; and
(3) presentment for the payment Lease Event of Default or Potential Event of Default or Event of Default or to realize upon any collateral held by any Holder Guaranteed Beneficiary or any other Person with respect to any obligations or liabilities of the Notes Lessee, or to provide for any insurance on the Aircraft or Spare Engines (or any interest therein or portion thereof), or to establish or maintain a security or other interest in the Aircraft or Spare Engines (or any interest therein or portion thereof) or any collateral provided under any Loan Document or to establish or maintain the priority or perfection of any thereof; or
(vii) any defect in the compliance with specifications, warranties or any insurance policy or the condition, design, operation or fitness for use of, or any damage to or loss or destruction of, or any interruption or cessation in the use of, the Aircraft or Spare Engines (or any interest therein or any portion thereof) by the Lessee or any other instrumentPerson for any reason whatsoever (including, protest without limitation, any governmental prohibition or restriction, condemnation, requisition, seizure or any other act on the part of any governmental or military authority, or any act of God or of the public enemy) regardless of the duration thereof and notice (even though such duration would otherwise constitute a frustration under any Loan Document), whether or not without fault on the part of the Lessee or any other Person; or
(viii) any merger, consolidation or other restructuring or termination of the corporate structure, reorganization or transaction with respect to the Lessee or any Guarantor into, with or in respect of, any other Person or any sale, lease, assignment or transfer of any of the assets of the Lessee or any Guarantor to any other Person; or
(ix) any disposition by any Guarantor of its dishonor interest in the Lessee, or any change in the ownership of any shares of capital stock of such Guarantor or the Lessee, or any change, restructuring or termination of the corporate structure or existence of the Lessee; or
(x) the imposition of any Tax or other charge against the Lessee, any Guarantor or any other Person; or
(xi) any exchange, release or nonperfection, or lapse of perfection, of any security for any Guaranteed Obligation or the acceptance of any security therefore; or
(xii) any bankruptcy, insolvency, winding up, dissolution, liquidation, receivership, or reorganization of, or similar proceedings affecting, the Lessee or any Guarantor or its assets or any resulting release or discharge of any of the Guaranteed Obligations (except to the extent resulting from performance thereof); or
(xiii) any party thereto and regulatory change or other governmental action (whether or not adverse); or
(xiv) any partial payment or performance of the Guaranteed Obligations (whether as a result of the exercise of any right, remedy, power or privilege or otherwise) that is accepted or received (except, subject to paragraph (f) of this Section 2, to the extent of such payment or performance); or
(xv) any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing, whether or not foreseeable, that might otherwise constitute a legal or equitable defense or discharge of the liabilities of a Guarantor or surety or that might otherwise limit recourse against such Guarantor. The obligations of each Guarantor under this Guaranty set forth herein constitute the full recourse obligations of each Guarantor enforceable against it to the full extent of all its assets and the rights properties.
(d) The obligation and liability of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, each Guarantor hereunder shall not be subject to any reductionimpaired, limitationdiminished, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement), whether by reason of any claim of any character whatsoever abated or otherwise and shall not be subject to affected (i) by any defense, set-off, defense or counterclaim that the Lessee, any Guarantor or any other Person may have or claim to have, at any time or from time to time, or (ii) by the commencement by or against the Lessee, any Guarantor or any other than Person of any compulsory counterclaimproceedings under any bankruptcy or insolvency law or laws relating to the relief of debtors, readjustment of indebtedness, reorganizations, arrangements, compositions or extension or other similar laws.
(e) It is the intent and purpose hereof that each Guarantor shall not be entitled to and does hereby waive, to the fullest extent permitted by applicable law, any and all defenses available to such Guarantor, sureties and other secondary parties at law or in equity. Without limiting the generality of the foregoing, each Guarantor hereby waives notice of acceptance of this Guaranty and of the nonperformance by the Lessee, diligence, presentment, protest, dishonor, demand for payment from the Lessee or any other Person and notice of nonpayment or failure to perform on the part of the Lessee and all other notices whatsoever. The guaranty hereunder is a guaranty of payment, performance and compliance and not of collectability only. Each Guarantor specifically agrees that it shall not be necessary, and such Guarantor shall not require, before or as a condition of enforcing the liability of such Guarantor under this Guaranty or requiring payment or performance of the Guaranteed Obligations by such Guarantor hereunder, or at any time thereafter, that any of the Guaranteed Beneficiaries (i) file suit or proceed to obtain or assert a claim for personal judgment against any Person that may be liable for any Guaranteed Obligation; (ii) make any other effort to obtain payment or performance of any Guaranteed Obligation from the Lessee or any other Person that may be liable for such Guaranteed Obligation; (iii) foreclose against or seek to realize upon any security now or hereafter existing for such Guaranteed Obligation; (iv) exercise or assert any other right or remedy to which any of the Guaranteed Beneficiaries is or may be entitled in connection with any Guaranteed Obligation or any security or other guaranty therefore; (v) assert or file any claim against the assets of the Lessee or any other Person liable for any Guaranteed Obligation; or (vi) join the Lessee or any other Person as a party to any proceeding for the enforcement of any provision of this Guaranty. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, a Lease Event of Default shall have occurred and be continuing or a Guaranteed Obligation shall otherwise arise (in either case, a "RECOVERY EVENT"), recoupment and that, notwithstanding recovery hereunder for or termination whatsoeverin respect of any such Recovery Event, this Guaranty shall remain in force and effect and shall apply to each and every subsequent Recovery Event. Each Guarantor further agrees that, without limiting the generality of this Guaranty, if any Recovery Event shall have occurred and be continuing and any Guaranteed Beneficiary (or any assignee thereof) is prevented by applicable law from exercising its remedies under any applicable Loan Document for any reason, such Guaranteed Beneficiary (or any assignee thereof) shall be entitled to receive hereunder from such Guarantor, upon demand therefor, the sums that otherwise would have been due from the Lessee had such remedies been exercised. If any Guarantor makes any payment or performs any obligation hereunder in respect of any of the obligations to be performed by the Lessee, such Guarantor shall become subrogated to the extent of such payment or performance to the rights of the Guaranteed Beneficiary under the relevant agreement to which the Lessee is a party against the Lessee in respect of such obligations and any collateral security or guaranty held by or for the benefit of such Guaranteed Beneficiary for the payment of such obligations; PROVIDED, HOWEVER, that such rights of subrogation shall not commence until such time subsequent to the end of the Term as the Lessee or such Guarantor, as the case may be, shall have paid and performed each and every Guaranteed Obligation to each Guaranteed Beneficiary and such Guarantor shall have fully performed its obligations hereunder.
(f) The guaranty hereunder shall not be deemed to have terminated and shall continue to be effective (or if terminated for any reason shall be reinstated, as the case may be), if at any time payment, or any part thereof, of any of the obligations hereunder or under any Loan Document is rescinded and must be (and actually is) returned by any Guaranteed Beneficiary to the Person who made the payment or on behalf of whom the payment was made upon the insolvency, bankruptcy or reorganization (or similar event) with respect to the Lessee, any Guarantor or otherwise, all as though such payment had not been made.
(g) If any Guarantor fails to pay any amount hereunder when due to any Guaranteed Beneficiary, such Guarantor shall pay to such Guaranteed Beneficiary interest, on demand, on such amount at the appropriate rate described in Section 2.2D of the Credit Agreement.
(h) Each Guarantor further agrees to pay to each Guaranteed Beneficiary any and all costs and expenses, including reasonable legal fees (which shall include allocated costs of internal counsel) and disbursements, incurred by such party in connection with enforcing its rights under this Guaranty.
Appears in 1 contract
Samples: Subsidiaries Guaranty (Atlas Air Worldwide Holdings Inc)
GENERAL PROVISIONS RELATING TO THE GUARANTY. (ai) Each The Guarantor hereby consents and agrees that any Holder holder or Holders holders of Notes from time to time, with or without any further notice to or assent from any other the Guarantor may, without in any manner affecting the liability of any the Guarantor under this Guaranty, and upon such terms and conditions as any such Holder holder or Holders holders may deem advisable:
(1a) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the payment or performance or payment of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligations of the Company on the NotesGuaranteed Obligations, or waive any Default default with respect thereto, or waive, modify, amend or change any provision of the Note Agreement, the Notes or any other instrument or agreement entered into in connection therewith or this Guaranty; orotherwise relating thereto;
(2b) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder holder as direct or indirect security for the payment or performance of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the NotesGuaranteed Obligations; or
(3c) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the NotesGuaranteed Obligations. Each The Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, waives any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such the Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(bii) Each The Guarantor hereby waives, to the fullest extent permitted by law:
: (1a) notice of acceptance of this Guaranty by the Holders holders of Notes or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders holders upon this Guaranty (it being understood that every Indebtedness, liability and obligation described in Section 2 hereof all Guaranteed Obligations shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
; (2b) demand of payment by any Holder holder of Notes from the Company or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations Guaranteed Obligations hereby guaranteed; and
and (3c) presentment for the payment by any Holder holder of Notes or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such the Guarantor. The obligations of each the Guarantor under this Guaranty and the rights of any Holder holder of Notes to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of Table of Contents any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-offsetoff, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(iii) The obligations of the Guarantor hereunder shall be binding upon the Guarantor and its successors and assigns, and shall remain in full force and effect irrespective of:
(a) the genuineness, validity, regularity or enforceability of the Notes, the Note Agreement, this Guaranty or any Notes or any other instrument or agreement entered into in connection therewith or otherwise relating thereto, or any of the terms of any thereof, the continuance of any obligation on the part of the Company or any other Person on the Notes or under the Note Agreement or any such other instrument or agreement, or the power or authority or the lack of power or authority of the Company to execute and deliver the Note Agreement, the Notes or any such other instrument or agreement, or to perform any of its obligations thereunder or the existence or continuance of the Company or any other Person as a legal entity;
(b) any default, failure or delay, willful or otherwise, in the performance by the Company or any other Person of any obligations of any kind or character whatsoever of the Company or any other Person (including, without limitation, the Guaranteed Obligations);
(c) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of the Company or any other Person or in respect of the property of the Company or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the Company or any other Person;
(d) impossibility or illegality of performance on the part of the Company or any other Person of its obligations under the Notes, the Note Agreement, this Guaranty or any other Notes or any other instrument or agreement entered into in connection therewith or otherwise relating thereto;
(e) in respect of the Company or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Company or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the Company or any other Person and whether or not of the kind hereinbefore specified; Table of Contents
(f) any attachment, claim, demand, charge, lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against any Person, or any claims, demands, charges or liens of any nature, foreseen or unforeseen, incurred by any Person, or against any sums payable under this Guaranty, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided;
(g) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the payment or performance by any party of any of the Guaranteed Obligations;
(h) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to the Guarantor of failure of Company or any other Person to keep and perform any of the Guaranteed Obligations, or failure to resort for payment to the Company or to any other Person or to any other guaranty or to any property, security, Liens or other rights or remedies;
(i) the acceptance of any additional security or other guaranty, the advance of additional money to the Company or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, the Note Agreement or any other instrument or agreement entered into in connection therewith or otherwise relating thereto, or the sale, release, substitution or exchange of any security for the Notes;
(j) any defense whatsoever that the Company or any other Person might have to the payment of the Notes (principal, Yield-Maintenance Amount, if any, or interest or any other amounts due thereunder), other than payment in cash thereof, or to the payment, performance or observance of any of the other Guaranteed Obligations, whether through the satisfaction or purported satisfaction by the Company or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding up or otherwise;
(k) any act or failure to act with regard to the Notes, the Note Agreement, this Guaranty or any other instrument or agreement entered into in connection therewith or otherwise relating thereto, or anything which might vary the risk of the Guarantor; or
Appears in 1 contract
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each The Guarantor hereby consents and agrees that any Holder Noteholder or Holders Noteholders from time to time, with or without any further notice to or assent from any other Guarantor the Guarantor, may, without in any manner affecting the liability of any the Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders Noteholder may deem advisable:
(1i) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtednessindebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtednessindebtedness, liability or obligations of the Company on the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or instruments and this Guaranty; or
(2ii) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder Noteholder as direct or indirect security for the payment or performance of any Indebtednessindebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtednessindebtedness, liability or obligation of the Company on the Notes; or
(3iii) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any Indebtednessindebtedness, liability or obligation of the Company on the Notes. Each The Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such the Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each The Guarantor hereby waives, to the fullest extent permitted by law:
: (1i) notice of acceptance of this Guaranty by the Holders Noteholders or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders Noteholders upon this Guaranty (it being understood that every Indebtednessindebtedness, liability and obligation described in Section 2 hereof 1 shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
; (2ii) demand of payment by any Holder Noteholder from the Company or any other Person indebted in any manner on or for any of the Indebtednessindebtedness, liabilities or obligations hereby guaranteed; and
and (3iii) presentment for the payment by any Holder Noteholder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such the Guarantor. The obligations of each the Guarantor under this Guaranty and the rights of any Holder Noteholder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of the Guarantor hereunder shall be binding upon the Guarantor and its successors and assigns, and shall remain in full force and effect irrespective of:
(i) the genuineness, validity, regularity or enforceability of the Notes, the Note Purchase Agreements or any other instruments relating thereto or any of the terms of any thereof, the continuance of any obligation on the part of the Company or any other Person on the Notes or under the Note Purchase Agreements or the power or authority or the lack of power or authority of the Company to issue the Notes or execute and deliver the Note Purchase Agreements or to perform any of its obligations thereunder or the existence or continuance of the Company or any other Person as a legal entity; or
(ii) any default, failure or delay, willful or otherwise, in the performance by the Company or any other Person of any obligations of any kind or character whatsoever of the Company or any other Person (including, without limitation, the obligations and undertakings of the Company or any other Person under the Notes or the Note Purchase Agreements); or
(iii) any creditors' rights, bankruptcy, receivership or other insolvency proceeding of the Company or any other Person or in respect of the property of the Company or any other Person or any merger, consolidation, reorganization, dissolution, liquidation or winding up of the Company or any other Person; or
(iv) impossibility or illegality of performance on the part of the Company or any other Person of its obligations under the Notes, the Note Purchase Agreements or any other instruments; or
(v) in respect of the Company or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Company or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotions, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the Company or any other Person and whether or not of the kind hereinbefore specified; or
(vi) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against any Person, or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by any Person, or against any sums payable under this Guaranty, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(vii) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by any party of its respective obligations under the Notes, the Note Purchase Agreements or any instrument relating thereto; or
(viii) the failure of the Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or
(ix) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of Default and of nonpayment, any failure to give notice to the Guarantor of failure of the Company or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes or the Note Purchase Agreements or failure to resort for payment to the Company or any other Person or to any other guaranty or to any property, security, Liens or other rights or remedies; or
(x) the acceptance of any additional security or other guaranty, the advance of additional money to the Company or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes or the Note Purchase Agreements, or the sale, release, substitution or exchange of any security for the Notes; or
(xi) any defense whatsoever that the Company or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than payment in cash thereof, or to the performance or observance of any of the provisions of the Note Purchase Agreements, whether through the satisfaction or purported satisfaction by the Company or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise; or
(xii) any act or failure to act with regard to the Notes, the Note Purchase Agreements or anything which might vary the risk of the Guarantor; or
(xiii) any other circumstance which might otherwise constitute a defense available to, or a discharge of the Guarantor in respect of the obligations of the Guarantor under this Guaranty; provided, that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty that the obligations of the Guarantor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the payment of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and all other sums due and payable under the Note Purchase Agreements, at the place specified in and all in the manner and with the effect provided in the Notes and the Note Purchase Agreements, as amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Company shall Default under the terms of the Notes or the Note Purchase Agreements and that notwithstanding recovery hereunder for or in respect of any given Default or Defaults by the Company under the Notes or the Note Purchase Agreements, this Guaranty shall remain in full force and effect and shall apply to each and every subsequent Default.
(d) Subject to the provisions of the Note Purchase Agreements, all rights of any Noteholder may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the transfer of such Note whether with or without the consent of or notice to the Guarantor under this Guaranty or the Company.
(e) To the extent of any payments made under this Guaranty, the Guarantor shall be subrogated to the rights of the Noteholder upon whose Note such payment was made, but the Guarantor covenants and agrees that such right of subrogation shall be subordinate in right of payment to the rights of any Noteholder for which full payment has not been made or provided for and, to that end, the Guarantor agrees not to claim or enforce any such right of subrogation or any right of set-off or any other right which may arise on account of any payment made by the Guarantor in accordance with the provisions of this Guaranty, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of any Noteholder or Noteholders against the Company, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Company, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right unless and until 366 days after all of the Notes and all other sums due and payable under the Note Purchase Agreements have been fully paid and discharged. If any amount shall be paid to the Guarantor in violation of the preceding sentence at any time prior to the indefeasible cash payment in full of the Notes and all other amounts payable under the Note Purchase Agreements and this Guaranty, such amounts shall be held in trust for the benefit of the Noteholders and shall forthwith be paid to the Noteholders to be credited and applied to the amounts due or to become due with respect to the Notes and all other amounts payable under the Note Purchase Agreements and this Guaranty, whether matured or unmatured. The Guarantor acknowledges that it has received direct and indirect benefits from the financing arrangements contemplated by the Note Purchase Agreements and that the waiver set forth in this subsection is knowingly made as a result of the receipt of such benefits.
(f) The Guarantor agrees that to the extent the Company or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, liquidator, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Guarantor's obligations hereunder, as if said payment had not been made. The liability of the Guarantor hereunder shall not be reduced or discharged, in whole or in part, by any payment to any Noteholder from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(g) No Noteholder shall be under any obligation (i) to marshal any assets in favor of the Guarantor or in payment of any or all of the liabilities of the Company under or in respect of the Notes or the obligations of the Guarantor hereunder or (ii) to pursue any other remedy that the Guarantor may or may not be able to pursue itself and that may lighten the Guarantor's burden or any right to which the Guarantor hereby expressly waives.
(h) The obligations of the Guarantor with respect to the guaranty and all other obligations under this Guaranty of the Guarantor are direct and unsecured obligations of the Guarantor ranking pari passu as against the assets of the Guarantor and pari passu with all other present and future Indebtedness of the Guarantor which is not expressed to be subordinate or junior in rank to any other Indebtedness of the Guarantor (except to the extent that the foregoing is not true by virtue of, and solely by virtue of, Liens expressly permitted by the Note Purchase Agreements securing other Indebtedness).
Appears in 1 contract
Samples: Note Purchase Agreement (Insituform Technologies Inc)
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each The Subsidiary Guarantor hereby consents and agrees that any Holder Noteholder or Holders Noteholders from time to time, with or without any further notice to or assent from any other Guarantor the Subsidiary Guarantor, may, without in any manner affecting the liability of any the Subsidiary Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders Noteholder may deem advisable:
: (1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtednessindebtedness, liability or obligation of the Company Issuer, the Parent Guarantor or of any other Person person secondarily or otherwise liable for any Indebtednessindebtedness, liability or obligations of the Company Issuer on the Notes, or waive any Default default with respect thereto, or waive, modify, amend or change any provision of any other agreement or instruments and this Guaranty; or
or (2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder Noteholder as direct or indirect security for the payment or performance of any Indebtednessindebtedness, liability or obligation of the Company Issuer, the Parent Guarantor or of any other Person person secondarily or otherwise liable for any Indebtednessindebtedness, liability or obligation of the Company Issuer on the Notes; or
or (3) settle, adjust or compromise any claim of the Company Issuer against any other Person person secondarily or otherwise liable for any Indebtednessindebtedness, liability or obligation of the Company Issuer on the Notes. Each The Subsidiary Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such the Subsidiary Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each The Subsidiary Guarantor hereby waives, to the fullest extent permitted by law:
: (1) notice of acceptance of this Guaranty by the Holders Noteholders or of the creation, renewal or accrual of any liability of the CompanyIssuer, present or future, or of the reliance of such Holders Noteholders upon this Guaranty (it being understood that every Indebtednessindebtedness, liability and obligation described in Section 2 hereof Section.1 shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
; (2) demand of payment by any Holder Noteholder from the Company Issuer, the Parent Guarantor or any other Person person indebted in any manner on or for any of the Indebtednessindebtedness, liabilities or obligations hereby guaranteed; and
and (3) presentment for the payment by any Holder Noteholder or any other Person person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such the Subsidiary Guarantor. The obligations of each the Subsidiary Guarantor under this Guaranty and the rights of any Holder Noteholder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of the Subsidiary Guarantor hereunder shall be binding upon the Subsidiary Guarantor and its successors and assigns, and shall remain in full force and effect irrespective of: (1) the genuineness, validity, regularity or enforceability of the Notes, the Note Agreements or any other instruments relating thereto or any of the terms of any thereof, the continuance of any obligation on the part of the Issuer, the Parent Guarantor or any other person on the Notes or under the Note Agreements or the power or authority or the lack of power or authority of the Issuer to issue the Notes or execute and deliver the Note Agreements or to perform any of its obligations thereunder or the existence or continuance of the Issuer, the Parent Guarantor or any other person as a legal entity; or (2) any default, failure or delay, willful or otherwise, in the performance by the Issuer, the Parent Guarantor or any other person of any obligations of any kind or character whatsoever of the Issuer, the Parent Guarantor or any other person (including, without limitation, the obligations and undertakings of the Issuer, the Parent Guarantor or any other person under the Notes or the Note Agreements); or (3) any creditors' rights, bankruptcy, receivership or other insolvency proceeding of the Issuer, the Parent Guarantor or any other person or in respect of the property of the Issuer, the Parent Guarantor or any other person or any merger, consolidation, reorganization, dissolution, liquidation or winding up of the Issuer, the Parent Guarantor or any other person; or (4) impossibility or illegality of performance on the part of the Issuer, the Parent Guarantor or any other person of its obligations under the Notes, the Note Agreements or any other instruments; or
Appears in 1 contract
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that any Holder holder or Holders holders of any Notes from time to time, with or without any further notice to or assent from any other Guarantor may, without in any manner affecting the liability of any Guarantor under this Guarantyguaranty, and upon such terms and conditions as any such Holder holder or Holders holders may deem advisable:
(1i) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtednessindebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtednessindebtedness, liability or obligations of the Company on the Notes, or waive any Default default with respect thereto, or waive, modify, amend or change any provision of any other agreement instruments; provided that the procedures, if any, contained in such instruments to extend, modify, change, compromise, release, waive or this Guarantyamend the provisions of the relevant instruments relating to any such indebtedness shall be complied with; or
(2ii) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder holder as direct or indirect security for the payment or performance of any Indebtednessindebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtednessindebtedness, liability or obligation of the Company on the Notes; or
(3iii) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any Indebtednessindebtedness, liability or obligation of the Company on the Notes. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon itthem, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such each Guarantor shall at all times be bound by this Guaranty guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by law:
: (1i) notice of acceptance of this Guaranty guaranty by the Holders holders of the Notes or of the creation, renewal or accrual of any liability of the Company, Company present or future, or of the reliance of such Holders holders upon this Guaranty guaranty (it being understood that every Indebtednessindebtedness, liability and obligation described in Section 2 hereof arising under the Notes or this Agreement shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guarantyguaranty);
; (2ii) demand of payment by any Holder holder of any Note from the Company or any other Person indebted in any manner on or for any of the Indebtednessindebtedness, liabilities or obligations hereby guaranteed; and
and (3iii) presentment for the payment by any Holder holder of any Note or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantorthe Guarantors. The obligations of each Guarantor under this Guaranty guaranty and the rights of any Holder holder of any Note to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of each Guarantor hereunder shall be binding upon such Guarantor and its respective successors and assigns, and shall remain in full force and effect irrespective of:
(i) the genuineness, validity, regularity or enforceability of the Notes or this Agreement, or any of the terms of any thereof, the continuance of any obligation on the part of the Company or any other Person on the Notes or under this Agreement, or the power or authority or the lack of power or authority of the Company to issue the Notes or execute and deliver this Agreement, or to perform any of its obligations thereunder or the existence or continuance of the Company or any other Person as a legal entity; or
(ii) any default, failure or delay, willful or otherwise, in the performance by the Company or any other Person of any obligations of any kind or character whatsoever of the Company or any other Person (including, without limitation, the obligations and undertakings of the Company or any other Person under the Notes or this Agreement); or
(iii) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of the Company or any other Person or in respect of the property of the Company or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the Company or any other Person; or
(iv) impossibility or illegality of performance on the part of the Company or any other Person of its obligations under the Notes, this Agreement, or any other instruments; or
(v) in respect of the Company or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Company or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the Company or any other Person and whether or not of the kind hereinbefore specified; or
(vi) any attachment, claim, demand, charge, lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against any Person, or any claims, demands, charges or liens of any nature, foreseen or unforeseen, incurred by any Person, or against any sums payable under this guaranty, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(vii) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by any party of its respective obligations under the Notes, this Agreement or any instrument relating thereto; or
(viii) the failure of any Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Agreement, including this Section 14; or
(ix) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to a Guarantor of failure of the Company or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes or this Agreement, or failure to resort for payment to the Company or to any other Person or to any other guaranty or to any property, security, liens or other rights or remedies; or
(x) the acceptance of any additional security or other guaranty, the advance of additional money to the Company or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes or this Agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(xi) any defense whatsoever that the Company or any other Person might have to the payment of the Notes (principal, Make-Whole Amount, if any, or interest or any other amounts due thereunder, other than payment in cash thereof, or to the performance or observance of any of the provisions of this Agreement, whether through the satisfaction or purported satisfaction by the Company or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise; or
(xii) any act or failure to act with regard to the Notes or this Agreement, or anything which might vary the risk of any Guarantor; or
(xiii) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Guarantor in respect of the obligations of the Guarantors under this guaranty; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this guaranty that the obligations of each Guarantor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the payment of (x) the principal of, Make-Whole Amount, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and at the place specified in and all in the manner and with the effect provided in the Notes and this Agreement, as amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Company shall default under the terms of the Notes or this Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Company under the Notes or this Agreement, this guaranty shall remain in full force and effect and shall apply to each and every subsequent default.
(d) All rights of any holder of any Note may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the transfer of such Note whether with or without the consent of or notice to a Guarantor under this guaranty or to the Company
(e) Each Guarantor hereby subordinates to the rights of the holders of Notes under this Agreement and the Notes and agrees to defer any assertion, until such time as the Notes have been indefeasibly paid in cash in full, of any claim or other rights that it may now or hereafter acquire against the Company that arise from the existence, payment, performance or enforcement of a Guarantor’s obligations under this guaranty, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of any holder or holders of Notes against the Company, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Company, directly or indirectly, in cash or other property or by set off or in any other manner, payment or security on account of such claim, remedy or right. If any amount shall be paid to a Guarantor in violation of the preceding sentence at any time prior to the indefeasible cash payment in full of the Notes and all other amounts payable under this Agreement and this guaranty, such amount shall be held in trust for the benefit of the holders of the Notes and shall forthwith be paid to the holders of the Notes to be credited and applied to the amounts due or to become due with respect to the Notes and all other amounts payable under this Agreement and this guaranty, whether matured or unmatured. Each Guarantor acknowledges that it will receive material direct and indirect benefits from the financing arrangements contemplated by this Agreement and that the agreement set forth in this paragraph is knowingly made in contemplation of such benefits.
(f) Each Guarantor agrees that, to the extent the Company or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to each Guarantor’s obligations hereunder, as if said payment had not been made. The liability of each Guarantor hereunder shall not be reduced or discharged, in whole or in part, by any payment to any holder of any Note from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
Appears in 1 contract
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any other Guarantor may, without in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtedness, liability or obligation of the Company any Obligor or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligations of the Company such Obligor on the Notes, or waive any Default or Event of Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any Indebtedness, liability or obligation of the Company an Obligor or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company such Obligor on the Notes; or
(3) settle, adjust or compromise any claim of the Company an Obligor against any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company such Obligor on the Notes. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the Companyan Obligor, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every Indebtedness, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of payment by any Holder from the Company an Obligor or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by indefeasible payment in full in cash of the Notes and the obligations of the Company Obligors under the Note Purchase Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
Appears in 1 contract
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that the Administrative Agent and/or any Holder or Holders Lender from time to time, with or without any further notice to or assent from any other Guarantor may, without in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as any the Administrative Agent or such Holder or Holders Lender may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, increase, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtednessdebt, liability or obligation of the Company GEI or of any other Person secondarily or otherwise liable for any Indebtednessdebt, liability or obligations of the Company GEI on the NotesGuaranteed Obligations or under any Loan Document, or waive any Default or Event of Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this Guaranty; orLoan Document;
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, the Administrative Agent or any such Holder Lender as direct or indirect security for the payment or performance of any Indebtednessdebt, liability or obligation of the Company GEI or of any other Person secondarily or otherwise liable for any Indebtednessdebt, liability or obligation of the Company on the NotesGEI under any Loan Document; orand/or
(3) settle, adjust or compromise any claim of the Company GEI against any other Person secondarily or otherwise liable for any Indebtednessdebt, liability or obligation of the Company on the NotesGEI under any Loan Document. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and agrees that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders Administrative Agent or the Lenders or of the creation, renewal or accrual of any liability of the CompanyGEI, present or future, or of the reliance of such Holders the Administrative Agent or any of the Lenders upon this Guaranty (it being understood that every Indebtedness, liability and obligation all Guaranteed Obligations described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);; and
(2) demand of payment by any Holder the Administrative Agent on behalf of the Lenders from the Company GEI or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteedGuaranteed Obligations; and
(3) presentment for the payment by any Holder the Administrative Agent on behalf of the Lenders or any other Person of the Notes any Loan Document or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of any Holder the Administrative Agent to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of each Guarantor hereunder shall be binding upon such Guarantor and its successors and assigns, and shall remain in full force and effect until the date on which all Commitments of the Lenders to GEI shall have terminated, all Letters of Credit pursuant to the GEI Commitment shall have expired or terminated and all Obligations of GEI have indefeasibly been paid in full (the "Termination Date") and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including, without limitation, any of the following, whether or not with notice to or the consent of any Guarantor:
(1) the genuineness, validity, regularity or enforceability of any of the Loan Documents or any of the terms of any thereof, the continuance of any obligation on the part of GEI or any other Guarantor on or in respect of or under any Loan Document or the power or authority or the lack of power or authority of GEI to execute and deliver any Loan Document or of any other Guarantor to execute and deliver this Guaranty or to perform any of its obligations hereunder or the existence or continuance of GEI or any other Guarantor as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by GEI or any other Guarantor of any obligations of any kind or character whatsoever under any Loan Document; or
(3) any creditors' rights, bankruptcy, receivership or other insolvency proceeding of GEI or any other Guarantor or in respect of the property of GEI or any other Guarantor or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of GEI or any other Guarantor; or
(4) impossibility or illegality of performance on the part of GEI or any other Guarantor of its obligations under any Loan Document; or
(5) in respect of GEI or any other Guarantor, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to GEI or any other Guarantor, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of GEI or any other Guarantor and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process,lien or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, debt, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against GEI or any Guarantor or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by any Guarantor, or against any sums payable in respect of or under any Loan Document, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political sub- division thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by GEI or any Guarantor of its respective obligations under or in respect of any Loan Document; or
(8) the failure of any Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Guarantor of failure of GEI or any other Guarantor to keep and perform any obligation, covenant or agreement under the terms of any Loan Document or this Guaranty or failure to resort for payment to GEI or any other Guarantor or to any other guaranty or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other guaranty, the advance of additional money to GEI or any other Guarantor, amendments, modifications, consents or waivers with respect to any Loan Document, or the sale, release, substitution or exchange of any security for any Guaranteed Obligation of GEI; or
(11) any change in the ownership of any shares of GEI or any Guarantor; or
(12) any defense whatsoever that: (i) GEI or any other Guarantor might have to the payment under any Loan Document, other than payment thereof in Federal or other immediately available funds, or (ii) GEI or any other Guarantor might have to the performance or observance of any of the provisions of any Loan Document, whether through the satisfaction or purported satisfaction by GEI or any other Guarantor of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise; or
(13) any act or failure to act with regard to any Loan Document or anything which might vary the risk of any Guarantor; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of any Guarantor in respect of the obligations of any Guarantor under this Guaranty; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty that the obligations of each Guarantor shall be absolute, irrevocable and unconditional and shall not be discharged, impaired or varied except by the payment of all Obligations of GEI in accordance with their respective terms whenever the same shall become due and payable and all other sums due and payable under any Loan Document, at the place specified in and all in the manner and with the effect provided in the Credit Agreement, as may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, GEI shall default under or in respect of the terms of any Loan Document and that notwithstanding recovery hereunder for or in respect of any given default or defaults by GEI under any Loan Document shall remain in full force and effect and shall apply to each and every subsequent default.
(d) All rights of the Administrative Agent or any Lender hereunder may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the appointment of a successor to the Administrative Agent or any permitted transfer by a Lender of its rights under the Credit Agreement, whether with or without the consent of or notice to the Guarantors under this Guaranty or to GEI.
(e) To the extent of any payments made under this Guaranty, each Guarantor shall be subrogated to the rights of the Administrative Agent and/or the Lenders to whom such payment was made, but such Guarantor covenants and agrees that such right of subrogation shall be subordinate in right of payment to the prior indefeasible final payment in cash in full of all amounts due and owing by GEI with respect to the Obligations of GEI under the Loan Documents and by the Guarantors under this Guaranty, and the Guarantors shall not take any action to enforce such right of subrogation, and the Guarantors shall not accept any payment in respect of such right of subrogation, until the Termination Date. If any amount shall be paid to any Guarantor in violation of the preceding sentence at any time prior to the indefeasible payment in cash in full of all amounts payable by GEI under the Loan Documents and this Guaranty, such amount shall be held in trust for the benefit of the Lenders and shall forthwith be paid to the Administrative Agent for the benefit of the Administrative Agent and the Lenders to be credited and applied to the amounts due or to become due with respect to all amounts payable by GEI under the Loan Documents and this Guaranty, whether matured or unmatured. Each Guarantor acknowledges that it has received direct and indirect benefits from the financing arrangements contemplated by the Loan Documents and that the waiver set forth in this paragraph (e) is knowingly made as a result of the receipt of such benefits.
(f) Each Guarantor agrees that, to the extent GEI, any other Guarantor or any other Person makes any payment under any of the Loan Documents with respect to GEI's Obligations, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Guarantors' obligations hereunder, as if said payment had not been made. The liability of the Guarantors hereunder shall not be reduced or discharged, in whole or in part, by any payment to the Administrative Agent or any Lender from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(g) Neither the Administrative Agent nor any Lender, shall be under any obligation: (1) to xxxxxxxx any assets in favor of the Guarantors or in payment of any or all of the liabilities of GEI under or in respect of the Loan Documents or the obligations of the Guarantors hereunder or (2) to pursue any other remedy that the Guarantors may or may not be able to pursue themselves and that may lighten the Guarantors' burden, any right to which each Guarantor hereby expressly waives.
(h) The obligations of each Guarantor under this Guaranty rank pari passu in right of payment with all other Indebtedness of such Guarantor which is not secured or which is not expressly subordinated in right of payment to any other Indebtedness of such Guarantor.
Appears in 1 contract
Samples: Guaranty Agreement (Devry Inc)
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each The Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any other Guarantor time may, without in any manner affecting the liability of any the Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, increase, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtedness, liability or obligation of the Company Issuer or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligations of the Company Issuer on the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this GuarantyGuaranty (to the extent permitted by Section 6); or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any Indebtedness, liability or obligation of the Company Issuer or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company Issuer on the Notes; or
(3) settle, adjust or compromise any claim of the Company Issuer against any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company Issuer on the Notes. Each The Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such the Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each The Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the CompanyIssuer, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every all Indebtedness, liability liabilities and obligation obligations described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);; and
(2) demand of payment by any Holder from the Company Issuer or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such the Guarantor. The obligations of each the Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of the Guarantor hereunder shall be binding upon the Guarantor and its successors and assigns, and shall remain in full force and effect irrespective of:
(1) the genuineness, validity, regularity or enforceability of the Notes, the Note Purchase Agreement or any other agreement or any of the terms of any thereof, the continuance of any obligation on the part of the Issuer, any other guarantor or any other Person on or in respect of the Notes or under the Note Purchase Agreement or any other agreement or the power or authority or the lack of power or authority of the Issuer to issue the Notes or the Company or the Issuer to execute and deliver the Note Purchase Agreement or any other agreement or to perform any of its obligations hereunder or the existence or continuance of the Issuer or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by the Issuer or any other Person of any obligations of any kind or character whatsoever under the Notes, the Note Purchase Agreement or any other agreement; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of the Issuer, any other guarantor or any other Person or in respect of the property of the Issuer, any other guarantor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the Issuer, any other guarantor or any other Person; or
(4) impossibility or illegality of performance on the part of the Issuer, any other guarantor or any other Person of its obligations under the Notes, the Note Purchase Agreement or any other agreements; or
(5) in respect of the Issuer, any other guarantor or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Issuer, any other guarantor or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the Issuer, any other guarantor or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, foreseen or unforeseen, and whether or not valid, incurred by or against the Issuer or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by any Person, or against any sums payable in respect of the Notes or under the Note Purchase Agreement or this Guaranty, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by the Issuer or any other Person of its respective obligations under or in respect of the Notes, the Note Purchase Agreement or any other agreement; or
(8) the failure of the Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to the Guarantor of failure of the Issuer, any other guarantor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, the Note Purchase Agreement or any other agreement or failure to resort for payment to the Issuer, any other guarantor or to any other Person or to any other guaranty or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other guaranty, the advance of additional money to the Issuer or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, the Note Purchase Agreement or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any change in the ownership of any shares or other equity interests of the Issuer, the Guarantor, any other guarantor or any other Person; or
(12) any defense whatsoever that: (i) the Issuer or any other Person might have to the payment of the Notes (principal, Make-Whole Amount, if any, or interest), other than payment thereof in Federal or other immediately available funds, or (ii) the Issuer or any other Person might have to the performance or observance of any of the provisions of the Notes, the Note Purchase Agreement or any other agreement, whether through the satisfaction or purported satisfaction by the Issuer, any other guarantor or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise; or
(13) any act or failure to act with regard to the Notes, the Note Purchase Agreement, this Guaranty or any other agreement or anything which might vary the risk of the Guarantor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Guarantor or any other Person in respect of the obligations of the Guarantor or other Person under this Guaranty or any other agreement other than the final and indefeasible payment in full in cash of the Notes; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty that the obligations of the Guarantor shall be absolute, irrevocable and unconditional and shall not be discharged, impaired or varied except by the payment of the principal of, Make-Whole Amount, if any, or any other premium, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and all other sums due and payable under the Note Purchase Agreement, at the place specified in and all in the manner and with the effect provided in the Notes and the Note Purchase Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Issuer shall default under or in respect of the terms of the Notes or the Note Purchase Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Issuer under the Notes or the Note Purchase Agreement or the guaranty obligations of the other guarantor under the Note Purchase Agreement, this Guaranty shall remain in full force and effect and shall apply to each and every subsequent default.
(d) Subject to the deemed representations by a transferee set forth in Section 14.2, all rights of any Holder hereunder may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the transfer of any Note whether with or without the consent of or notice to the Guarantors under this Guaranty or to the Company or the Issuer (except as provided in Section 14 of the Note Purchase Agreement).
(e) To the extent of any payments made under this Guaranty, the Guarantor shall be subrogated to the rights of the Holder upon whose Notes such payment was made, but the Guarantor covenants and agrees that such right of subrogation shall be subordinate in right of payment to the prior indefeasible final payment in cash in full of all amounts due and owing by the Issuer with respect to the Notes and the Note Purchase Agreement, and the Guarantor shall not take any action to enforce such right of subrogation, and the Guarantor shall not accept any payment in respect of such right of subrogation, until all amounts due and owing by the Issuer under or in respect of the Notes and the Note Purchase Agreement and all amounts due and owing by the Guarantor hereunder have indefeasibly been finally paid in cash in full. If any amount shall be paid to the Guarantor in violation of the preceding sentence at any time prior to the later of the indefeasible payment in cash in full of the Notes and all other amounts payable under the Notes and this Guaranty, such amount shall be held in trust for the benefit of the Holders and shall forthwith be paid to the Holders to be credited and applied to the amounts due or to become due with respect to the Notes and all other amounts payable under the Note Purchase Agreement and this Guaranty, whether matured or unmatured. The Guarantor acknowledges that it has received direct and indirect benefits from the financing arrangements contemplated by the Note Purchase Agreement and that the waiver set forth in this paragraph (e) is knowingly made as a result of the receipt of such benefits.
(f) The Guarantor agrees that to the extent the Issuer, any other guarantor or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Guarantor’s obligations hereunder, as if said payment had not been made. The liability of the Guarantor hereunder shall not be reduced or discharged, in whole or in part, by any payment to any Holder from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(g) No Holder shall be under any obligation: (1) to xxxxxxxx any assets in favor of the Guarantor or in payment of any or all of the liabilities of the Company under or in respect of the Notes or the obligations of the Guarantor hereunder or (2) to pursue any other remedy that the Guarantor may or may not be able to pursue itself and that may lighten the Guarantor’s burden, any right to which the Guarantor hereby expressly waives.
(h) The obligations of the Guarantor under this Guaranty rank pari passu in right of payment with all other Indebtedness of the Guarantor which is not secured or which is not expressly subordinated in right of payment to any other Indebtedness of the Guarantor.
Appears in 1 contract
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any other Guarantor may, without in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, increase, change, compromise, release or extend the duration of the time for the performance or payment of any IndebtednessDebt, liability or obligation of the Company Company, the Issuer or of any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligations of the Issuer or the Company on the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this GuarantyGuaranty (to the extent permitted by Section 6); or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any IndebtednessDebt, liability or obligation of the Company Company, the Issuer or of any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligation of the Company Issuer on the Notes; or
(3) settle, adjust or compromise any claim of the Company Issuer against any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligation of the Company Issuer on the Notes. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunderhereunder until the payment in full in each of the principal, LIBOR Breakage Amount, if any, or interest on the Notes.
(b) Each Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the CompanyCompany or the Issuer, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every Indebtednessall Debt, liability liabilities and obligation obligations described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);; and
(2) demand of payment by any Holder from the Company Company, the Issuer or any other Person indebted in any manner on or for any of the IndebtednessDebt, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of each Guarantor hereunder shall be binding upon such Guarantor and its successors and assigns, and shall remain in full force and effect irrespective of:
(1) the genuineness, validity, regularity or enforceability of the Notes, the Note Purchase Agreement or any other agreement or any of the terms of any thereof, the continuance of any obligation on the part of the Issuer, any other Guarantor or any other Person on or in respect of the Notes or under the Note Purchase Agreement or any other agreement or the power or authority or the lack of power or authority of the Issuer to issue the Notes or the Company or the Issuer to execute and deliver the Note Purchase Agreement or any other agreement or of any other Guarantor to execute and deliver this Guaranty or to perform any of its obligations hereunder or the existence or continuance of the Company, the Issuer, any other Guarantor or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by the Company, the Issuer, any other Guarantor or any other Person of any obligations of any kind or character whatsoever under the Notes, the Note Purchase Agreement, this Guaranty or any other agreement; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of the Company, the Issuer, any other Guarantor or any other Person or in respect of the property of the Company, the Issuer, any other Guarantor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the Company, the Issuer, any other Guarantor or any other Person; or
(4) impossibility or illegality of performance on the part of the Company, the Issuer, any other Guarantor or any other Person of its obligations under the Notes, the Note Purchase Agreement, this Guaranty or any other agreements; or
(5) in respect of the Company, the Issuer, any other Guarantor or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Company, the Issuer, any other Guarantor or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the Company, the Issuer, any other Guarantor or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Debt, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against the Company, the Issuer, any Guarantor or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by any Person, or against any sums payable in respect of the Notes or under the Note Purchase Agreement or this Guaranty, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by the Company, the Issuer, any Guarantor or any other Person of its respective obligations under or in respect of the Notes, the Note Purchase Agreement, this Guaranty or any other agreement; or
(8) the failure of any Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Guarantor of failure of the Company, the Issuer, any other Guarantor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, the Note Purchase Agreement, this Guaranty or any other agreement or failure to resort for payment to the Company, the Issuer, any other Guarantor or to any other Person or to any other guaranty or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other guaranty, the advance of additional money to the Company, the Issuer or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, the Note Purchase Agreement or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any change in the ownership of any shares of the Company, the Issuer, any Guarantor or any other Person; or
(12) any defense whatsoever that: (i) the Company, the Issuer or any other Person might have to the payment of the Notes (principal, LIBOR Breakage Amount, if any, or interest), other than payment thereof in Federal or other immediately available funds, or (ii) the Company, the Issuer or any other Person might have to the performance or observance of any of the provisions of the Notes, the Note Purchase Agreement or any other agreement, whether through the satisfaction or purported satisfaction by the Company, the Issuer, any other Guarantor or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise; or
(13) any act or failure to act with regard to the Notes, the Note Purchase Agreement, this Guaranty or any other agreement or anything which might vary the risk of any Guarantor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Guarantor or any other Person in respect of the obligations of any Guarantor or other Person under this Guaranty or any other agreement other than the final and indefeasible payment in full in cash of the Notes; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty that the obligations of each Guarantor shall be absolute, irrevocable and unconditional and shall not be discharged, impaired or varied except by the payment of the principal of, LIBOR Breakage Amount, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and all other sums due and payable under the Note Purchase Agreement, at the place specified in and all in the manner and with the effect provided in the Notes and the Note Purchase Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Company or the Issuer shall default under or in respect of the terms of the Notes or the Note Purchase Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Company or the Issuer under the Notes or the Note Purchase Agreement, this Guaranty shall remain in full force and effect and shall apply to each and every subsequent
(d) All rights of any Holder hereunder may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the transfer of any Note whether with or without the consent of or notice to the Guarantors under this Guaranty or to the Company or the Issuer (except as provided in Section 14 of the Note Purchase Agreement).
Appears in 1 contract
Samples: Note Purchase Agreement (Jackson Hewitt Tax Service Inc)
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that Agent or any Holder Lender or Holders Lenders from time to time, with or without any further notice to or assent from any other Guarantor may, without in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as Agent any such Holder Lender or Holders Lenders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtedness, liability or obligation of the Company Borrower or of any other Person (including, without limitation, any other Guarantor) secondarily or otherwise liable for any Indebtedness, liability or obligations obligation of the Company Borrower on the NotesGuaranteed Obligations, or waive any Default or Event of Default with respect thereto, or waive, modify, amend or change any provision of the Loan Agreement, any other Loan Document, any other agreement or waive this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, Agent or any such Holder Lender as direct or indirect security for the payment or performance of any Indebtedness, liability or obligation of the Company Borrower or of any other Person (including, without limitation, any other Guarantor) secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company Borrower on the NotesGuaranteed Obligations; or
(3) settle, adjust or compromise any claim of the Company Borrower against any other Person (including, without limitation, any other Guarantor) secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company Borrower on the NotesGuaranteed Obligations. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders Agent or the Lenders or of the creation, renewal or accrual of any liability of the CompanyBorrower, present or future, or of the reliance of Agent or such Holders Lenders upon this Guaranty (it being understood that every Indebtedness, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2) notice of the making of any additional Loans pursuant to the Loan Agreement;
(3) demand of payment by Agent or any Holder Lender from the Company Borrower or any other Person (including, without limitation, any other Guarantor) indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(34) presentment for the payment by Agent or any Holder Lender or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of Agent and any Holder Lender to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of Guarantor hereunder shall be binding upon the Guarantor and its successors and assigns, and shall remain in full force and effect irrespective of:
(1) the genuineness, validity, regularity or enforceability of the Loans, the Loan Agreement, any other Loan Document or any other agreement or any of the terms of any thereof, the continuance of any obligation on the part of the Borrower or any other Person on or in respect of the Loan or under the Loan Agreement, any other Loan Document or any other agreement or the power or authority or the lack of power or authority of the Borrower to execute and deliver the Loan Agreement, any other Loan Document to which it is a party or any other agreement or of Guarantor to execute and deliver this Guaranty or to perform any of its obligations hereunder or the existence or continuance of the Borrower or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by the Borrower, any Guarantor or any other Person of any obligations of any kind or character whatsoever under Guaranteed Obligations, the Loans, the Loan Agreement, this Guaranty, any other Loan Document, or any other agreement; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of the Borrower, any Guarantor or any other Person or in respect of the property of the Borrower, any Guarantor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the Borrower, any Guarantor or any other Person; or
Appears in 1 contract
Samples: Guaranty Agreement (Sentio Healthcare Properties Inc)
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each and every event of default in the Agreement of Purchase and Sale and each and every default in payment of performance of any obligation of the Sellers under the Agreement of Purchase and Sale shall give rise to a separate claim and cause of action hereunder, and separate claims or suits may be made and brought, as the case may be hereunder as each such default occurs.
(b) The guaranty hereunder shall be a continuing, absolute, unconditional and irrevocable guaranty of payment and performance as aforesaid and shall remain in full force and effect until the obligations of the Sellers shall have been fully and satisfactorily discharged in accordance with the terms and provisions of the Agreement of Purchase and Sale and the Guarantor shall have fully and satisfactorily discharged all of his obligations under this Guaranty Agreement.
(c) The guaranty and the liability of the Guarantor hereunder shall be primary, direct and immediate and shall remain in full force and effect irrespective of the genuineness, validity, regularity or enforceability of the Agreement of Purchase and Sale or of any assignment or termination of Agreement of Purchase and Sale and shall in no wise be affected or impaired by (and no notice to the Guarantor shall be required in respect of) any compromise, waiver, settlement, release, renewal, extension, indulgence, change in or modification of any of the obligations and liabilities of the Sellers under the Agreement of Purchase and Sale, or by any redelivery, repossession, surrender or destruction of the Restaurants or any item thereof in whole or in part, or the transfer, assignment, subletting or mortgaging or the purported transfer, assignment, subletting or mortgaging of all or any part of the interest of Buyer in the Restaurants or any failure of title with respect to the Buyer or the interest in the Restaurants or any failure, neglect or omission as the part of the Buyer or any other person to give the Guarantor notice of the occurrence of any default by the Sellers under the Agreement of Purchase and Sale or to realize upon any obligations or liabilities of the Sellers, nor shall the obligation and liability of the Guarantor hereunder be impaired, diminished, abated, modified, changed, released, limited or otherwise affected by any set off, defense or counterclaim which the Sellers, the Buyer or the Guarantor may have or claim to have (other than payment of the obligations of the Sellers under the Agreement of Purchase and Sale or the performance of the Sellers of their other obligations under said agreements, at any time or from time to time or by the commencement by or against the Buyer, the Sellers or the Guarantor of any proceedings under any bankruptcy or insolvency law or laws relating to the relief of debtors, readjustment of indebtedness, reorganizations, arrangements, compositions or extensions or other similar laws or by any merger or consolidation of the Sellers or the Guarantor into, or with any other corporation or any sale, lease or transfer of any of the assets of the Sellers or the Guarantor to any other person, or any change in the ownership of any shares of capital stock of the Sellers, it being the intent and purpose hereof that the Guarantor shall not be entitled to and does hereby consents waive any and agrees all defenses available to guarantors, sureties and other secondary parties at law or in equity, whether or not referred to above. In order to hold the Guarantor liable hereunder, there shall be no obligation on the part of any person at any time to demand or resort for payment or performance to the Lessee or to any other person or corporation, their properties or assets or to any security, property or other rights or remedies whatsoever, and each person entitled to receive payments or the benefit or performance guaranteed hereunder shall have the right to enforce this guaranty irrespective of whether or not proceedings or steps are pending seeking resort to or realization upon or from any of the foregoing. Without limiting the foregoing, it is understood that any Holder or Holders repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, with the Sellers shall default under the terms of the Agreement of Purchase and Sale, and that notwithstanding recovery hereunder for or without in respect of any further notice given default or defaults by the Sellers under the Agreement of Purchase and Sale, this guaranty shall remain in force and effect and shall apply to each and every subsequent default. So long as default under the Agreement of Purchase and Sale shall have occurred and be continuing or assent from a default by the Guarantor hereunder, any claim against the Sellers by way of subrogation or otherwise which the Guarantor shall have by reason of any payment to the Lessor or any other Guarantor mayperson pursuant to this Guaranty Agreement shall not be asserted, enforced or collected as against (or to the detriment of) the Sellers (including, without limitation, any liquidator, trustee in bankruptcy, assignee for the benefit of creditors or receiver of property of assets of the Sellers), the Buyer or such other person in any manner affecting the liability action, suit or proceeding.
(d) No act or omission of any kind or at any time on the part of the Buyer or any other person in respect of any matter whatsoever shall in any way affect or impair this guaranty.
(e) The payment by the Guarantor to any person or any amount pursuant to this Guaranty Agreement shall not in any way entitle the Guarantor to any right, title or interest of such person under the Agreement of Purchase and Sale; provided that upon any payment by the Guarantor in accordance with this GuarantyGuaranty Agreement, and upon such terms and conditions as the Guarantor shall be subrogated to the rights of the payee to receive any such Holder payment from the Sellers and shall be entitled to receive such payment from the Sellers to recover any amount paid by the Guarantor pursuant to this Guaranty Agreement from the Sellers; provided, further, that the foregoing right to subrogation shall be subordinate to the rights of such payee and any other person entitled to payment or Holders may deem advisable:performance hereunder and under the Agreement of Purchase and Sale; and provided further that the Guarantor shall not be entitled to receive any such payment or to recover any such amount, whether pursuant to the foregoing right of subrogation or otherwise, so long as a default by the Guarantor hereunder shall have occurred and be continuing.
(1f) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or The obligations of the Company on Guarantor set forth herein constitute the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision full recourse obligations of any other agreement or this Guaranty; orthe Guarantor.
(2g) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes; or
(3) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes. Each The Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby unconditionally waives, to the fullest extent permitted by applicable law, notice of any of the matters specified in paragraph (c) hereof, all notices which may be required by statute, rule of law or otherwise, now or hereafter in effect to preserve intact any rights against the Guarantor, including, without limitation, any demand, presentment and all defensesprotest, counterclaims proof of notice of non-payment under Sellers Agreement of Purchase and Sale and notice of default or offsets which it might any failure on the part of the Sellers to perform and comply with any covenant, agreement, term or could have by reason thereofcondition of the Agreement of Purchase and Sale any right to the enforcement, it being understood that such Guarantor shall at all times be bound by this Guaranty assertion or exercise against the Sellers of any right, power, privilege or remedy conferred in the Agreement of Purchase and remain liable hereunderSale or otherwise, any requirement of diligence on the part of any person, any requirement to exhaust any remedies or to mitigate the damages resulting from default under the Agreement of Purchase and Sale.
(bh) Each At the option of the Buyer, the Guarantor hereby waivesmay be joined in any action or proceeding commenced by any such party against the Sellers in connection with or based on the Agreement of Purchase and Sale or any provision thereof, to and recovery for which the fullest extent permitted by law:Guarantor is liable hereunder may be had against the Guarantor in any such action or proceeding or in any independent action or proceeding against the Guarantor, without any requirement that any such party first assert, prosecute or exhaust any remedy or claim against the Sellers.
(1i) notice The guaranty hereunder shall continue to be effective to be reinstated, as the case may be, if at any time any payment of acceptance of this Guaranty any obligation guaranteed hereunder is rescinded or must otherwise be returned by the Holders person to whom payment thereof was made upon the insolvency, bankruptcy or reorganization of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every Indebtedness, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of payment by any Holder from the Company or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity Sellers or otherwise, shall all as though such payment had not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoeverbeen made.
Appears in 1 contract
Samples: Guaranty Agreement (WSMP Inc)
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each The Guarantor hereby consents and agrees that any the Holder or Holders from time to time, with or without any further notice to or assent from any other Guarantor may, without in any manner affecting the liability of any the Guarantor under this Guaranty, and upon such terms and conditions as any such the Holder or Holders may deem advisable:
(1i) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtednessindebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any IndebtednessIssuer, liability or amend the Note to increase the obligations of the Company on the Notesthereunder, or waive any Event of Default with respect thereto, or waive, modify, amend or change any provision of the Note or the Note Purchase Agreement or any other agreement or, subject to Section 6, of this Guaranty with respect to the Guarantor, waive, modify, amend or change any provision of this Guaranty; or
(2ii) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such the Holder as direct or indirect security for the payment or performance of any Indebtednessindebtedness, liability or obligation of the Company Issuer or of any other Person secondarily or otherwise liable for any Indebtednessindebtedness, liability or obligation of the Company on Issuer under the NotesNote or the Note Purchase Agreement; or
(3iii) settle, adjust or compromise any claim of the Company Issuer against any other Person secondarily or otherwise liable for any Indebtednessindebtedness, liability or obligation of the Company on Issuer under the NotesNote or the Note Purchase Agreement. Each The Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such the Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each The Guarantor hereby waives, to the fullest extent permitted by law:
(1i) notice of acceptance of this Guaranty by the Holders Holder or of the creation, renewal or accrual of any liability of the CompanyIssuer, present or future, or of the reliance of such Holders the Holder upon this Guaranty (it being understood that every Indebtednessindebtedness, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2ii) demand of payment by any the Holder from the Company or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteed; andIssuer;
(3iii) presentment for the payment by any the Holder or any other Person of the Notes Note or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such the Guarantor; and
(iv) notice of default and notice of nonpayment to or upon the Borrower with respect to the Guaranteed Obligations. The obligations of each the Guarantor under this Guaranty and the rights of any the Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of the Guarantor hereunder shall be binding upon the Guarantor and its successors and assigns, and shall remain in full force and effect irrespective of:
(i) the genuineness, validity, regularity or enforceability of the Note, the Note Purchase Agreement or any other agreement or any of the terms of any thereof, the continuance of any obligation on the part of the Issuer or any other Person on or in respect of the Note or under the Note Purchase Agreement or any other agreement or the power or authority or the lack of power or authority of the Issuer to issue the Note or to execute and deliver the Note Purchase Agreement or any other agreement or of the Guarantor to execute and deliver this Guaranty or to perform any of its obligations hereunder or the existence or continuance of the Issuer as a legal entity; or
(ii) any default, failure or delay, willful or otherwise, in the performance by the Issuer or the Guarantor of any obligations of any kind or character whatsoever under the Note, the Note Purchase Agreement, this Guaranty or any other agreement;
(iii) any creditors' rights, bankruptcy, receivership or other insolvency proceeding of the Issuer or in respect of the property of either the Issuer or the Guarantor or any merger, consolidation, reorganization, dissolution, liquidation, sale of all or substantially all of the assets of or winding up of the Issuer or the Guarantor; or
(iv) any other circumstance whatsoever which may or might in any manner or to any extent vary the risk of Guarantor as an obligor in respect of the Guaranteed Obligations or which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower or Guarantor for the Guaranteed Obligations, whether in a bankruptcy or insolvency proceeding or in any other instance; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty and the parties hereto that the obligations of the Guarantor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the payment of the Accreted Principal Amount and Interest on the Note in accordance with their respective terms whenever the same shall become due and payable as in the Note provided, at the place specified in and all in the manner and with the effect provided in the Note and the Note Purchase Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Issuer shall default under or in respect of the terms of the Note or the Note Purchase Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Issuer under the Note or the Note Purchase Agreement, this Guaranty shall remain in full force and effect and shall apply to each and every subsequent default.
(d) All rights of the Holder under this Guaranty shall be considered to be transferred or assigned at any time or from time to time upon the transfer of the Note whether with or without the consent of or notice to the Guarantor under this Guaranty or to the Issuer.
(e) To the extent of any payments made under this Guaranty, the Guarantor shall be subrogated to the rights of the Holder, but the Guarantor covenants and agrees that such right of subrogation and any and all claims of the Guarantor against the Issuer or any endorser or against any of their respective properties shall be junior and subordinate in right of payment to the prior indefeasible final payment in cash in full of all of the Note and satisfaction by the Issuer of its obligations under the Note Purchase Agreement and by the Guarantor of its obligation under this Guaranty, and the Guarantor shall not take any action to enforce such right of subrogation, and the Guarantor shall not accept any payment in respect of such right of subrogation, until all of the Note and all amounts payable by the Guarantor hereunder have indefeasibly been finally paid in cash in full and all of the obligations of the Issuer under the Note Purchase Agreement and of the Guarantor under this Guaranty have been satisfied. Notwithstanding any right of any Guarantor to ask, demand, sue for, take or receive any payment from the Issuer, all rights, liens and security interests of the Guarantor, whether now or hereafter arising and howsoever existing, in any assets of the Issuer shall be and hereby are subordinated to the rights, if any, of the Holder in those assets. The Guarantor shall not have any right to possession of any such asset or to foreclose upon any such asset, whether by judicial action or otherwise, unless and until all of the Note and the obligations of the Issuer under the Note Purchase Agreement shall have been paid in cash in full and satisfied.
(f) The Guarantor agrees that to the extent the Issuer makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Guarantor's obligations hereunder, as if said payment had not been made. The liability of the Guarantor hereunder shall not be reduced or discharged, in whole or in part, by any payment to the Holder from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity or fraud asserted by any account debtor or by any other Person.
(g) The Holder shall be under any obligation: (1) to marshal any assets in favor of the Guarantor or in payment of any or all of the liabilities of the Issuer under or in respect of the Note and the Note Purchase Agreement or the obligations of the Guarantor hereunder or (2) to pursue any other remedy that the Guarantor may or may not be able to pursue itself and that may lighten the Guarantor's burden, any right to which the Guarantor hereby expressly waives.
(h) If an event permitting the acceleration of the maturity of the principal amount of the Note shall at any time have occurred and be continuing and such acceleration shall at such time be prevented or the right of the Holder to receive any payment under any Note shall at such time be delayed or otherwise affected by reason of the pendency against the Issuer of a case or proceeding under a bankruptcy or insolvency law, the Guarantor agrees that, for purposes of this Guaranty and its obligations hereunder, the maturity of such principal amount shall be deemed to have been accelerated with the same effect as if the Holder had accelerated the same in accordance with the terms of the Note Purchase Agreement, and the Guarantor shall forthwith pay such accelerated Accreted Principal Amount of and Interest on the Note and any other amounts guaranteed hereunder.
(i) All payments to be made by the Guarantor under this Guaranty to any Holder shall be paid free and clear of and without any deduction or withholding for or on account of, any and all taxes, unless such deduction or withholding is required by law, in which case the Guarantor shall withhold such taxes and such withheld amounts shall be treated as paid to the Holder to extent they are remitted to the appropriate taxing authority, and no additional amounts shall be required to be made by the Guarantor to such person with respect to such taxes deducted or withheld; provided, however, all payments to be made by the Guarantor under this Guaranty to any Holder who has timely provided a properly completed and valid (i) Internal Revenue Service Form W-9 certifying that such person is not subject to United States federal backup withholding or (ii) applicable Internal Revenue Service Form W-8 (with applicable attachments) completed as required to claim the benefit of the portfolio interest exemption, applicable tax treaty, or other exemption from US source interest withholding tax shall be paid free and clear of and without any deduction or withholding for or on account of, any and all taxes and any such taxes shall be grossed up by the Guarantor.
Appears in 1 contract
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that the Administrative Agent and/or any Holder or Holders Secured Party from time to time, with or without any further notice to or assent from any other Guarantor may, without in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as any the Administrative Agent or such Holder or Holders Secured Party may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, increase, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtednessdebt, liability or obligation of the Company Guaranteed Borrower or of any other Person secondarily or otherwise liable for any Indebtednessdebt, liability or obligations of the Company Guaranteed Borrower on the NotesGuaranteed Obligations or under any Financing Document, or waive any Default or Event of Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this Guaranty; orFinancing Document;
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, the Administrative Agent or any such Holder Secured Party as direct or indirect security for the payment or performance of any Indebtednessdebt, liability or obligation of the Company Guaranteed Borrower or of any other Person secondarily or otherwise liable for any Indebtednessdebt, liability or obligation of the Company on the NotesGuaranteed Borrower under any Financing Document; orand/or
(3) settle, adjust or compromise any claim of the Company Guaranteed Borrower against any other Person secondarily or otherwise liable for any Indebtednessdebt, liability or obligation of the Company on the NotesGuaranteed Borrower under any Financing Document. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and agrees that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by lawLaw, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by lawLaw:
(1) notice of acceptance of this Guaranty by the Holders Administrative Agent or the Secured Parties or of the creation, renewal or accrual of any liability of the CompanyGuaranteed Borrower, present or future, or of the reliance of such Holders the Administrative Agent or any of the Secured Parties upon this Guaranty (it being understood that every Indebtedness, liability and obligation all Guaranteed Obligations described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);; and
(2) demand of payment by any Holder the Administrative Agent on behalf of the Secured Parties from the Company Guaranteed Borrower or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteedGuaranteed Obligations; and
(3) presentment for the payment by any Holder the Administrative Agent on behalf of the Secured Parties or any other Person of the Notes any Financing Document or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of any Holder the Administrative Agent to enforce such obligations by any proceedings, whether by action at lawLaw, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of each Guarantor hereunder shall be binding upon such Guarantor and its successors and assigns, and shall remain in full force and effect until the date on which all Commitments of the Lenders to the Guaranteed Borrower shall have terminated, all Letters of Credit issued on behalf of the Guaranteed Borrower shall have expired or terminated and all Obligations of the Guaranteed Borrower have indefeasibly been paid in full (the “Termination Date”) and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including, without limitation, any of the following, whether or not with notice to or the consent of any Guarantor:
(1) the genuineness, validity, regularity or enforceability of any of the Financing Documents or any of the terms of any thereof, the continuance of any obligation on the part of the Guaranteed Borrower or any other Guarantor on or in respect of or under any Financing Document or the power or authority or the lack of power or authority of the Guaranteed Borrower to execute and deliver any Financing Document or of any other Guarantor to execute and deliver this Guaranty or to perform any of its obligations hereunder or the existence or continuance of the Guaranteed Borrower or any other Guarantor as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by the Guaranteed Borrower or any other Guarantor of any obligations of any kind or character whatsoever under any Financing Document; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of the Guaranteed Borrower or any other Guarantor or in respect of the property of the Guaranteed Borrower or any other Guarantor or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the Guaranteed Borrower or any other Guarantor; or
(4) impossibility or illegality of performance on the part of the Guaranteed Borrower or any other Guarantor of its obligations under any Financing Document; or
(5) in respect of the Guaranteed Borrower or any other Guarantor, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Guaranteed Borrower or any other Guarantor, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the Guaranteed Borrower or any other Guarantor and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, lien or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, debt, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against the Guaranteed Borrower or any Guarantor or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by any Guarantor, or against any sums payable in respect of or under any Financing Document, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by the Guaranteed Borrower or any other Guarantor of its respective obligations under or in respect of any Financing Document; or
(8) the failure of any other Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any other Guarantor of failure of the Guaranteed Borrower or any other Guarantor to keep and perform any obligation, covenant or agreement under the terms of any Financing Document or this Guaranty or failure to resort for payment to the Guaranteed Borrower or any other Guarantor or to any other guaranty or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other guaranty, the advance of additional money to the Guaranteed Borrower or any other Guarantor, amendments, modifications, consents or waivers with respect to any Financing Document, or the sale, release, substitution or exchange of any security for any Guaranteed Obligation of the Guaranteed Borrower; or
(11) any change in the ownership of any shares of the Guaranteed Borrower or any Guarantor; or
(12) any defense whatsoever that: (i) the Guaranteed Borrower or any other Guarantor might have to the payment under any Financing Document, other than payment thereof in federal or other immediately available funds, or (ii) the Guaranteed Borrower or any other Guarantor might have to the performance or observance of any of the provisions of any Financing Document, whether through the satisfaction or purported satisfaction by the Guaranteed Borrower or any other Guarantor of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise; or
(13) any act or failure to act with regard to any Financing Document or anything which might vary the risk of any Guarantor; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of any Guarantor in respect of the obligations of any Guarantor under this Guaranty; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty that the obligations of each Guarantor shall be absolute, irrevocable and unconditional and shall not be discharged, impaired or varied except by the payment of all Obligations of the Guaranteed Borrower in accordance with their respective terms whenever the same shall become due and payable and all other sums due and payable under any Financing Document, at the place specified in and all in the manner and with the effect provided in the Credit Agreement. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Guaranteed Borrower shall default under or in respect of the terms of any Financing Document and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Guaranteed Borrower under any Financing Document shall remain in full force and effect and shall apply to each and every subsequent default.
(d) All rights of the Administrative Agent or any Secured Party hereunder may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the appointment of a successor to the Administrative Agent or any permitted transfer by a Lender of its rights under the Credit Agreement, whether with or without the consent of or notice to the Guarantors under this Guaranty or to the Guaranteed Borrower.
(e) To the extent of any payments made under this Guaranty, each Guarantor shall be subrogated to the rights of the Administrative Agent and/or the Secured Parties to whom such payment was made, but such Guarantor covenants and agrees that such right of subrogation shall be subordinate in right of payment to the prior indefeasible final payment in cash in full of all amounts due and owing by the Guaranteed Borrower with respect to the Obligations of the Guaranteed Borrower under the Financing Documents and by the Guarantors under this Guaranty, and the Guarantors shall not take any action to enforce such right of subrogation, and the Guarantors shall not accept any payment in respect of such right of subrogation, until the Termination Date. If any amount shall be paid to any Guarantor in violation of the preceding sentence at any time prior to the indefeasible payment in cash in full of all amounts payable by the Guaranteed Borrower under the Financing Documents and this Guaranty, such amount shall be held in trust for the benefit of the Secured Parties and shall forthwith be paid to the Administrative Agent for the benefit of the Administrative Agent and the Secured Parties to be credited and applied to the amounts due or to become due with respect to all amounts payable by the Guaranteed Borrower under the Financing Documents and this Guaranty, whether matured or unmatured. Each Guarantor acknowledges that it has received direct and indirect benefits from the financing arrangements contemplated by the Financing Documents and that the waiver set forth in this paragraph (e) is knowingly made as a result of the receipt of such benefits.
(f) Each Guarantor agrees that, to the extent the Guaranteed Borrower, any other Guarantor or any other Person makes any payment under any of the Financing Documents with respect to the Guaranteed Borrower's Obligations, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Guarantors’ obligations hereunder, as if said payment had not been made. The liability of the Guarantors hereunder shall not be reduced or discharged, in whole or in part, by any payment to the Administrative Agent or any Secured Party from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(g) Neither the Administrative Agent nor any Secured Party, shall be under any obligation: (1) to marshal any assets in favor of the Guarantors or in payment of any or all of the liabilities of the Guaranteed Borrower under or in respect of the Financing Documents or the obligations of the Guarantors hereunder or (2) to pursue any other remedy that the Guarantors may or may not be able to pursue themselves and that may lighten the Guarantors’ burden, any right to which each Guarantor hereby expressly waives.
(h) The obligations of each Guarantor under this Guaranty rank pari passu in right of payment with all other Indebtedness of such Guarantor which is not secured or which is not expressly subordinated in right of payment to any other Indebtedness of such Guarantor.
Appears in 1 contract
Samples: Guaranty Agreement (Devry Inc)
GENERAL PROVISIONS RELATING TO THE GUARANTY. (ai) Each The Guarantor hereby consents and agrees that any Holder holder or Holders holders of Notes from time to time, with or without any further notice to or assent from any other the Guarantor may, without in any manner affecting the liability of any the Guarantor under this Guaranty, and upon such terms and conditions as any such Holder holder or Holders holders may deem advisable:
(1a) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the payment or performance or payment of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligations of the Company on the NotesGuaranteed Obligations, or waive any Default default with respect thereto, or waive, modify, amend or change any provision of the Note Agreement, the Notes or any other instrument or agreement entered into in connection therewith or this Guaranty; orotherwise relating thereto;
(2b) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder holder as direct or indirect security for the payment or performance of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the NotesGuaranteed Obligations; or
(3c) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the NotesGuaranteed Obligations. Each The Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, waives any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such the Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(bii) Each The Guarantor hereby waives, to the fullest extent permitted by law:
: (1a) notice of acceptance of this Guaranty by the Holders holders of Notes or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders holders upon this Guaranty (it being understood that every Indebtedness, liability and obligation described in Section 2 hereof all Guaranteed Obligations shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
; (2b) demand of payment by any Holder holder of Notes from the Company or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations Guaranteed Obligations hereby guaranteed; and
and (3c) presentment for the payment by any Holder holder of Notes or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such the Guarantor. The obligations of each the Guarantor under this Guaranty and the rights of any Holder holder of Notes to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-offsetoff, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(iii) The obligations of the Guarantor hereunder shall be binding upon the Guarantor and its successors and assigns, and shall remain in full force and effect irrespective of:
(a) the genuineness, validity, regularity or enforceability of the Notes, the Note Agreement or this Guaranty or any other instrument or agreement entered into in connection therewith or otherwise relating thereto, or any of the terms of any thereof, the continuance of any obligation on the part of the Company or any other Person on the Notes or under the Note Agreement or any such other instrument or agreement, or the power or authority or the lack of power or authority of the Company to execute and deliver the Note Agreement, the Notes or any such other instrument or agreement, or to perform any of its obligations thereunder or the existence or continuance of the Company or any other Person as a legal entity;
(b) any default, failure or delay, willful or otherwise, in the performance by the Company or any other Person of any obligations of any kind or character whatsoever of the Company or any other Person (including, without limitation, the Guaranteed Obligations);
(c) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of the Company or any other Person or in respect of the property of the Company or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, sale of all or substantially all of the assets, or winding up, of the Company or any other Person;
(d) impossibility or illegality of performance on the part of the Company or any other Person of its obligations under the Notes, the Note Agreement or this Guaranty or any other instrument or agreement entered into in connection therewith or otherwise relating thereto;
(e) in respect of the Company or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Company or any other Person, or impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the Company or any other Person and whether or not of the kind hereinbefore specified;
(f) any attachment, claim, demand, charge, lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against any Person, or any claims, demands, charges or liens of any nature, foreseen or unforeseen, incurred by any Person, or against any sums payable under this Guaranty, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided;
(g) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the payment or performance by any party of any of the Guaranteed Obligations;
(h) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to the Guarantor of failure of Company or any other Person to keep and perform any of the Guaranteed Obligations, or failure to resort for payment to the Company or to any other Person or to any other guaranty or to any property, security, Liens or other rights or remedies;
(i) the acceptance of any additional security or other guaranty, the advance of additional money to the Company or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, the Note Agreement or any other instrument or agreement entered into in connection therewith or otherwise relating thereto, or the sale, release, substitution or exchange of any security for the Notes;
(j) any defense whatsoever that the Company or any other Person might have to the payment of the Notes (principal, Yield-Maintenance Amount, if any, or interest or any other amounts due thereunder), other than payment in cash thereof, or to the payment, performance or observance of any of the other Guaranteed Obligations, whether through the satisfaction or purported satisfaction by the Company or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding up or otherwise;
(k) any act or failure to act with regard to the Notes, the Note Agreement, this Guaranty or any other instrument or agreement entered into in connection therewith or otherwise relating thereto, or anything which might vary the risk of the Guarantor; or
(l) any other circumstance (other than payment and performance in full of the Guaranteed Obligations) which might otherwise constitute a defense available to, or a discharge of, the Guarantor in respect of its obligations under this Guaranty; provided, that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty that the obligations of the Guarantor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the full and prompt payment and performance of all of the Guaranteed Obligations. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Company or any other Person shall default under the terms of the Notes, the Note Agreement or any other instrument or agreement entered into in connection therewith or otherwise relating thereto and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Company or any other Person under the Notes, the Note Agreement or any such other instrument or agreement, this Guaranty shall remain in full force and effect and shall apply to each and every subsequent default.
(iv) All rights of any holder of Notes may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the transfer of such Note whether with or without the consent of or notice to the Guarantor under this Guaranty or to the Company.
(v) The Guarantor hereby subordinates to the rights of the holders of Notes under the Note Agreement, the Notes or any other instrument or agreement entered into in connection therewith or otherwise relating thereto, and agrees to defer any assertion of, until such time as the Guaranteed Obligations have been indefeasibly paid and performed in full, any claim or other rights that it may now or hereafter acquire against the Company or any other Person that arise from the existence, payment, performance or enforcement of the Guarantor’s obligations under this Guaranty, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of any holder or holders of Notes against the Company or any other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Company or any other Person, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim, remedy or right. If any amount shall be paid to the Guarantor in violation of the preceding sentence at any time prior to the payment and performance in full of all the Guaranteed Obligations, such amount shall be held in trust for the benefit of the holders of Notes and shall forthwith be paid to such holders to be credited and applied to the Guaranteed Obligations, whether matured or unmatured.
(vi) The Guarantor agrees that to the extent the Company or any other Person makes any payment on any Note or in respect of any of the other Guaranteed Obligations, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Guarantor’s obligations hereunder, as if said payment had not been made. The liability of the Guarantor hereunder shall not be reduced or discharged, in whole or in part, by any payment to any holder of Notes from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(vii) The holders of Notes shall have no obligation to (a) to marshal any assets in favor of the Guarantor or in payment of any or all of the Guaranteed Obligations or (b) pursue any other remedy that the Guarantor may or may not be able to pursue itself and that may lighten the Guarantor’s burden, any right to which the Guarantor hereby expressly waives.
Appears in 1 contract
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any other Guarantor may, without in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any IndebtednessDebt, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligations of the Company on the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or waive this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any IndebtednessDebt, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligation of the Company on the Notes; or
(3) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligation of the Company on the Notes. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every IndebtednessDebt, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of payment by any Holder from the Company or any other Person indebted in any manner on or for any of the IndebtednessDebt, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of the Guarantors hereunder shall be binding upon the Guarantors and their successors and assigns, and shall remain in full force and effect irrespective of:
(1) the genuineness, validity, regularity or enforceability of the Notes, the Note Agreement or any other agreement or any of the terms of any thereof, the continuance of any obligation on the part of the Company or any other Person on or in respect of the Notes or under the Note Agreement or any other agreement or the power or authority or the lack of power or authority of the Company to issue the Notes or the Company to execute and deliver the Note Agreement or any other agreement or of any Guarantor to execute and deliver this Guaranty or to perform any of its obligations hereunder or the existence or continuance of the Company or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by the Company, any Guarantor or any other Person of any obligations of any kind or character whatsoever under the Notes, the Note Agreement, this Guaranty or any other agreement; or
(3) any creditors' rights, bankruptcy, receivership or other insolvency proceeding of the Company, any Guarantor or any other Person or in respect of the property of the Company, any Guarantor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the Company, any Guarantor or any other Person; or
(4) impossibility or illegality of performance on the part of the Company, any Guarantor or any other Person of its obligations under the Notes, the Note Agreement, this Guaranty or any other agreements; or
(5) in respect of the Company or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Company or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the Company or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Debt, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against the Company, any Guarantor or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by the Company, any Guarantor or any other Person, or against any sums payable in respect of the Notes or under the Note Agreement or this Guaranty, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by the Company, any Guarantor or any other Person of its respective obligations under or in respect of the Notes, the Note Agreement, this Guaranty or any other agreement; or
(8) the failure of any Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Guarantor of failure of the Company, any Guarantor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, the Note Agreement, this Guaranty or any other agreement or failure to resort for payment to the Company, any Guarantor or to any other Person or to any other guaranty or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other guaranty, the advance of additional money to the Company or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, the Note Agreement or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any merger or consolidation of the Company, any Guarantor or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of the Company, any Guarantor or any other Person to any other Person, or any change in the ownership of any shares of the Company, any Guarantor or any other Person; or
(12) any defense whatsoever that: (i) the Company or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than payment thereof in Federal or other immediately available funds or (ii) the Company or any other Person might have to the performance or observance of any of the provisions of the Notes, the Note Agreement or any other agreement, whether through the satisfaction or purported satisfaction by the Company or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise; or
(13) any act or failure to act with regard to the Notes, the Note Agreement, this Guaranty or any other agreement or anything which might vary the risk of any Guarantor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Guarantor or any other Person in respect of the obligations of any Guarantor or other Person under this Guaranty or any other agreement; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty and the parties hereto that the obligations of each Guarantor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the payment of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided, at the place specified in and all in the manner and with the effect provided in the Notes and the Note Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Company shall default under or in respect of the terms of the Notes or the Note Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Company under the Notes or the Note Agreement, this Guaranty shall remain in full force and effect and shall apply to each and every subsequent default.
(d) All rights of any Holder may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the transfer of such Note whether with or without the consent of or notice to the Guarantors under this Guaranty or to the Company.
(e) To the extent of any payments made under this Guaranty, the Guarantors shall be subrogated to the rights of the Holder or Holders upon whose Notes such payment was made, but each Guarantor covenants and agrees that such right of subrogation shall be junior and subordinate in right of payment to the prior indefeasible final payment in cash in full of all amounts due and owing by the Company with respect to the Notes and the Note Agreement and by the Guarantors under this Guaranty, and the Guarantors shall not take any action to enforce such right of subrogation, and the Guarantors shall not accept any payment in respect of such right of subrogation, until all amounts due and owing by the Company under or in respect of the Notes and the Note Agreement and all amounts due and owing by the Guarantors hereunder have indefeasibly been finally paid in cash in full. If any amount shall be paid to any Guarantor in violation of the preceding sentence at any time prior to the later of the indefeasible payment in cash in full of the Notes and all other amounts payable under the Notes, the Note Agreement and this Guaranty, such amount shall be held in trust for the benefit of the Holders and shall forthwith be paid to the Holders to be credited and applied to the amounts due or to become due with respect to the Notes and all other amounts payable under the Note Agreement and this Guaranty, whether matured or unmatured.
(f) Each Guarantor agrees that to the extent the Company or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Guarantors' obligations hereunder, as if said payment had not been made. The liability of the Guarantors hereunder shall not be reduced or discharged, in whole or in part, by any payment to any Holder from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity or fraud asserted by any account debtor or by any other Person.
(g) No Holder shall be under any obligation: (1) to marxxxxx xxy assets in favor of the Guarantors or in payment of any or all of the liabilities of the Company under or in respect of the Notes or the obligations of the Guarantors hereunder or (2) to pursue any other remedy that the Guarantors may or may not be able to pursue themselves and that may lighten the Guarantors' burden, any right to which each Guarantor hereby expressly waives.
Appears in 1 contract
Samples: Subsidiary Guaranty Agreement (Granite Construction Inc)
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any other Guarantor may, without in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any IndebtednessDebt, liability or obligation of the Company Obligors or of any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligations of the Company Obligors on the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or waive this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any IndebtednessDebt, liability or obligation of the Company Obligors or of any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligation of the Company Obligors on the Notes; or
(3) settle, adjust or compromise any claim of the Company Obligors against any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligation of the Company Obligors on the Notes. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the CompanyObligors, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every IndebtednessDebt, liability and obligation described in Section 2 Sectiona2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of payment by any Holder from the Company Obligors or any other Person indebted in any manner on or for any of the IndebtednessDebt, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of the Guarantors hereunder shall be binding upon the Guarantors and their successors and assigns, and shall remain in full force and effect irrespective of:
(1) the genuineness, validity, regularity or enforceability of the Notes, the Note Purchase Agreements or any other agreement or any of the terms of any thereof, the continuance of any obligation on the part of the Obligors or any other Person on or in respect of the Notes or under the Note Purchase Agreements or any other agreement or the power or authority or the lack of power or authority of the Obligors to issue the Notes or the Obligors to execute and deliver the Note Purchase Agreements or any other agreement or of any Guarantor to execute and deliver this Guaranty or to perform any of its obligations hereunder or the existence or continuance of the Obligors or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by the Obligors, any Guarantor or any other Person of any obligations of any kind or character whatsoever under the Notes, the Note Purchase Agreements, this Guaranty or any other agreement; or
(3) any creditors' rights, bankruptcy, receivership or other insolvency proceeding of the Obligors, any Guarantor or any other Person or in respect of the property of the Obligors, any Guarantor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the Obligors, any Guarantor or any other Person; or
(4) impossibility or illegality of performance on the part of the Obligors, any Guarantor or any other Person of its obligations under the Notes, the Note Purchase Agreements, this Guaranty or any other agreements; or
(5) in respect of the Obligors or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Obligors or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the Obligors or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Debt, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against the Obligors, any Guarantor or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by the Obligors, any Guarantor or any other Person, or against any sums payable in respect of the Notes or under the Note Purchase Agreements or this Guaranty, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by the Obligors, any Guarantor or any other Person of its respective obligations under or in respect of the Notes, the Note Purchase Agreements, this Guaranty or any other agreement; or
(8) the failure of any Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Guarantor of failure of the Obligors, any Guarantor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, the Note Purchase Agreements, this Guaranty or any other agreement or failure to resort for payment to the Obligors, any Guarantor or to any other Person or to any other guaranty or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other guaranty, the advance of additional money to the Obligors or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, the Note Purchase Agreements or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any merger or consolidation of the Obligors, any Guarantor or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of the Obligors, any Guarantor or any other Person to any other Person, or any change in the ownership of any shares of the Obligors, any Guarantor or any other Person; or
(12) any defense whatsoever that: (i) the Obligors or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than payment thereof in Federal or other immediately available funds, or (ii) the Obligors or any other Person might have to the performance or observance of any of the provisions of the Notes, the Note Purchase Agreements or any other agreement, whether through the satisfaction or purported satisfaction by the Obligors or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise, other than the defense of indefeasible payment in full in cash of the Notes; or
(13) any act or failure to act with regard to the Notes, the Note Purchase Agreements, this Guaranty or any other agreement or anything which might vary the risk of any Guarantor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Guarantor or any other Person in respect of the obligations of any Guarantor or other Person under this Guaranty or any other agreement, other than the defense of indefeasible payment in full in cash of the Notes; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty and the parties hereto that the obligations of each Guarantor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the payment of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided, at the place specified in and all in the manner and with the effect provided in the Notes and the Note Purchase Agreements, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Obligors shall default under or in respect of the terms of the Notes or the Note Purchase Agreements and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Obligors under the Notes or the Note Purchase Agreements, this Guaranty shall remain in full force and effect and shall apply to each and every subsequent default.
(d) All rights of any Holder may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the transfer of such Note whether with or without the consent of or notice to the Guarantors under this Guaranty or to the Obligors.
(e) To the extent of any payments made under this Guaranty, the Guarantors shall be subrogated to the rights of the Holder or Holders upon whose Notes such payment was made, but each Guarantor covenants and agrees that such right of subrogation shall be junior and subordinate in right of payment to the prior indefeasible final payment in cash in full of all amounts due and owing by the Obligors with respect to the Notes and the Note Purchase Agreements and by the Guarantors under this Guaranty, and the Guarantors shall not take any action to enforce such right of subrogation, and the Guarantors shall not accept any payment in respect of such right of subrogation, until all amounts due and owing by the Obligors under or in respect of the Notes and the Note Purchase Agreements and all amounts due and owing by the Guarantors hereunder have indefeasibly been finally paid in cash in full. If any amount shall be paid to any Guarantor in violation of the preceding sentence at any time prior to the indefeasible payment in cash in full of the Notes and all other amounts payable under the Notes, the Note Purchase Agreements and this Guaranty, such amount shall be held in trust for the benefit of the Holders and shall forthwith be paid to the Holders to be credited and applied to the amounts due or to become due with respect to the Notes and all other amounts payable under the Note Purchase Agreements and this Guaranty, whether matured or unmatured.
(f) Each Guarantor agrees that to the extent the Obligors or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Guarantors' obligations hereunder, as if said payment had not been made. The liability of the Guarantors hereunder shall not be reduced or discharged, in whole or in part, by any payment to any Holder from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(g) No Holder shall be under any obligation: (1) to marshal any assets in favor of the Guarantors or in payment of any or all of the liabilities of the Obligors under or in respect of the Notes or the obligations of the Guarantors hereunder or (2) to pursue any other remedy that the Guarantors may or may not be able to pursue themselves and that may lighten the Guarantors burden, any right to which each Guarantor hereby expressly waives.
Appears in 1 contract
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each The Guarantor hereby consents and agrees that any Note Holder or Note Holders may from time to time, with or without any further notice to or assent from any other the Guarantor may, and without in any manner affecting the liability of any the Guarantor under this Guaranty, and upon such terms and conditions as any such Note Holder or Note Holders may deem advisable:
(1i) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the payment or performance or payment of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligations of the Company on the NotesObligations, or waive any Default default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this GuarantyNote Document; or
(2ii) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Note Holder as direct or indirect security for the payment or performance of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the NotesObligations; or
(3iii) settle, adjust or compromise any claim of the Company ESOP against any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the NotesObligations. Each The Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, waives any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such the Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each The Guarantor hereby waives, to the fullest extent permitted by law:
(1i) notice of acceptance of this Guaranty by the Note Holders or of the creation, renewal or accrual of any liability of the Company, ESOP present or future, or of the reliance of such Note Holders upon this Guaranty (it being understood that every Indebtedness, liability and obligation described in Section 2 hereof all Obligations shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
; (2ii) demand of payment by any Note Holder from the Company ESOP or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations Obligations hereby guaranteed; and
and (3iii) presentment for the payment by any Note Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such the Guarantor. The obligations of each the Guarantor under this Guaranty and the rights of any Note Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of the Guarantor hereunder shall be binding upon the Guarantor and its successors and assigns, and shall remain in full force and effect irrespective of:
(i) the genuineness, validity, regularity or enforceability of the Notes, the Note Agreement, this Guaranty or any of the other Note Documents, or any of the terms of any thereof, the continuance of any obligation on the part of the ESOP, the ESOP Trustee or any other Person on the Notes or under the Note Agreement or any other Note Document, or the power or authority or the lack of power or authority of the ESOP Trust to issue and sell the Notes pursuant to the Note Agreement, to execute and deliver the Note Agreement or any other Note Document, or to perform any of its obligations thereunder or the existence or continuance of the ESOP Trust, the ESOP Trustee or any other Person as a legal entity; or
(ii) any default, failure or delay, willful or otherwise, in the performance by the ESOP Trust, the ESOP Trustee or any other Person of any obligations of any kind or character whatsoever of the ESOP Trust, the ESOP Trustee or any other Person (including, without limitation, the Obligations); or
(iii) any creditors' rights, bankruptcy, receivership or other insolvency proceeding of the ESOP or any other Person or in respect of the property of the ESOP, any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the ESOP or any other Person; or
(iv) impossibility or illegality of performance on the part of the ESOP Trust, the ESOP Trustee or any other Person of its obligations under the Notes, the Note Agreement, this Guaranty or any other Note Document; or
(v) in respect of the ESOP, the ESOP Trustee or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the ESOP, the ESOP Trustee or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the ESOP, the ESOP Trustee or any other Person and whether or not of the kind hereinbefore specified; or
(vi) any attachment, claim, demand, charge, lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against any Person, or any claims, demands, charges or liens of any nature, foreseen or unforeseen, incurred by any Person, or against any sums payable under this Guaranty, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(vii) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the payment or performance by any party of any of the Obligations; or
(viii) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to the Guarantor of failure of the ESOP, the ESOP Trustee or any other Person to keep and perform any of the Obligations, or failure to resort for payment to the ESOP or to any other Person or to any other guaranty or to any property, security, Liens or other rights or remedies; or
(ix) the acceptance of any additional security or other guaranty, the advance of additional money to the ESOP or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, the Note Agreement or any other Note Document, or the sale, release, substitution or exchange of any security for the Notes; or
(x) any defense whatsoever that the ESOP, the ESOP Trustee or any other Person might have to the payment of the Notes (principal, Yield-Maintenance Amount, if any, or interest or any other amounts due thereunder), other than payment in cash thereof, or to the payment, performance or observance of any of the other Obligations, whether through the satisfaction or purported satisfaction by the ESOP, the ESOP Trustee or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise; or
(xi) any act or failure to act with regard to the Notes, the Note Agreement, this Guaranty or any other Note Document, or anything which might vary the risk of the Guarantor; or
(xii) any other circumstance (other than payment and performance in full of the Obligations) which might otherwise constitute a defense available to, or a discharge of, the Guarantor in respect of its obligations under this Guaranty; provided, that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty that the obligations of the Guarantor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the full and prompt payment and performance of all of the Obligations. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the ESOP or any other Person shall default under the terms of the Notes, the Note Agreement or any other Note Document and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the ESOP or any other Person under the Notes, the Note Agreement or any other Note Document, this Guaranty shall remain in full force and effect and shall apply to each and every subsequent default.
(d) All rights of any Note Holder may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the transfer of such Note whether with or without the consent of or notice to the Guarantor under this Guaranty or to the ESOP Trustee.
(e) The Guarantor hereby subordinates to the rights of the Note Holders under the Notes, the Note Agreement and the other Note Documents and agrees to defer any assertion, until such time as the Obligations have been indefeasibly paid and performed in full, of any claim or other rights that it may now or hereafter acquire against the ESOP or any other Person that arise from the existence, payment, performance or enforcement of the Guarantor's obligations under this Guaranty, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of any Note Holder or Note Holders against the ESOP or any other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the ESOP or any other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right. If any amount shall be paid to the Guarantor in violation of the preceding sentence at any time prior to the payment and performance in full of all the Obligations, such amount shall be held in trust for the benefit of the Note Holders and shall forthwith be paid to the Note Holders to be credited and applied to the Obligations, whether matured or unmatured.
(f) The Guarantor agrees that to the extent the ESOP or any other Person makes any payment on any Note or in respect of any of the other Obligations, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Guarantor's obligations hereunder, as if said payment had not been made. The liability of the Guarantor hereunder shall not be reduced or discharged, in whole or in part, by any payment to any Note Holder from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(g) Neither the Note Holders nor the Collateral Trustee shall be under any obligation (i) to xxxxxxxx any assets in favor of the Guarantor or in payment of any or all of the Obligations or (ii) to pursue any other remedy that the Guarantor may or may not be able to pursue itself and that may lighten the Guarantor's burden, any right to which the Guarantor hereby expressly waives.
Appears in 1 contract
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each The Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any the other Guarantor Guarantors may, without in any manner affecting the liability of any the Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any IndebtednessDebt, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligations of the Company on the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any IndebtednessDebt, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligation of the Company on the Notes; or
(3) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligation of the Company on the Notes. Each The Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such the Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.. BGC Partners, Inc. Guaranty
(b) Each The Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every IndebtednessDebt, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of payment by any Holder from the Company or any other Person indebted in any manner on or for any of the IndebtednessDebt, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such the Guarantor. The obligations of each the Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of the Guarantor hereunder shall be binding upon the Guarantor and its successors and assigns, and shall remain in full force and effect until the entire principal, interest and premium, if any, on the Notes and all other sums due pursuant to Section 2 shall have been paid and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including without limitation any of the following, whether or not with notice to or the consent of the Guarantor:
(1) the genuineness, validity, regularity or enforceability of the Notes, the Note Purchase Agreement, any other Guaranty or any other agreement or any of the terms of any thereof, the continuance of any obligation on the part of the Company, any other Guarantor or any other Person on or in respect of the Notes or under the Note Purchase Agreement, any other Guaranty or any other agreement or the power or authority or the lack of power or authority of the Company to issue the Notes or the Company to execute and deliver the Note Purchase Agreement or any other agreement or of any other Guarantor to execute and deliver the other Guaranty to which it is a party or to perform any of its obligations hereunder or thereunder or the existence or continuance of the Company, any other Guarantor or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by the Company, any other Guarantor or any other Person of any obligations of any kind or character whatsoever under the Notes, the Note Purchase Agreement, this Guaranty, any other Guaranty or any other agreement; or XXX Partners, Inc. Guaranty
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of the Company, any other Guarantor or any other Person or in respect of the property of the Company, any other Guarantor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the Company, any other Guarantor or any other Person; or
(4) impossibility or illegality of performance on the part of the Company, any other Guarantor or any other Person of its obligations under the Notes, the Note Purchase Agreement, this Guaranty, any other Guaranty or any other agreement; or
(5) in respect of the Company, any other Guarantor or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Company, any other Guarantor or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the Company, any other Guarantor or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Debt, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against the Company, the Guarantor, any other Guarantor or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by the Company, the Guarantor, any other Guarantor or any other Person, or against any sums payable in respect of the Notes or under the Note Purchase Agreement, this Guaranty, any other Guaranty or other agreement so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by the Company, the Guarantor, any other Guarantor or any other Person of its respective obligations under or in respect of the Notes, the Note Purchase Agreement, this Guaranty, any other Guaranty or any other agreement; or
(8) the failure of the Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or XXX Partners, Inc. Guaranty
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to the Guarantor of failure of the Company, any other Guarantor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, the Note Purchase Agreement, this Guaranty, any other Guaranty or any other agreement or failure to resort for payment to the Company, any other Guarantor or to any other Person or to any other guaranty or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other guaranty, the advance of additional money to the Company or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, the Note Purchase Agreement, this Guaranty, any other Guaranty or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any merger or consolidation of the Company, the Guarantor, any other Guarantor or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of the Company, any other Guarantor or any other Person to any other Person, or any change in the ownership of any shares of the Company, the Guarantor, any other Guarantor or any other Person; or
(12) any defense whatsoever that: (i) the Company or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than payment thereof in Federal or other immediately available funds, or (ii) the Company or any other Person might have to the performance or observance of any of the provisions of the Notes, the Note Purchase Agreement, this Guaranty, any other Guaranty or any other agreement, whether through the satisfaction or purported satisfaction by the Company, the Guarantor, any other Guarantor or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise, other than the defense of indefeasible payment in full in cash of the Notes; or
(13) any act or failure to act with regard to the Notes, the Note Purchase Agreement, this Guaranty, any other Guaranty or any other agreement or anything which might vary the risk of the Guarantor, any other Guarantor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Guarantor, any other Guarantor or any other Person in respect of the obligations of the Guarantor, any other Guarantor or other Person under this Guaranty, any other Guaranty or any other agreement, other than the defense of indefeasible payment in full in cash of the Notes; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty and the parties hereto that the obligations of the Guarantor hereunder shall be absolute and unconditional and shall not be discharged, XXX Partners, Inc. Guaranty impaired or varied except by the payment of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and all other sums due and payable under the Note Purchase Agreement, at the place specified in and all in the manner and with the effect provided in the Notes and the Note Purchase Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Company shall default under or in respect of the terms of the Notes or the Note Purchase Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Company under the Notes or the Note Purchase Agreement, this Guaranty shall remain in full force and effect and shall apply to each and every subsequent default.
(d) All rights of any Holder may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the transfer of any Note whether with or without the consent of or notice to the Guarantor under this Guaranty or to the Company.
(e) To the extent of any payments made under this Guaranty, the Guarantor shall be subrogated to the rights of the Holder upon whose Notes such payment was made, but the Guarantor covenants and agrees that such right of subrogation shall be subordinate in right of payment to the prior indefeasible final payment in cash in full of all amounts due and owing by the Company with respect to the Notes and the Note Purchase Agreement and by the Guarantor under this Guaranty, and the Guarantor shall not take any action to enforce such right of subrogation, and the Guarantor shall not accept any payment in respect of such right of subrogation, until all amounts due and owing by the Company under or in respect of the Notes and the Note Purchase Agreement and all amounts due and owing by the Guarantor hereunder have indefeasibly been finally paid in cash in full. If any amount shall be paid to the Guarantor in violation of the preceding sentence at any time prior to the later of the indefeasible payment in cash in full of the Notes and all other amounts payable under the Notes, the Note Purchase Agreement and this Guaranty, such amount shall be held in trust for the benefit of the Holders and shall forthwith be paid to the Holders to be credited and applied to the amounts due or to become due with respect to the Notes and all other amounts payable under the Note Purchase Agreement and this Guaranty, whether matured or unmatured. The Guarantor acknowledges that it has received direct and indirect benefits from the financing arrangements contemplated by the Note Purchase Agreement and that the waiver set forth in this paragraph (e) is knowingly made as a result of the receipt of such benefits.
(f) The Guarantor agrees that to the extent the Company, any other Guarantors or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Guarantor’s obligations hereunder, as if said payment had not been made. The liability of the Guarantor hereunder shall not be reduced or discharged, in whole or in part, by any payment to any Holder from any source that is thereafter paid, BGC Partners, Inc. Guaranty returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(g) No Holder shall be under any obligation: (1) to xxxxxxxx any assets in favor of the Guarantor or in payment of any or all of the liabilities of the Company under or in respect of the Notes or the obligations of the Guarantor hereunder or (2) to pursue any other remedy that the Guarantor may or may not be able to pursue themselves and that may lighten the Guarantor’s burden, any right to which the Guarantor hereby expressly waives.
(h) The obligations of the Guarantor under this Guaranty rank pari passu in right of payment with all other Debt of the Guarantor which is not secured or which is not expressly subordinated in right of payment to any other Debt of the Guarantor.
Appears in 1 contract
Samples: Guaranty (BGC Partners, Inc.)
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any other Guarantor may, without in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any IndebtednessDebt, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligations of the Company on the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any IndebtednessDebt, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligation of the Company on the Notes; or
(3) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligation of the Company on the Notes. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every IndebtednessDebt, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of payment by any Holder from the Company or any other Person indebted in any manner on or for any of the IndebtednessDebt, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-offset‑off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of the Guarantors hereunder shall be binding upon the Guarantors and their successors and assigns, and shall remain in full force and effect until the entire principal, interest and premium, if any, on the Notes and all other sums due pursuant to Section 2 shall have been paid and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including without limitation any of the following, whether or not with notice to or the consent of the Guarantors:
(1) the genuineness, validity, regularity or enforceability of the Notes, the Note Purchase Agreement or any other agreement or any of the terms of any thereof, the continuance of any obligation on the part of the Company, any other Guarantors or any other Person on or in respect of the Notes or under the Note Purchase Agreement or any other agreement or the power or authority or the lack of power or authority of the Company to issue the Notes or the Company to execute and deliver the Note Purchase Agreement or any other agreement or of any other Guarantors to execute and deliver this Guaranty or any other agreement or to perform any of its obligations hereunder or the existence or continuance of the Company or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by the Company, any other Guarantor or any other Person of any obligations of any kind or character whatsoever under the Notes, the Note Purchase Agreement, this Guaranty or any other agreement; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of the Company, any other Guarantor or any other Person or in respect of the property of the Company, any other Guarantor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the Company, any other Guarantor or any other Person; or
Appears in 1 contract
Samples: Note Purchase Agreement (Sensient Technologies Corp)
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each The Guarantor hereby consents and agrees that the Trustee or any Holder Noteholder or Holders Noteholders from time to time, with or without any further notice to or assent from any other the Guarantor may, without in any manner affecting the liability of any the Guarantor under this Guaranty, and upon such terms and conditions as the Trustee or any such Holder or Holders Noteholder may deem advisable:
(1i) extend in whole or in part (by renewal or otherwise), accelerate (in accordance with the terms of the Indenture), modify, change, increase the rate of interest on, compromise, release or extend the duration of the time for the performance or payment of any Indebtednessindebtedness, liability or obligation of the Company or of any other Person person secondarily or otherwise liable for any Indebtednessindebtedness, liability or obligations of the Company on the Notes, or waive any Default default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this Guarantyinstruments; or
(2ii) accept, sell, release, surrender, modify, impair, exchange or substitute any and all propertyproperty or other guarantees, of any nature and from whomsoever received, held by, or for the benefit of, the Trustee or any such Holder Noteholder as direct or indirect security for the payment or performance of any Indebtednessindebtedness, liability or obligation of the Company or of any other Person person secondarily or otherwise liable for any Indebtednessindebtedness, liability or obligation of the Company on the Notes; or
(3iii) settle, adjust or compromise any claim of the Company against any other Person person secondarily or otherwise liable for any Indebtednessindebtedness, liability or obligation of the Company on the Notes. Each The Guarantor hereby ratifies and confirms any such extension, acceleration, renewal, modification, change, increase, release, extension, waiver, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and agrees that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such the Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each The Guarantor hereby waives, to the fullest extent permitted by law:
: (1i) notice of acceptance of this Guaranty by the Holders Trustee and the Noteholders or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders Noteholders upon this Guaranty (it being understood that every Indebtednessindebtedness, liability and obligation described in Section 2 1 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
; (2ii) demand of payment by the Trustee or any Holder Noteholder from the Company or any other Person person indebted in any manner on or for any of the Indebtednessindebtedness, liabilities or obligations hereby guaranteed; and
and (3iii) presentment for the payment by any Holder Noteholder or any other Person person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such the Guarantor. The obligations of each the Guarantor under this Guaranty and the rights of any Holder the Trustee to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of the Guarantor hereunder shall be binding upon the Guarantor and its successors and assigns, and shall remain in full force and effect irrespective of:
(i) the genuineness, validity or enforceability of the Notes, the Note Agreements, the Indenture or any other instruments relating thereto or any of the terms of any thereof, the continuance of any obligation on the part of the Company or any other person on the Notes, under the Note Agreements or under the Indenture or the power or authority or the lack of power or authority of the Company to issue the Notes or execute and deliver the Note Agreements or the Indenture or to perform any of its obligations thereunder or the existence or continuance of the Company or any other person as a legal entity; or
(ii) any default, failure or delay, willful or otherwise, in the performance by the Company or any other person of any obligations of any kind or character whatsoever of the Company or any other person (including, without limitation, the obligations and undertakings of the Company or any other person under the Notes, Note Agreements or the Indenture); or
(iii) any creditors' rights, bankruptcy, receivership or other insolvency proceeding of the Company or any other person or in respect of the property of the Company or any other person or any merger, consolidation, reorganization, dissolution, liquidation or winding up of the Company or any other person; or
(iv) impossibility or illegality of performance on the part of the Company or any other person of its obligations under the Notes, the Note Agreements, the Indenture or any other instruments; or
(v) in respect of the Company or any person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Company or any other person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotions, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the Company or any other person and whether or not of the kind hereinbefore specified, including a breach or default under any of the Collateral Agreements; or
(vi) any attachment, claim, demand, charge, lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against any person, or any claims, demands, charges or liens of any nature, foreseen or unforeseen, incurred by any person, or against any sums payable under this Guaranty, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(vii) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by any party of its respective obligations under the Notes, the Note Agreements, the Indenture or any instrument relating thereto; or
(viii) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to the Guarantor of failure of the Company or any other person to keep and perform any obligation, covenant or agreement under the terms of the Notes, the Note Agreements or the Indenture, or failure to resort for payment to the Company or to any other person or to any other guaranty or to any property, security, liens or other rights or remedies; or
(ix) the acceptance of any additional security or other guaranty, the advance of additional money to the Company or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, the Note Agreements or the Indenture, or the sale, release, substitution or exchange of any security for the Notes, including without limitation, the release of collateral under the Indenture; or
(x) any defense whatsoever that the Company or any other Person might have to the payment of any of the Notes or to the performance or observance of any of the provisions of the Note Agreements or the Indenture, whether through the satisfaction or purported satisfaction by the Company or any other person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise; or
(xi) any act or failure to act with regard to the Notes, the Note Agreements or the Indenture or anything which might vary the risk of the Guarantor; or
(xii) any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Guarantor in respect of the obligations of the Guarantor under this Guaranty; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty that the obligations of the Guarantor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the payment of the principal, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes, the Note Agreements and the Indenture provided, at the place specified in and all in the manner and with the effect provided in the Notes, the Note Agreements and the Indenture, as amended or modified from time to time.
(d) The Guarantor agrees that to the extent the Company or any other person makes any payment of any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the obligations of the Guarantor hereunder, as if said payment had not been made. The liability of the Guarantor hereunder shall not be reduced or discharged, in whole or in part, by any payment to the Trustee or any Noteholder from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any Person.
(e) The Trustee shall not be under any obligation (i) to marsxxxx xxx assets in favor of the Guarantor or in payment of any or all of the liabilities of the Company under or in respect of the Notes or the obligations of the Guarantor hereunder or (ii) to pursue any other remedy that the Guarantor may or may not be able to pursue itself and that may lighten the Guarantor's burden, any right to which the Guarantor hereby expressly waives to the fullest extent permitted by law.
(f) The obligations of the Guarantor under this Guaranty rank pari passu in right of payment with all other Indebtedness (actual or contingent) of the Guarantor which is not secured or the subject of any statutory trust or preference or which is not expressly subordinated in right of payment to any other Indebtedness.
(g) To the extent of any payments made under this Guaranty, the Guarantor making such payment shall be subrogated to the rights of the Noteholder upon whose Note such payment was made, but the Guarantor covenants and agrees that such right of subrogation shall be subordinate in right of payment to the rights of any Noteholder for which full payment has not been made or provided for and, to that end, the Guarantor agrees not to claim or enforce any such right of subrogation or any right of set-off or any other right which may arise on account of any payment made by the Guarantor in accordance with the provisions of this Guaranty unless and until all of the Notes and all other sums due and payable under the Notes, Note Agreements and the Indenture have been fully paid and discharged.
Appears in 1 contract
Samples: Guaranty Agreement (Energysouth Inc)
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Subsidiary Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any other Subsidiary Guarantor may, without in any manner affecting the liability of any Subsidiary Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1i) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligations of the Company on the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or waive this Guaranty; or
(2ii) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes; or
(3iii) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes. Each Subsidiary Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such Subsidiary Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Subsidiary Guarantor hereby waives, to the fullest extent permitted by law:
(1i) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every Indebtedness, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2ii) demand of payment by any Holder from the Company or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(3iii) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Subsidiary Guarantor. The obligations of each Subsidiary Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of the Subsidiary Guarantors hereunder shall be binding upon the Subsidiary Guarantors and their successors and assigns, and shall remain in full force and effect irrespective of:
(i) the genuineness, validity, regularity or enforceability of the Notes, each Note Purchase Agreement, the Security Documents or any other agreement or any of the terms of any thereof, the continuance of any obligation on the part of the Company or any other Person on or in respect of the Notes or under any Note Purchase Agreement, the Security Documents or any other agreement or the power or authority or the lack of power or authority of the Company to issue the Notes or the Company to execute and deliver any Note Purchase Agreement, the Security Documents or any other agreement or of any Subsidiary Guarantor to execute and deliver this Guaranty or to perform any of its obligations hereunder or the existence or continuance of the Company or any other Person as a legal entity; or
(ii) any default, failure or delay, willful or otherwise, in the performance by the Company, any Subsidiary Guarantor or any other Person of any obligations of any kind or character whatsoever under the Notes, any Note Purchase Agreement, the Security Documents, this Guaranty or any other agreement; or
(iii) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of the Company, any Subsidiary Guarantor or any other Person or in respect of the property of the Company, any Subsidiary Guarantor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the Company, any Subsidiary Guarantor or any other Person; or
(iv) impossibility or illegality of performance on the part of the Company, any Subsidiary Guarantor or any other Person of its obligations under the Notes, any Note Purchase Agreement, the Security Documents , this Guaranty or any other agreements; or
(v) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against the Company, any Subsidiary Guarantor or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by the Company, any Subsidiary Guarantor or any other Person, or against any sums payable in respect of the Notes or under any Note Purchase Agreement, the Security Documents or this Guaranty, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(vi) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by the Company, any Subsidiary Guarantor or any other Person of its respective obligations under or in respect of the Notes, the Note Purchase Agreements, the Security Documents, this Guaranty or any other agreement; or
(vii) the failure of any Subsidiary Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or
(viii) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Subsidiary Guarantor of failure of the Company, any Subsidiary Guarantor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, any Note Purchase Agreement, the Security Documents, this Guaranty or any other agreement or failure to resort for payment to the Company, any Subsidiary Guarantor or to any other Person or to any other guaranty or to any property, security, Liens or other rights or remedies; or
(ix) the acceptance of any additional security or other guaranty, the advance of additional money to the Company or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, any Note Purchase Agreement, the Security Documents or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(x) any merger or consolidation of the Company, any Subsidiary Guarantor or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of the Company, any Subsidiary Guarantor or any other Person to any other Person, or any change in the ownership of any shares of the Company, any Subsidiary Guarantor or any other Person; or
(xi) any defense whatsoever that: (1) the Company or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than payment thereof in accordance with the terms thereof, or (2) the Company or any other Person might have to the performance or observance of any of the provisions of the Notes, any Note Purchase Agreement, the Security Documents or any other agreement, whether through the satisfaction or purported satisfaction by the Company or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise, other than the defense of indefeasible payment in full of the Notes; or
(xii) any act or failure to act with regard to the Notes, any Note Purchase Agreement, the Security Documents, this Guaranty or any other agreement or anything which might vary the risk of any Subsidiary Guarantor or any other Person; or
(xiii) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Subsidiary Guarantor or any other Person in respect of the obligations of any Subsidiary Guarantor or other Person under this Guaranty or any other agreement, other than the defense of indefeasible payment in full of the Notes; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty and the parties hereto that the obligations of each Subsidiary Guarantor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the payment of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided, at the place specified in and all in the manner and with the effect provided in the Notes and each Note Purchase Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Company shall default under or in respect of the terms of the Notes or any Note Purchase Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Company under the Notes or any Note Purchase Agreement, this Guaranty shall remain in full force and effect and shall apply to each and every subsequent default.
(d) All rights of any Holder may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the transfer of such Note whether with or without the consent of or notice to the Subsidiary Guarantors under this Guaranty or to the Company.
(e) To the extent of any payments made under this Guaranty, the Subsidiary Guarantors shall be subrogated to the rights of the Holder or Holders upon whose Notes such payment was made, but each Subsidiary Guarantor covenants and agrees that such right of subrogation shall be junior and subordinate in right of payment to the prior indefeasible final payment in cash in full of all amounts due and owing by the Company with respect to the Notes and each Note Purchase Agreement and by the Subsidiary Guarantors under this Guaranty, and the Subsidiary Guarantors shall not take any action to enforce such right of subrogation, and the Subsidiary Guarantors shall not accept any payment in respect of such right of subrogation, until all amounts owed by the Company under or in respect of the Notes and each Note Purchase Agreement and all amounts owed by the Subsidiary Guarantors hereunder have indefeasibly been finally paid in full. If any amount shall be paid to any Subsidiary Guarantor in violation of the preceding sentence at any time prior to the indefeasible payment in cash in full of the Notes and all other amounts payable under the Notes, each Note Purchase Agreement and this Guaranty, such amount shall be held in trust for the benefit of the Holders and shall forthwith be paid to the Holders to be credited and applied to the amounts due or to become due with respect to the Notes and all other amounts payable under each Note Purchase Agreement and this Guaranty, whether matured or unmatured.
(f) To the extent of any payments made under this Guaranty, each Subsidiary Guarantor making such payment shall have a right of contribution from the other Subsidiary Guarantors, but such Subsidiary Guarantor covenants and agrees that such right of contribution shall be subordinate in right of payment to the rights of the Holders for which full payment has not been made or provided for and, to that end, such Subsidiary Guarantor agrees not to claim or enforce any such right of contribution unless and until all of the Notes and all other sums due and payable under any Note Purchase Agreement have been fully and irrevocably paid and discharged.
(g) Each Subsidiary Guarantor agrees that to the extent the Company or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Subsidiary Guarantors’ obligations hereunder, as if said payment had not been made. The liability of the Subsidiary Guarantors hereunder shall not be reduced or discharged, in whole or in part, by any payment to any Holder from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(h) No Holder shall be under any obligation: (1) to marshal any assets in favor of the Subsidiary Guarantors or in payment of any or all of the liabilities of the Company under or in respect of the Notes or the obligations of the Subsidiary Guarantors hereunder or (2) to pursue any other remedy that the Subsidiary Guarantors may or may not be able to pursue themselves and that may lighten the Subsidiary Guarantors’ burden, any right to which each Subsidiary Guarantor hereby expressly waives.
Appears in 1 contract
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each The Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any other Guarantor time may, without in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any IndebtednessDebt, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligations of the Company on the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any IndebtednessDebt, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligation of the Company on the Notes; or
(3) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligation of the Company on the Notes. Each The Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such the Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each The Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every IndebtednessDebt, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of payment by any Holder from the Company or any other Person indebted in any manner on or for any of the IndebtednessDebt, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such the Guarantor. The obligations of each the Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement and each Supplemental Note Purchase Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of the Guarantor hereunder shall be binding upon the Guarantor and its successors and assigns, and shall remain in full force and effect until the entire principal, interest and premium, if any, on the Notes and all other sums due pursuant to Section 2 shall have been paid and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including without limitation any of the following, whether or not with notice to or the consent of the Guarantor:
(1) the genuineness, validity, regularity or enforceability of the Notes, the Note Purchase Agreement, any Supplemental Note Purchase Agreement or any other agreement or any of the terms of any thereof, the continuance of any obligation on the part of the Company or any other Person on or in respect of the Notes or under the Note Purchase Agreement or under any Supplemental Note Purchase Agreement or any other agreement or the power or authority or the lack of power or authority of the Company to issue the Notes or the Company to execute and deliver the Note Purchase Agreement or any Supplemental Note Purchase Agreement or any other agreement or the existence or continuance of the Company or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by the Company or any other Person of any obligations of any kind or character whatsoever under the Notes, the Note Purchase Agreement, any Supplemental Note Purchase Agreement or any other agreement; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of the Company or any other Person or in respect of the property of the Company or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the Company or any other Person; or
(4) impossibility or illegality of performance on the part of the Company or any other Person of its obligations under the Notes, the Note Purchase Agreement, any Supplemental Note Purchase Agreement or any other agreements; or
(5) in respect of the Company or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Company or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the Company or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Debt, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against the Company or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by the Company or any other Person, or against any sums payable in respect of the Notes or under the Note Purchase Agreement or under any Supplemental Note Purchase Agreement, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by the Company or any other Person of its respective obligations under or in respect of the Notes, the Note Purchase Agreement, any Supplemental Note Purchase Agreement or any other agreement; or
(8) the failure of the Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to the Guarantor of failure of the Company or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, the Note Purchase Agreement, any Supplemental Note Purchase Agreement or any other agreement or failure to resort for payment to the Company or to any other Person or to any other guaranty or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other guaranty, the advance of additional money to the Company or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, the Note Purchase Agreement, any Supplemental Note Purchase Agreement or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any merger or consolidation of the Company or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of the Company or any other Person to any other Person, or any change in the ownership of any shares of the Company or any other Person; or
(12) any defense whatsoever that: (i) the Company or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than payment thereof in Federal or other immediately available funds, or (ii) the Company or any other Person might have to the performance or observance of any of the provisions of the Notes, the Note Purchase Agreement, any Supplemental Note Purchase Agreement or any other agreement, whether through the satisfaction or purported satisfaction by the Company or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise, other than the defense of indefeasible payment in full in cash of the Notes; or
(13) any act or failure to act with regard to the Notes, the Note Purchase Agreement, any Supplemental Note Purchase Agreement or any other agreement or anything which might vary the risk of the Guarantor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Guarantor or any other Person in respect of the obligations of the Guarantor or other Person under this Guaranty or any other agreement, other than the defense of indefeasible payment in full in cash of the Notes; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty and the parties hereto that the obligations of the Guarantor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the payment of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and all other sums due and payable under the Note Purchase Agreement and under each Supplemental Note Purchase Agreement, at the place specified in and all in the manner and with the effect provided in the Notes and the Note Purchase Agreement and each Supplemental Note Purchase Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Company shall default under or in respect of the terms of the Notes, the Note Purchase Agreement or any Supplemental Note Purchase Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Company under the Notes, the Note Purchase Agreement or any Supplemental Note Purchase Agreement, this Guaranty shall remain in full force and effect and shall apply to each and every subsequent default.
(d) All rights of any Holder may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the transfer of such Note whether with or without the consent of or notice to the Guarantor under this Guaranty or to the Company.
(e) To the extent of any payments made under this Guaranty, the Guarantor shall be subrogated to the rights of the Holder or Holders upon whose Notes such payment was made, but the Guarantor covenants and agrees that such right of subrogation shall be junior and subordinate in right of payment to the prior indefeasible final payment in cash in full of all amounts due and owing by the Company with respect to the Notes, the Note Purchase Agreement and each Supplemental Note Purchase Agreement and by the Guarantor under this Guaranty, and the Guarantor shall not take any action to enforce such right of subrogation, and the Guarantor shall not accept any payment in respect of such right of subrogation, until all amounts due and owing by the Company under or in respect of the Notes, the Note Purchase Agreement and each Supplemental Note Purchase Agreement and all amounts due and owing by the Guarantor hereunder have indefeasibly been finally paid in cash in full. If any amount shall be paid to the Guarantor in violation of the preceding sentence at any time prior to the indefeasible payment in cash in full of the Notes and all other amounts payable under the Notes, the Note Purchase Agreement, each Supplemental Note Purchase Agreement and this Guaranty, such amount shall be held in trust for the benefit of the Holders and shall forthwith be paid to the Holders to be credited and applied to the amounts due or to become due with respect to the Notes and all other amounts payable under the Note Purchase Agreement, each Supplemental Note Purchase Agreement and this Guaranty, whether matured or unmatured. The Guarantor acknowledges that it has received, or will receive, direct and indirect benefits from the financing arrangements contemplated by the Note Purchase Agreement, each Supplemental Note Purchase Agreement and that the waiver set forth in this paragraph (e) is knowingly made as a result of the receipt of such benefits.
(f) [Reserved.]
(g) The Guarantor agrees that to the extent the Company or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Guarantor’ obligations hereunder, as if said payment had not been made. The liability of the Guarantor hereunder shall not be reduced or discharged, in whole or in part, by any payment to any Holder from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(h) No Holder shall be under any obligation: (1) to marshal any assets in favor of the Guarantor or in payment of any or all of the liabilities of the Company under or in respect of the Notes or the obligations of the Guarantor hereunder or (2) to pursue any other remedy that the Guarantor may or may not be able to pursue itself and that may lighten the Guarantor�s burden, any right to which the Guarantor hereby expressly waives.
(i) The obligations of the Guarantor under this Guaranty rank pari passu in right of payment with all other Debt of the Guarantor which is not secured or which is not expressly subordinated in right of payment to any other Debt of the Guarantor.
Appears in 1 contract
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each The Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any the other Guarantor Guarantors may, without in any manner affecting the liability or obligations of any the Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligations of the Company on the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes; or
(3) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes. Each The Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such the Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.. Essex Property Trust, Inc. Parent Guaranty
(b) Each The Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every Indebtedness, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of payment by any Holder from the Company or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such the Guarantor. The obligations of each the Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
Appears in 1 contract
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that any Holder Noteholder or Holders Noteholders from time to time, with or without any further notice to or assent from any other Guarantor such Guarantor, may, without in any manner affecting the liability of any each such Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders Noteholder may deem advisable:
(1i) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtednessindebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtednessindebtedness, liability or obligations of the Company on the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or instruments and this Guaranty; or
(2ii) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder Noteholder as direct or indirect security for the payment or performance of any Indebtednessindebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtednessindebtedness, liability or obligation of the Company on the Notes; or
(3iii) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any Indebtednessindebtedness, liability or obligation of the Company on the Notes. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such each Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by law:
: (1i) notice of acceptance of this Guaranty by the Holders Noteholders or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders Noteholders upon this Guaranty (it being understood that every Indebtednessindebtedness, liability and obligation described in Section 2 hereof 1 shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
; (2ii) demand of payment by any Holder Noteholder from the Company Company, any other Guarantor or any other Person indebted in any manner on or for any of the Indebtednessindebtedness, liabilities or obligations hereby guaranteed; and
and (3iii) presentment for the payment by any Holder Noteholder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of any Holder Noteholder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of each Guarantor hereunder shall be binding upon such Guarantor and its successors and assigns, and shall remain in full force and effect irrespective of:
(i) the genuineness, validity, regularity or enforceability of the Notes, the Note Purchase Agreements or any other instruments relating thereto or any of the terms of any thereof, the continuance of any obligation on the part of the Company, any other Guarantor or any other Person on the Notes or under the Note Purchase Agreements or the power or authority or the lack of power or authority of the Company to issue the Notes or execute and deliver the Note Purchase Agreements or to perform any of its obligations thereunder or the existence or continuance of the Company, any other Guarantor or any other Person as a legal entity; or
(ii) any default, failure or delay, willful or otherwise, in the performance by the Company, any other Guarantor or any other Person of any obligations of any kind or character whatsoever of the Company, any other Guarantor or any other Person (including, without limitation, the obligations and undertakings of the Company, any other Guarantor or any other Person under the Notes or the Note Purchase Agreements); or
(iii) any creditors' rights, bankruptcy, receivership or other insolvency proceeding of the Company, any other Guarantor or any other Person or in respect of the property of the Company, any other Guarantor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation or winding up of the Company, any other Guarantor or any other Person; or
(iv) impossibility or illegality of performance on the part of the Company, any other Guarantor or any other Person of its obligations under the Notes, the Note Purchase Agreements, this Guaranty or any other instruments; or
(v) in respect of the Company, any other Guarantor or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Company, any other Guarantor or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotions, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the Company, any other Guarantor or any other Person and whether or not of the kind hereinbefore specified; or
(vi) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against any Person, or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by any Person, or against any sums payable under this Guaranty, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(vii) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by any party of its respective obligations under the Notes, the Note Purchase Agreements or any instrument relating thereto; or
(viii) the failure of any Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or
(ix) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of Default and of nonpayment, any failure to give notice to any Guarantor of failure of the Company, any other Guarantor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes or the Note Purchase Agreements or failure to resort for payment to the Company, any other Guarantor or any other Person or to any other guaranty or to any property, security, Liens or other rights or remedies; or
(x) the acceptance of any additional security or other guaranty, the advance of additional money to the Company, any other Guarantor or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes or the Note Purchase Agreements, or the sale, release, substitution or exchange of any security for the Notes; or
(xi) any defense whatsoever that the Company, any other Guarantor or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than payment in cash thereof, or to the performance or observance of any of the provisions of the Note Purchase Agreements, whether through the satisfaction or purported satisfaction by the Company, any other Guarantor or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise; or
(xii) any act or failure to act with regard to the Notes, the Note Purchase Agreements or anything which might vary the risk of any Guarantor; or
(xiii) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Guarantor in respect of the obligations of such Guarantor under this Guaranty; provided, that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty that the obligations of each Guarantor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the payment of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and all other sums due and payable under the Note Purchase Agreements, at the place specified in and all in the manner and with the effect provided in the Notes and the Note Purchase Agreements, as amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Company shall Default under the terms of the Notes or the Note Purchase Agreements and that notwithstanding recovery hereunder for or in respect of any given Default or Defaults by the Company under the Notes or the Note Purchase Agreements, this Guaranty shall remain in full force and effect and shall apply to each and every subsequent Default.
(d) Subject to the provisions of the Note Purchase Agreements, all rights of any Noteholder may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the transfer of such Note whether with or without the consent of or notice to any Guarantor under this Guaranty or the Company.
(e) To the extent of any payments made under this Guaranty, each Guarantor shall be subrogated to the rights of the Noteholder upon whose Note such payment was made, but such Guarantor covenants and agrees that such right of subrogation shall be subordinate in right of payment to the rights of any Noteholder for which full payment has not been made or provided for and, to that end, such Guarantor agrees not to claim or enforce any such right of subrogation or any right of set-off or any other right which may arise on account of any payment made by such Guarantor in accordance with the provisions of this Guaranty, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of any Noteholder or Noteholders against the Company, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Company, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right unless and until 366 days after all of the Notes and all other sums due and payable under the Note Purchase Agreements have been fully paid and discharged. If any amount shall be paid to any Guarantor in violation of the preceding sentence at any time prior to the indefeasible cash payment in full of the Notes and all other amounts payable under the Note Purchase Agreements and this Guaranty, such amounts shall be held in trust for the benefit of the Noteholders and shall forthwith be paid to the Noteholders to be credited and applied to the amounts due or to become due with respect to the Notes and all other amounts payable under the Note Purchase Agreements and this Guaranty, whether matured or unmatured. Each Guarantor acknowledges that it has received direct and indirect benefits from the financing arrangements contemplated by the Note Purchase Agreements and that the waiver set forth in this subsection is knowingly made as a result of the receipt of such benefits.
(f) Each Guarantor agrees that to the extent the Company, any other Guarantor or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, liquidator, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Guarantors' obligations hereunder, as if said payment had not been made. The liability of the Guarantors hereunder shall not be reduced or discharged, in whole or in part, by any payment to any Noteholder from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(g) No Noteholder shall be under any obligation (i) to marshal any assets in favor of any Guarantor or in payment of any or all of the liabilities of the Company under or in respect of the Notes or the obligations of any Guarantor hereunder or (ii) to pursue any other remedy that any Guarantor may or may not be able to pursue itself and that may lighten such Guarantor's burden or any right which any Guarantor hereby expressly waives.
(h) The obligations of each Guarantor with respect to the guaranty and all other obligations under this Guaranty of such Guarantor are direct and unsecured obligations of such Guarantor ranking pari passu as against the assets of such Guarantor and pari passu with all other present and future Indebtedness of such Guarantor which is not expressed to be subordinate or junior in rank to any other Indebtedness of such Guarantor (except to the extent that the foregoing is not true by virtue of, and solely by virtue of, Liens expressly permitted by the Note Purchase Agreements securing other Indebtedness).
Appears in 1 contract
Samples: Note Purchase Agreement (Insituform Technologies Inc)
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each The Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any the other Guarantor Guarantors may, without in any manner affecting the liability or obligations of any the Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligations of the Company on the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes; or
(3) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes. Each The Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such the Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each The Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every Indebtedness, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of payment by any Holder from the Company or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such the Guarantor. The obligations of each the Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
Appears in 1 contract
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any other Guarantor may, without in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any IndebtednessDebt, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligations of the Company on the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or waive this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any IndebtednessDebt, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligation of the Company on the Notes; or
(3) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligation of the Company on the Notes. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every IndebtednessDebt, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2) notice of the issuance of any Additional Notes pursuant to the Note Agreement or any Supplement thereto;
(3) demand of payment by any Holder from the Company or any other Person indebted in any manner on or for any of the IndebtednessDebt, liabilities or obligations hereby guaranteed; and
(34) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of the Guarantors hereunder shall be binding upon the Guarantors and their successors and assigns, and shall remain in full force and effect irrespective of:
(1) the genuineness, validity, regularity or enforceability of the Notes, the Note Agreement, any Supplement or any other agreement or any of the terms of any thereof, the continuance of any obligation on the part of the Company or any other Person on or in respect of the Notes or under the Note Agreement, any Supplement or any other agreement or the power or authority or the lack of power or authority of the Company to issue the Notes or the Company to execute and deliver the Note Agreement, any Supplement or any other agreement or of any Guarantor to execute and deliver this Guaranty or to perform any of its obligations hereunder or the existence or continuance of the Company or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by the Company, any Guarantor or any other Person of any obligations of any kind or character whatsoever under the Notes, the Note Agreement, any Supplement, this Guaranty or any other agreement; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of the Company, any Guarantor or any other Person or in respect of the property of the Company, any Guarantor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the Company, any Guarantor or any other Person; or
(4) impossibility or illegality of performance on the part of the Company, any Guarantor or any other Person of its obligations under the Notes, the Note Agreement, any Supplement, this Guaranty or any other agreements; or
(5) in respect of the Company or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Company or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the Company or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Debt, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against the Company, any Guarantor or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by the Company, any Guarantor or any other Person, or against any sums payable in respect of the Notes or under the Note Agreement, any Supplement or this Guaranty, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by the Company, any Guarantor or any other Person of its respective obligations under or in respect of the Notes, the Note Agreement, any Supplement, this Guaranty or any other agreement; or
(8) the failure of any Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Guarantor of failure of the Company, any Guarantor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, the Note Agreement, any Supplement, this Guaranty or any other agreement or failure to resort for payment to the Company, any Guarantor or to any other Person or to any other guaranty or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other guaranty, the advance of additional money to the Company or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, the Note Agreement, any Supplement or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) the failure to execute a Guaranty Accession Agreement in connection with the issuance of any Series of Additional Notes; or
(12) any merger or consolidation of the Company, any Guarantor or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of the Company, any Guarantor or any other Person to any other Person, or any change in the ownership of any shares of the Company, any Guarantor or any other Person; or
(13) any defense whatsoever that: (i) the Company or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than payment thereof in federal or other immediately available funds or (ii) the Company or any other Person might have to the performance or observance of any of the provisions of the Notes, the Note Agreement, any Supplement or any other agreement, whether through the satisfaction or purported satisfaction by the Company or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise; or
(14) any act or failure to act with regard to the Notes, the Note Agreement, any Supplement, this Guaranty or any other agreement or anything which might vary the risk of any Guarantor or any other Person; or
(15) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Guarantor or any other Person in respect of the obligations of any Guarantor or other Person under this Guaranty or any other agreement; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty and the parties hereto that the obligations of each Guarantor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the payment of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided, at the place specified in and all in the manner and with the effect provided in the Notes and the Note Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Company shall default under or in respect of the terms of the Notes or the Note Agreement (including any Supplement) and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Company under the Notes or the Note Agreement (including any Supplement), this Guaranty shall remain in full force and effect and shall apply to each and every subsequent default.
(d) All rights of any Holder may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the transfer of such Note whether with or without the consent of or notice to the Guarantors under this Guaranty or to the Company.
(e) To the extent of any payments made under this Guaranty, the Guarantors shall be subrogated to the rights of the Holder or Holders upon whose Notes such payment was made, but each Guarantor covenants and agrees that such right of subrogation shall be junior and subordinate in right of payment to the prior indefeasible final payment in cash in full of all amounts due and owing by the Company with respect to the Notes and the Note Agreement (including each Supplement) and by the Guarantors under this Guaranty, and the Guarantors shall not take any action to enforce such right of subrogation, and the Guarantors shall not accept any payment in respect of such right of subrogation, until all amounts due and owing by the Company under or in respect of the Notes and the Note Agreement (including each Supplement) and all amounts due and owing by the Guarantors hereunder have indefeasibly been finally paid in cash in full. If any amount shall be paid to any Guarantor in violation of the preceding sentence at any time prior to the later of the indefeasible payment in cash in full of the Notes and all other amounts payable under the Notes, the Note Agreement (including each Supplement) and this Guaranty, such amount shall be held in trust for the benefit of the Holders and shall forthwith be paid to the Holders to be credited and applied to the amounts due or to become due with respect to the Notes and all other amounts payable under the Note Agreement (including each Supplement) and this Guaranty, whether matured or unmatured.
(f) Each Guarantor agrees that to the extent the Company or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Guarantors’ obligations hereunder, as if said payment had not been made. The liability of the Guarantors hereunder shall not be reduced or discharged, in whole or in part, by any payment to any Holder from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity or fraud asserted by any account debtor or by any other Person.
(g) No Holder shall be under any obligation: (1) to marshal any assets in favor of the Guarantors or in payment of any or all of the liabilities of the Company under or in respect of the Notes or the obligations of the Guarantors hereunder or (2) to pursue any other remedy that the Guarantors may or may not be able to pursue themselves and that may lighten the Guarantors’ burden, any right to which each Guarantor hereby expressly waives.
Appears in 1 contract
Samples: Subsidiary Guaranty Agreement (Granite Construction Inc)
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any other Guarantor may, without in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtedness, liability or obligation of the Company any Obligor or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligations of the Company such Obligor on the Notes, or waive any Default or Event of Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any Indebtedness, liability or obligation of the Company an Obligor or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company such Obligor on the Notes; or
(3) settle, adjust or compromise any claim of the Company an Obligor against any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company such Obligor on the Notes. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every Indebtedness, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of payment by any Holder from the Company or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
Appears in 1 contract
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each and every default in any payment or performance of any obligation of the Lessee under any Loan Document to which the Lessee is a party shall give rise to a separate claim and cause of action hereunder to the extent that each such default by the Lessee would give rise to a separate claim or cause of action under the applicable Loan Document, and separate claims or suits may be made and brought, as the case may be, hereunder as each such default occurs.
(b) This Guaranty shall be a continuing, absolute, irrevocable and unconditional guaranty of payment and performance and not of collection and shall remain in full force and effect until each and all of the obligations of the Lessee guaranteed hereunder shall have been fully and indefeasibly discharged or performed in accordance with the terms and provisions of the Loan Documents (and no longer subject to recoupment, preference claims or clawback under applicable bankruptcy, insolvency or similar laws), and the Guarantor hereby consents shall have fully discharged or performed all of its obligations under this Guaranty to each Guaranteed Beneficiary.
(c) This Guaranty and agrees the liability of the Guarantor provided for in Section 1 hereunder shall remain in full force and effect irrespective of:
(i) the legality, validity, regularity or enforceability, or the absence of any thereof, of any Loan Document (or other document or agreement) or of any assignment, amendment, modification, or termination of any Loan Document (or other document or agreement) or any subleasing or further subleasing of the Aircraft or Spare Engines (or any interest therein or portion thereof), and shall in no way be affected or impaired by (and no notice to the Guarantor shall be required in respect of) any compromise, waiver, settlement, release, renewal, extension, indulgence, amendment, addition, deletion, change or modification with respect to, or release of any security for any of the obligations or liabilities of the Lessee under, any Loan Document or any redelivery, repossession, sale, transfer or other disposition, surrender or destruction of, or other event or circumstance with respect to, the Aircraft or Spare Engines (or any interest therein or portion thereof), in whole or part; or
(ii) the transfer, assignment, subletting, or mortgaging, or the purported transfer, assignment, subletting, or mortgaging, of all or any part of the interest of any Guaranteed Beneficiary or the Lessee in the Aircraft or Spare Engines (or any interest therein or portion thereof) in accordance with the Loan Documents; or
(iii) any absence or defect or failure of title or lack of recordation or registration with respect to any Guaranteed Beneficiary's or the Lessee's interest in the Aircraft or Spare Engines (or any interest therein or portion thereof); or
(iv) any failure of delivery of, or loss of perfection of any security interest with respect to, any portion of the Aircraft or Spare Engines (or any interest therein or portion thereof); or
(v) any matter relating to any agreement or approval (or the absence thereof) in connection with the Aircraft or Spare Engines (or any interest therein or portion thereof); or
(vi) any failure, neglect or omission on the part of any Guaranteed Beneficiary or any other Person to give the Guarantor notice of the occurrence of any Default or Lease Event of Default or Potential Event of Default or Event of Default or to realize upon any collateral held by any Guaranteed Beneficiary or any other Person with respect to any obligations or liabilities of the Lessee, or to provide for any insurance on the Aircraft or Spare Engines (or any interest therein or portion thereof), or to establish or maintain a security or other interest in the Aircraft or Spare Engines (or any interest therein or portion thereof) or any collateral provided under any Loan Document or to establish or maintain the priority or perfection of any thereof; or
(vii) any defect in the compliance with specifications, warranties or any insurance policy or the condition, design, operation or fitness for use of, or any damage to or loss or destruction of, or any interruption or cessation in the use of, the Aircraft or Spare Engines (or any interest therein or any portion thereof) by the Lessee or any other Person for any reason whatsoever (including, without limitation, any governmental prohibition or restriction, condemnation, requisition, seizure or any other act on the part of any governmental or military authority, or any act of God or of the public enemy) regardless of the duration thereof (even though such duration would otherwise constitute a frustration under any Loan Document), whether or not without fault on the part of the Lessee or any other Person; or
(viii) any merger, consolidation or other restructuring or termination of the corporate structure, reorganization or transaction with respect to the Lessee or the Guarantor into, with or in respect of, any other Person or any sale, lease, assignment or transfer of any of the assets of the Lessee or Guarantor to any other Person; or
(ix) any disposition by the Guarantor of its interest in the Lessee, or any change in the ownership of any shares of capital stock of the Guarantor or the Lessee, or any change, restructuring or termination of the corporate structure or existence of the Lessee; or
(x) the imposition of any Tax or other charge against the Lessee, the Guarantor or any other Person; or
(xi) any exchange, release or nonperfection, or lapse of perfection, of any security for any Guaranteed Obligation or the acceptance of any security therefor; or
(xii) any bankruptcy, insolvency, winding up, dissolution, liquidation, receivership, or reorganization of, or similar proceedings affecting, the Lessee or the Guarantor or its assets or any resulting release or discharge of any of the Guaranteed Obligations (except to the extent resulting from performance thereof); or
(xiii) any regulatory change or other governmental action (whether or not adverse); or
(xiv) any partial payment or performance of the Guaranteed Obligations (whether as a result of the exercise of any right, remedy, power or privilege or otherwise) that is accepted or received (except, subject to paragraph (f) of this Section 2, to the extent of such payment or performance); or
(xv) any Holder other occurrence or Holders circumstance whatsoever, whether similar or dissimilar to the foregoing, whether or not foreseeable, that might otherwise constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or that might otherwise limit recourse against the Guarantor. The obligations of the Guarantor set forth herein constitute the full recourse obligations of the Guarantor enforceable against it to the full extent of all its assets and properties.
(d) The obligation and liability of the Guarantor hereunder shall not be impaired, diminished, abated or otherwise affected (i) by any set-off, defense or counterclaim that the Lessee, the Guarantor or any other Person may have or claim to have, at any time or from time to time, with or without any further notice to (ii) by the commencement by or assent from any other against the Lessee, the Guarantor may, without in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligations of the Company on the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any proceedings under any bankruptcy or insolvency law or laws relating to the relief of debtors, readjustment of indebtedness, reorganizations, arrangements, compositions or extension or other agreement or this Guaranty; orsimilar laws.
(2e) sell, release, surrender, modify, impair, exchange or substitute any It is the intent and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes; or
(3) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and purpose hereof that the same Guarantor shall not be binding upon it, entitled to and does hereby waiveswaive, to the fullest extent permitted by applicable law, any and all defensesdefenses available to guarantors, counterclaims sureties and other secondary parties at law or offsets which it might or could have by reason thereofin equity. Without limiting the generality of the foregoing, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each the Guarantor hereby waives, to the fullest extent permitted by law:
(1) waives notice of acceptance of this Guaranty and of the nonperformance by the Holders or of the creationLessee, renewal or accrual of any liability of the Companydiligence, present or futurepresentment, or of the reliance of such Holders upon this Guaranty (it being understood that every Indebtednessprotest, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been createddishonor, contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of for payment by any Holder from the Company Lessee or any other Person indebted in and notice of nonpayment or failure to perform on the part of the Lessee and all other notices whatsoever. The guaranty hereunder is a guaranty of payment, performance and compliance and not of collectability only. The Guarantor specifically agrees that it shall not be necessary, and the Guarantor shall not be required, before or as a condition of enforcing the liability of the Guarantor under this Guaranty or requiring payment or performance of the Guaranteed Obligations by the Guarantor hereunder, or at any manner on or for time thereafter, that any of the Indebtedness, liabilities Guaranteed Beneficiaries (i) file suit or obligations hereby guaranteedproceed to obtain or assert a claim for personal judgment against any Person that may be liable for any Guaranteed Obligation; and
(3ii) presentment for make any other effort to obtain payment or performance of any Guaranteed Obligation from the payment by any Holder Lessee or any other Person that may be liable for such Guaranteed Obligation; (iii) foreclose against or seek to realize upon any security now or hereafter existing for such Guaranteed Obligation; (iv) exercise or assert any other right or remedy to which any of the Notes Guaranteed Beneficiaries is or may be entitled in connection with any Guaranteed Obligation or any security or other guaranty therefor; (v) assert or file any claim against the assets of the Lessee or any other instrument, protest thereof and notice of its dishonor Person liable for any Guaranteed Obligation; or (vi) join the Lessee or any other Person as a party to any party thereto proceeding for the enforcement of any provision of this Guaranty. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, a Lease Event of Default shall have occurred and be continuing or a Guaranteed Obligation shall otherwise arise (in either case, a "Recovery Event"), and that, notwithstanding recovery hereunder for or in respect of any such GuarantorRecovery Event, this Guaranty shall remain in force and effect and shall apply to each and every subsequent Recovery Event. The Guarantor further agrees that, without limiting the generality of this Guaranty, if any Recovery Event shall have occurred and be continuing and any Guaranteed Beneficiary (or any assignee thereof) is prevented by applicable law from exercising its remedies under any applicable Loan Document for any reason, such Guaranteed Beneficiary (or any assignee thereof) shall be entitled to receive hereunder from the Guarantor, upon demand therefor, the sums that otherwise would have been due from the Lessee had such remedies been exercised. If the Guarantor makes any payment or performs any obligation hereunder in respect of any of the obligations to be performed by the Lessee, the Guarantor shall become subrogated to the extent of each Guarantor under this Guaranty and such payment or performance to the rights of any Holder the Guaranteed Beneficiary under the relevant agreement to enforce which the Lessee is a party against the Lessee in respect of such obligations and any collateral security or guaranty held by or for the benefit of such Guaranteed Beneficiary for the payment of such obligations; provided, however, that such rights of subrogation shall not commence until such time subsequent to the end of the Term as the Lessee or the Guarantor, as the case may be, shall have paid and performed each and every Guaranteed Obligation to each Guaranteed Beneficiary and the Guarantor shall have fully performed its obligations hereunder.
(f) The guaranty hereunder shall not be deemed to have terminated and shall continue to be effective (or if terminated for any reason shall be reinstated, as the case may be), if at any time payment, or any part thereof, of any of the obligations hereunder or under any Loan Document is rescinded and must be (and actually is) returned by any proceedingsGuaranteed Beneficiary to the Person who made the payment or on behalf of whom the payment was made upon the insolvency, whether by action at lawbankruptcy or reorganization (or similar event) with respect to the Lessee, suit in equity the Guarantor or otherwise, shall all as though such payment had not be subject been made.
(g) If the Guarantor fails to pay any amount hereunder when due to any reductionGuaranteed Beneficiary, limitationthe Guarantor shall pay to such Guaranteed Beneficiary interest, impairment or termination (other than by payment on demand, on such amount at the appropriate rate described in full Section 2.2D of the Notes Credit Agreement.
(h) The Guarantor further agrees to pay to each Guaranteed Beneficiary any and the obligations all costs and expenses, including reasonable legal fees (which shall include allocated costs of the Company internal counsel) and disbursements, incurred by such party in connection with enforcing its rights under the Note Purchase Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoeverthis Guaranty.
Appears in 1 contract
Samples: Guaranty (Atlas Air Inc)
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any other Guarantor may, without in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any IndebtednessDebt, liability or obligation of the Company or of any other Person (including, without limitation, any other Guarantor) secondarily or otherwise liable for any IndebtednessDebt, liability or obligations obligation of the Company on the Notes, or waive any Default or Event of Default with respect thereto, or waive, modify, amend or change any provision of the Note Purchase Agreement, any other agreement or waive this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any IndebtednessDebt, liability or obligation of the Company or of any other Person (including, without limitation, any other Guarantor) secondarily or otherwise liable for any IndebtednessDebt, liability or obligation of the Company on the Notes; or
(3) settle, adjust or compromise any claim of the Company against any other Person (including, without limitation, any other Guarantor) secondarily or otherwise liable for any IndebtednessDebt, liability or obligation of the Company on the Notes. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every IndebtednessDebt, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of payment by any Holder from the Company or any other Person (including, without limitation, any other Guarantor) indebted in any manner on or for any of the IndebtednessDebt, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of the Guarantors hereunder shall be binding upon the Guarantors and their successors and assigns, and shall remain in full force and effect irrespective of:
(1) the genuineness, validity, regularity or enforceability of the Notes, the Note Purchase Agreement, or any other agreement or any of the terms of any thereof, the continuance of any obligation on the part of the Company or any other Person on or in respect of the Notes or under the Note Purchase Agreement, or any other agreement or the power or authority or the lack of power or authority of the Company to issue the Notes or the Company to execute and deliver the Note Purchase Agreement, or any other agreement or of any Guarantor to execute and deliver this Guaranty or to perform any of its obligations hereunder or the existence or continuance of the Company or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by the Company, any Guarantor or any other Person of any obligations of any kind or character whatsoever under the Notes, the Note Purchase Agreement, this Guaranty or any other agreement; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of the Company, any Guarantor or any other Person or in respect of the property of the Company, any Guarantor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the Company, any Guarantor or any other Person; or
(4) impossibility or illegality of performance on the part of the Company, any Guarantor or any other Person of its obligations under the Notes, the Note Purchase Agreement, this Guaranty or any other agreements; or
(5) in respect of the Company or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Company or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the Company or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Debt, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against the Company, any Guarantor or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by the Company, any Guarantor or any other Person, or against any sums payable in respect of the Notes or under the Note Purchase Agreement, or this Guaranty, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by the Company, any Guarantor or any other Person of its respective obligations under or in respect of the Notes, the Note Purchase Agreement, this Guaranty or any other agreement; or
(8) the failure of any Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Guarantor of failure of the Company, any Guarantor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, the Note Purchase Agreement, this Guaranty or any other agreement or failure to resort for payment to the Company, any Guarantor or to any other Person or to any other guaranty or to any property, security, Liens or other rights or remedies; or
(10) (the acceptance of any additional security or other guaranty, the advance of additional money to the Company or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, the Note Purchase Agreement, or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any merger or consolidation of the Company, any Guarantor or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of the Company, any Guarantor or any other Person to any other Person, or any change in the ownership of any shares or other equity interests of the Company, any Guarantor or any other Person; or
(12) any defense whatsoever that: (i) the Company or any other Person might have to the payment of the Notes (including, principal or interest), other than payment thereof in Federal or other immediately available funds or (ii) the Company or any other Person might have to the performance or observance of any of the provisions of the Notes, the Note Purchase Agreement, or any other agreement, whether through the satisfaction or purported satisfaction by the Company or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise; or
(13) any act or failure to act with regard to the Notes, the Note Purchase Agreement, this Guaranty or any other agreement or anything which might vary the risk of any Guarantor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Guarantor or any other Person in respect of the obligations of any Guarantor or other Person under this Guaranty or any other agreement; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty and the parties hereto that the obligations of each Guarantor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the payment of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided, at the place specified in and all in the manner and with the effect provided in the Notes and the Note Purchase Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Company shall default under or in respect of the terms of the Notes or the Note Purchase Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Company under the Notes or the Note Purchase Agreement, this Guaranty shall remain in full force and effect and shall apply to each and every subsequent default.
(d) All rights of any Holder under this Guaranty shall be considered to be transferred or assigned at any time or from time to time upon the transfer of any Note held by such Holder whether with or without the consent of or notice to the Guarantors under this Guaranty or to the Company.
(e) To the extent of any payments made under this Guaranty, the Guarantors shall be subrogated to the rights of the Holder or Holders upon whose Notes such payment was made, but each Guarantor covenants and agrees that such right of subrogation and any and all claims of such Guarantor against the Company, any endorser or other Guarantor or against any of their respective properties shall be junior and subordinate in right of payment to the prior indefeasible final payment in cash in full of all of the Notes and satisfaction by the Company of its obligations under the Note Purchase Agreement and by the Guarantors of their obligations under this Guaranty, and the Guarantors shall not take any action to enforce such right of subrogation, and the Guarantors shall not accept any payment in respect of such right of subrogation, until all of the Notes and all amounts payable by the Guarantors hereunder have indefeasibly been finally paid in cash in full and all of the obligations of the Company under the Note Purchase Agreement and of the Guarantors under this Guaranty have been satisfied. Notwithstanding any right of any Guarantor to ask, demand, xxx for, take or receive any payment from the Company, all rights, Liens and security interests of each Guarantor, whether now or hereafter arising and howsoever existing, in any assets of the Company shall be and hereby are subordinated to the rights, if any, of the Holders in those assets. No Guarantor shall have any right to possession of any such asset or to foreclose upon any such asset, whether by judicial action or otherwise, unless and until all of the Notes and the obligations of the Company under the Note Purchase Agreement shall have been paid in cash in full and satisfied.
(f) Each Guarantor agrees that to the extent the Company or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Guarantors’ obligations hereunder, as if said payment had not been made. The liability of the Guarantors hereunder shall not be reduced or discharged, in whole or in part, by any payment to any Holder from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity or fraud asserted by any account debtor or by any other Person.
(g) No Holder shall be under any obligation: (1) to xxxxxxxx any assets in favor of the Guarantors or in payment of any or all of the liabilities of the Company under or in respect of the Notes and the Note Purchase Agreement or the obligations of the Guarantors hereunder or (2) to pursue any other remedy that the Guarantors may or may not be able to pursue themselves and that may lighten the Guarantors’ burden, any right to which each Guarantor hereby expressly waives.
Appears in 1 contract
Samples: Subsidiary Guaranty Agreement (First Investors Financial Services Group Inc)
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each The Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any other Guarantor time may, without in any manner affecting the liability of any the Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, increase, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtedness, liability or obligation of the Company Issuer or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligations of the Company Issuer on the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this GuarantyGuaranty (to the extent permitted by Section 6); or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any Indebtedness, liability or obligation of the Company Issuer or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company Issuer on the Notes; or
(3) settle, adjust or compromise any claim of the Company Issuer against any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company Issuer on the Notes. Each The Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such the Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each The Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the CompanyIssuer, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every all Indebtedness, liability liabilities and obligation obligations described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);; and
(2) demand of payment by any Holder from the Company Issuer or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such the Guarantor. The obligations of each the Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of the Guarantor hereunder shall be binding upon the Guarantor and its successors and assigns, and shall remain in full force and effect irrespective of:
(1) the genuineness, validity, regularity or enforceability of the Notes, the Note Purchase Agreement or any other agreement or any of the terms of any thereof, the continuance of any obligation on the part of the Issuer, any other guarantor or any other Person on or in respect of the Notes or under the Note Purchase Agreement or any other agreement or the power or authority or the lack of power or authority of the Issuer to issue the Notes or the Company or the Issuer to execute and deliver the Note Purchase Agreement or any other agreement or to perform any of its obligations hereunder or the existence or continuance of the Issuer or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by the Issuer or any other Person of any obligations of any kind or character whatsoever under the Notes, the Note Purchase Agreement or any other agreement; or
(3) any creditors' rights, bankruptcy, receivership or other insolvency proceeding of the the Issuer, any other guarantor or any other Person or in respect of the property of the Issuer, any other guarantor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the Issuer, any other guarantor or any other Person; or
(4) impossibility or illegality of performance on the part of the Issuer, any other guarantor or any other Person of its obligations under the Notes, the Note Purchase Agreement or any other agreements; or
(5) in respect of the Issuer, any other guarantor or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Issuer, any other guarantor or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the Issuer, any other guarantor or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, foreseen or unforeseen, and whether or not valid, incurred by or against the Issuer or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by any Person, or against any sums payable in respect of the Notes or under the Note Purchase Agreement or this Guaranty, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by the Issuer or any other Person of its respective obligations under or in respect of the Notes, the Note Purchase Agreement or any other agreement; or
(8) the failure of the Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to the Guarantor of failure of the Issuer, any other guarantor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, the Note Purchase Agreement or any other agreement or failure to resort for payment to the Issuer, any other guarantor or to any other Person or to any other guaranty or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other guaranty, the advance of additional money to the Issuer or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, the Note Purchase Agreement or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any change in the ownership of any shares or other equity interests of the Issuer, the Guarantor, any other guarantor or any other Person; or
(12) any defense whatsoever that: (i) the Issuer or any other Person might have to the payment of the Notes (principal, Make-Whole Amount, if any, or interest), other than payment thereof in Federal or other immediately available funds, or (ii) the Issuer or any other Person might have to the performance or observance of any of the provisions of the Notes, the Note Purchase Agreement or any other agreement, whether through the satisfaction or purported satisfaction by the Issuer, any other guarantor or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise; or
(13) any act or failure to act with regard to the Notes, the Note Purchase Agreement, this Guaranty or any other agreement or anything which might vary the risk of the Guarantor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Guarantor or any other Person in respect of the obligations of the Guarantor or other Person under this Guaranty or any other agreement other than the final and indefeasible payment in full in cash of the Notes; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty that the obligations of the Guarantor shall be absolute, irrevocable and unconditional and shall not be discharged, impaired or varied except by the payment of the principal of, Make-Whole Amount, if any, or any other premium, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and all other sums due and payable under the Note Purchase Agreement, at the place specified in and all in the manner and with the effect provided in the Notes and the Note Purchase Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Issuer shall default under or in respect of the terms of the Notes or the Note Purchase Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Issuer under the Notes or the Note Purchase Agreement or the guaranty obligations of the other guarantor under the Note Purchase Agreement, this Guaranty shall remain in full force and effect and shall apply to each and every subsequent default.
(d) Subject to the deemed representations by a transferee set forth in Section 14.2, all rights of any Holder hereunder may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the transfer of any Note whether with or without the consent of or notice to the Guarantors under this Guaranty or to the Company or the Issuer (except as provided in Section 14 of the Note Purchase Agreement).
(e) To the extent of any payments made under this Guaranty, the Guarantor shall be subrogated to the rights of the Holder upon whose Notes such payment was made, but the Guarantor covenants and agrees that such right of subrogation shall be subordinate in right of payment to the prior indefeasible final payment in cash in full of all amounts due and owing by the Issuer with respect to the Notes and the Note Purchase Agreement, and the Guarantor shall not take any action to enforce such right of subrogation, and the Guarantor shall not accept any payment in respect of such right of subrogation, until all amounts due and owing by the Issuer under or in respect of the Notes and the Note Purchase Agreement and all amounts due and owing by the Guarantor hereunder have indefeasibly been finally paid in cash in full. If any amount shall be paid to the Guarantor in violation of the preceding sentence at any time prior to the later of the indefeasible payment in cash in full of the Notes and all other amounts payable under the Notes and this Guaranty, such amount shall be held in trust for the benefit of the Holders and shall forthwith be paid to the Holders to be credited and applied to the amounts due or to become due with respect to the Notes and all other amounts payable under the Note Purchase Agreement and this Guaranty, whether matured or unmatured. The Guarantor acknowledges that it has received direct and indirect benefits from the financing arrangements contemplated by the Note Purchase Agreement and that the waiver set forth in this paragraph (e) is knowingly made as a result of the receipt of such benefits.
(f) The Guarantor agrees that to the extent the Issuer, any other guarantor or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Guarantor's obligations hereunder, as if said payment had not been made. The liability of the Guarantor hereunder shall not be reduced or discharged, in whole or in part, by any payment to any Holder from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(g) No Holder shall be under any obligation: (1) to xxxxxxxx any assets in favor of the Guarantor or in payment of any or all of the liabilities of the Company under or in respect of the Notes or the obligations of the Guarantor hereunder or (2) to pursue any other remedy that the Guarantor may or may not be able to pursue itself and that may lighten the Guarantor's burden, any right to which the Guarantor hereby expressly waives.
(h) The obligations of the Guarantor under this Guaranty rank pari passu in right of payment with all other Indebtedness of the Guarantor which is not secured or which is not expressly subordinated in right of payment to any other Indebtedness of the Guarantor.
Appears in 1 contract
GENERAL PROVISIONS RELATING TO THE GUARANTY. (ai) Each The Guarantor hereby consents and agrees that any Holder holder or Holders holders of Notes from time to time, with or without any further notice to or assent from any other the Guarantor may, without in any manner affecting the liability of any the Guarantor under this Guaranty, and upon such terms and conditions as any such Holder holder or Holders holders may deem advisable:
(1a) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the payment or performance or payment of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligations of the Company on the NotesGuaranteed Obligations, or waive any Default default with respect thereto, or waive, modify, amend or change any provision of the Note Agreement, the Notes or any other instrument or agreement entered into in connection therewith or this Guaranty; orotherwise relating thereto;
(2b) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder holder as direct or indirect security for the payment or performance of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the NotesGuaranteed Obligations; or
(3c) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the NotesGuaranteed Obligations. Each The Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, waives any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such the Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(bii) Each The Guarantor hereby waives, to the fullest extent permitted by law:
: (1a) notice of acceptance of this Guaranty by the Holders holders of Notes or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders holders upon this Guaranty (it being understood that every Indebtedness, liability and obligation described in Section 2 hereof all Guaranteed Obligations shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
; (2b) demand of payment by any Holder holder of Notes from the Company or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations Guaranteed Obligations hereby guaranteed; and
and (3c) presentment for the payment by any Holder holder of Notes or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such the Guarantor. The obligations of each the Guarantor under this Guaranty and the rights of any Holder holder of Notes to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-offsetoff, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(iii) The obligations of the Guarantor hereunder shall be binding upon the Guarantor and its successors and assigns, and shall remain in full force and effect irrespective of:
(a) the genuineness, validity, regularity or enforceability of the Notes, the Note Agreement, this Guaranty or any Notes or any other instrument or agreement entered into in connection therewith or otherwise relating thereto, or any of the terms of any thereof, the continuance of any obligation on the part of the Company or any other Person on the Notes or under the Note Agreement or any such other instrument or agreement, or the power or authority or the lack of power or authority of the Company to execute and deliver the Note Agreement, the Notes or any such other instrument or agreement, or to perform any of its obligations thereunder or the existence or continuance of the Company or any other Person as a legal entity;
(b) any default, failure or delay, willful or otherwise, in the performance by the Company or any other Person of any obligations of any kind or character whatsoever of the Company or any other Person (including, without limitation, the Guaranteed Obligations);
(c) any creditors' rights, bankruptcy, receivership or other insolvency proceeding of the Company or any other Person or in respect of the property of the Company or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the Company or any other Person;
(d) impossibility or illegality of performance on the part of the Company or any other Person of its obligations under the Notes, the Note Agreement, this Guaranty or any other Notes or any other instrument or agreement entered into in connection therewith or otherwise relating thereto;
(e) in respect of the Company or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Company or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the Company or any other Person and whether or not of the kind hereinbefore specified;
(f) any attachment, claim, demand, charge, lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against any Person, or any claims, demands, charges or liens of any nature, foreseen or unforeseen, incurred by any Person, or against any sums payable under this Guaranty, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided;
(g) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the payment or performance by any party of any of the Guaranteed Obligations;
(h) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to the Guarantor of failure of Company or any other Person to keep and perform any of the Guaranteed Obligations, or failure to resort for payment to the Company or to any other Person or to any other guaranty or to any property, security, Liens or other rights or remedies;
(i) the acceptance of any additional security or other guaranty, the advance of additional money to the Company or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, the Note Agreement or any other instrument or agreement entered into in connection therewith or otherwise relating thereto, or the sale, release, substitution or exchange of any security for the Notes;
(j) any defense whatsoever that the Company or any other Person might have to the payment of the Notes (principal, Yield-Maintenance Amount, if any, or interest or any other amounts due thereunder), other than payment in cash thereof, or to the payment, performance or observance of any of the other Guaranteed Obligations, whether through the satisfaction or purported satisfaction by the Company or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding up or otherwise;
(k) any act or failure to act with regard to the Notes, the Note Agreement, this Guaranty or any other instrument or agreement entered into in connection therewith or otherwise relating thereto, or anything which might vary the risk of the Guarantor; or
(l) any other circumstance (other than payment and performance in full of the Guaranteed Obligations) which might otherwise constitute a defense available to, or a discharge of, the Guarantor in respect of its obligations under this Guaranty; provided, that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty that the obligations of the Guarantor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the full and prompt payment and performance of all of the Guaranteed Obligations. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Company or any other Person shall default under the terms of the Notes, the Note Agreement or Notes or any other instrument or agreement entered into in connection therewith or otherwise relating thereto and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Company or any other Person under the Notes, the Note Agreement or any such other instrument or agreement, this Guaranty shall remain in full force and effect and shall apply to each and every subsequent default.
(iv) All rights of any holder of Notes may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the transfer of such Note whether with or without the consent of or notice to the Guarantor under this Guaranty or to the Company.
(v) The Guarantor hereby subordinates to the rights of the holders of Notes under the Note Agreement, the Notes or any other instrument or agreement entered into in connection therewith or otherwise relating thereto, and agrees to defer any assertion, until such time as the Guaranteed Obligations have been indefeasibly paid and performed in full, of any claim or other rights that it may now or hereafter acquire against the Company or any other Person that arise from the existence, payment, performance or enforcement of the Guarantor's obligations under this Guaranty, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of any holder or holders of Notes against the Company or any other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Company or any other Person, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim, remedy or right. If any amount shall be paid to the Guarantor in violation of the preceding sentence at any time prior to the payment and performance in full of all the Guaranteed Obligations, such amount shall be held in trust for the benefit of the holders of Notes and shall forthwith be paid to such holders to be credited and applied to the Guaranteed Obligations, whether matured or unmatured.
(vi) The Guarantor agrees that to the extent the Company or any other Person makes any payment on any Note or in respect of any of the other Guaranteed Obligations, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Guarantor's obligations hereunder, as if said payment had not been made. The liability of the Guarantor hereunder shall not be reduced or discharged, in whole or in part, by any payment to any holder of Notes from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(vii) The holders of Notes shall have no obligation to (a) to marshal any assets in favor of the Guarantor or in payment of any or all of the Guaranteed Obligations or (b) pursue any other remedy that the Guarantor may or may not be able to pursue itself and that may lighten the Guarantor's burden, any right to which the Guarantor hereby expressly waives.
Appears in 1 contract
Samples: Guaranty Agreement (Pulitzer Inc)
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each and every default in any payment or performance of any obligation of the Lessee under any Loan Document to which the Lessee is a party shall give rise to a separate claim and cause of action hereunder to the extent that each such default by the Lessee would give rise to a separate claim or cause of action under the applicable Loan Document, and separate claims or suits may be made and brought, as the case may be, hereunder as each such default occurs.
(b) This Guaranty shall be a continuing, absolute, irrevocable and unconditional guaranty of payment and performance and not of collection and shall remain in full force and effect until each and all of the obligations of the Lessee guaranteed hereunder shall have been fully and indefeasibly discharged or performed in accordance with the terms and provisions of the Loan Documents (and no longer subject to recoupment, preference claims or clawback under applicable bankruptcy, insolvency or similar laws), and the Guarantor hereby consents shall have fully discharged or performed all of its obligations under this Guaranty to each Guaranteed Beneficiary.
(c) This Guaranty and agrees the liability of the Guarantor provided for in Section 1 hereunder shall remain in full force and effect irrespective of:
(i) the legality, validity, regularity or enforceability, or the absence of any thereof, of any Loan Document (or other document or agreement) or of any assignment, amendment, modification, or termination of any Loan Document (or other document or agreement) or any subleasing or further subleasing of the Aircraft or Spare Engines (or any interest therein or portion thereof), and shall in no way be affected or impaired by (and no notice to the Guarantor shall be required in respect of) any compromise, waiver, settlement, release, renewal, extension, indulgence, amendment, addition, deletion, change or modification with respect to, or release of any security for any of the obligations or liabilities of the Lessee under, any Loan Document or any redelivery, repossession, sale, transfer or other disposition, surrender or destruction of, or other event or circumstance with respect to, the Aircraft or Spare Engines (or any interest therein or portion thereof), in whole or part; or
(ii) the transfer, assignment, subletting, or mortgaging, or the purported transfer, assignment, subletting, or mortgaging, of all or any part of the interest of any Guaranteed Beneficiary or the Lessee in the Aircraft or Spare Engines (or any interest therein or portion thereof) in accordance with the Loan Documents; or
(iii) any absence or defect or failure of title or lack of recordation or registration with respect to any Guaranteed Beneficiary's or the Lessee's interest in the Aircraft or Spare Engines (or any interest therein or portion thereof); or
(iv) any failure of delivery of, or loss of perfection of any security interest with respect to, any portion of the Aircraft or Spare Engines (or any interest therein or portion thereof); or
(v) any matter relating to any agreement or approval (or the absence thereof) in connection with the Aircraft or Spare Engines (or any interest therein or portion thereof); or
(vi) any failure, neglect or omission on the part of any Guaranteed Beneficiary or any other Person to give the Guarantor notice of the occurrence of any Default or Lease Event of Default or Potential Event of Default or Event of Default or to realize upon any collateral held by any Guaranteed Beneficiary or any other Person with respect to any obligations or liabilities of the Lessee, or to provide for any insurance on the Aircraft or Spare Engines (or any interest therein or portion thereof), or to establish or maintain a security or other interest in the Aircraft or Spare Engines (or any interest therein or portion thereof) or any collateral provided under any Loan Document or to establish or maintain the priority or perfection of any thereof; or
(vii) any defect in the compliance with specifications, warranties or any insurance policy or the condition, design, operation or fitness for use of, or any damage to or loss or destruction of, or any interruption or cessation in the use of, the Aircraft or Spare Engines (or any interest therein or any portion thereof) by the Lessee or any other Person for any reason whatsoever (including, without limitation, any governmental prohibition or restriction, condemnation, requisition, seizure or any other act on the part of any governmental or military authority, or any act of God or of the public enemy) regardless of the duration thereof (even though such duration would otherwise constitute a frustration under any Loan Document), whether or not without fault on the part of the Lessee or any other Person; or
(viii) any merger, consolidation or other restructuring or termination of the corporate structure, reorganization or transaction with respect to the Lessee or the Guarantor into, with or in respect of, any other Person or any sale, lease, assignment or transfer of any of the assets of the Lessee or Guarantor to any other Person; or
(ix) any disposition by the Guarantor of its interest in the Lessee, or any change in the ownership of any shares of capital stock of the Guarantor or the Lessee, or any change, restructuring or termination of the corporate structure or existence of the Lessee; or
(x) the imposition of any Tax or other charge against the Lessee, the Guarantor or any other Person; or
(xi) any exchange, release or nonperfection, or lapse of perfection, of any security for any Guaranteed Obligation or the acceptance of any security therefor; or
(xii) any bankruptcy, insolvency, winding up, dissolution, liquidation, receivership, or reorganization of, or similar proceedings affecting, the Lessee or the Guarantor or its assets or any resulting release or discharge of any of the Guaranteed Obligations (except to the extent resulting from performance thereof); or
(xiii) any regulatory change or other governmental action (whether or not adverse); or
(xiv) any partial payment or performance of the Guaranteed Obligations (whether as a result of the exercise of any right, remedy, power or privilege or otherwise) that is accepted or received (except, subject to paragraph (f) of this Section 2, to the extent of such payment or performance); or
(xv) any Holder other occurrence or Holders circumstance whatsoever, whether similar or dissimilar to the foregoing, whether or not foreseeable, that might otherwise constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or that might otherwise limit recourse against the Guarantor. The obligations of the Guarantor set forth herein constitute the full recourse obligations of the Guarantor enforceable against it to the full extent of all its assets and properties.
(d) The obligation and liability of the Guarantor hereunder shall not be impaired, diminished, abated or otherwise affected (i) by any set-off, defense or counterclaim that the Lessee, the Guarantor or any other Person may have or claim to have, at any time or from time to time, with or without any further notice to (ii) by the commencement by or assent from any other against the Lessee, the Guarantor may, without in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligations of the Company on the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any proceedings under any bankruptcy or insolvency law or laws relating to the relief of debtors, readjustment of indebtedness, reorganizations, arrangements, compositions or extension or other agreement or this Guaranty; orsimilar laws.
(2e) sell, release, surrender, modify, impair, exchange or substitute any It is the intent and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes; or
(3) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and purpose hereof that the same Guarantor shall not be binding upon it, entitled to and does hereby waiveswaive, to the fullest extent permitted by applicable law, any and all defensesdefenses available to guarantors, counterclaims sureties and other secondary parties at law or offsets which it might or could have by reason thereofin equity. Without limiting the generality of the foregoing, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each the Guarantor hereby waives, to the fullest extent permitted by law:
(1) waives notice of acceptance of this Guaranty and of the nonperformance by the Holders or of the creationLessee, renewal or accrual of any liability of the Companydiligence, present or futurepresentment, or of the reliance of such Holders upon this Guaranty (it being understood that every Indebtednessprotest, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been createddishonor, contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of for payment by any Holder from the Company Lessee or any other Person indebted in and notice of nonpayment or failure to perform on the part of the Lessee and all other notices whatsoever. The guaranty hereunder is a guaranty of payment, performance and compliance and not of collectability only. The Guarantor specifically agrees that it shall not be necessary, and the Guarantor shall not require, before or as a condition of enforcing the liability of the Guarantor under this Guaranty or requiring payment or performance of the Guaranteed Obligations by the Guarantor hereunder, or at any manner on or for time thereafter, that any of the Indebtedness, liabilities Guaranteed Beneficiaries (i) file suit or obligations hereby guaranteedproceed to obtain or assert a claim for personal judgment against any Person that may be liable for any Guaranteed Obligation; and
(3ii) presentment for make any other effort to obtain payment or performance of any Guaranteed Obligation from the payment by any Holder Lessee or any other Person that may be liable for such Guaranteed Obligation; (iii) foreclose against or seek to realize upon any security now or hereafter existing for such Guaranteed Obligation; (iv) exercise or assert any other right or remedy to which any of the Notes Guaranteed Beneficiaries is or may be entitled in connection with any Guaranteed Obligation or any security or other guaranty therefor; (v) assert or file any claim against the assets of the Lessee or any other instrument, protest thereof and notice of its dishonor Person liable for any Guaranteed Obligation; or (vi) join the Lessee or any other Person as a party to any party thereto proceeding for the enforcement of any provision of this Guaranty. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, a Lease Event of Default shall have occurred and be continuing or a Guaranteed Obligation shall otherwise arise (in either case, a "RECOVERY EVENT"), and that, notwithstanding recovery hereunder for or in respect of any such GuarantorRecovery Event, this Guaranty shall remain in force and effect and shall apply to each and every subsequent Recovery Event. The Guarantor further agrees that, without limiting the generality of this Guaranty, if any Recovery Event shall have occurred and be continuing and any Guaranteed Beneficiary (or any assignee thereof) is prevented by applicable law from exercising its remedies under any applicable Loan Document for any reason, such Guaranteed Beneficiary (or any assignee thereof) shall be entitled to receive hereunder from the Guarantor, upon demand therefor, the sums that otherwise would have been due from the Lessee had such remedies been exercised. If the Guarantor makes any payment or performs any obligation hereunder in respect of any of the obligations to be performed by the Lessee, the Guarantor shall become subrogated to the extent of each Guarantor under this Guaranty and such payment or performance to the rights of any Holder the Guaranteed Beneficiary under the relevant agreement to enforce which the Lessee is a party against the Lessee in respect of such obligations and any collateral security or guaranty held by or for the benefit of such Guaranteed Beneficiary for the payment of such obligations; PROVIDED, HOWEVER, that such rights of subrogation shall not commence until such time subsequent to the end of the Term as the Lessee or the Guarantor, as the case may be, shall have paid and performed each and every Guaranteed Obligation to each Guaranteed Beneficiary and the Guarantor shall have fully performed its obligations hereunder.
(f) The guaranty hereunder shall not be deemed to have terminated and shall continue to be effective (or if terminated for any reason shall be reinstated, as the case may be), if at any time payment, or any part thereof, of any of the obligations hereunder or under any Loan Document is rescinded and must be (and actually is) returned by any proceedingsGuaranteed Beneficiary to the Person who made the payment or on behalf of whom the payment was made upon the insolvency, whether by action at lawbankruptcy or reorganization (or similar event) with respect to the Lessee, suit in equity the Guarantor or otherwise, shall all as though such payment had not be subject been made.
(g) If the Guarantor fails to pay any amount hereunder when due to any reductionGuaranteed Beneficiary, limitationthe Guarantor shall pay to such Guaranteed Beneficiary interest, impairment or termination (other than by payment on demand, on such amount at the appropriate rate described in full Section 2.2D of the Notes Credit Agreement.
(h) The Guarantor further agrees to pay to each Guaranteed Beneficiary any and the obligations all costs and expenses, including reasonable legal fees (which shall include allocated costs of the Company internal counsel) and disbursements, incurred by such party in connection with enforcing its rights under the Note Purchase Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoeverthis Guaranty.
Appears in 1 contract
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each The Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any the other Guarantor Guarantors may, without in any manner affecting the liability or obligations of any the Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligations of the Company on the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes; or
(3) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes. Each The Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby First Potomac Realty Trust Trust Guaranty waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such the Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each The Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every Indebtedness, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of payment by any Holder from the Company or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such the Guarantor. The obligations of each the Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of the Guarantor hereunder shall be binding upon the Guarantor and its successors and assigns, and shall remain in full force and effect until the entire principal, interest and premium, if any, on the Notes and all other sums due pursuant to Section 2 shall have been paid and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including without limitation any of the following, whether or not with notice to or the consent of the Guarantor:
(1) the genuineness, validity, regularity or enforceability of the Notes, the Note Purchase Agreement or any of the terms of any thereof, the continuance of any obligation on the part of the Company, any other Guarantors or any other Person on or in respect of the Notes or under the Note Purchase Agreement or the power or authority or the lack of power or authority of the Company to issue the Notes or the Company to execute and deliver the Note Purchase Agreement or of any other Guarantors to execute and deliver this Guaranty or to perform any of its obligations hereunder or the existence or continuance of the Company, any other Guarantors or any other Person as a legal entity; or First Potomac Realty Trust Trust Guaranty
(2) any default, failure or delay, willful or otherwise, in the performance by the Company, any other Guarantor or any other Person of any obligations of any kind or character whatsoever under the Notes, the Note Purchase Agreement or this Guaranty; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of the Company, any other Guarantors or any other Person or in respect of the property of the Company, any other Guarantors or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the Company, any other Guarantors or any other Person; or
(4) impossibility or illegality of performance on the part of the Company, any other Guarantors or any other Person of its obligations under the Notes, the Note Purchase Agreement or this Guaranty; or
(5) in respect of the Company, any other Guarantors or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Company, any other Guarantors or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the Company, any other Guarantors or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against the Guarantor, the Company or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by the Company, any other Guarantor or any other Person, or against any sums payable in respect of the Notes or under the Note Purchase Agreement or this Guaranty, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by the Guarantor, the Company or any other Person of its respective obligations under or in respect of the Notes, the Note Purchase Agreement or this Guaranty; or First Potomac Realty Trust Trust Guaranty
(8) the failure of the Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to the Guarantor of failure of the Company, any other Guarantors or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, the Note Purchase Agreement or this Guaranty or failure to resort for payment to the Company, any other Guarantors or to any other Person or to any other guaranty or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other guaranty, the advance of additional money to the Company or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, the Note Purchase Agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any merger or consolidation of the Company, any other Guarantor or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of the Company, any other Guarantor or any other Person to any other Person, or any change in the ownership of any shares of the Company, any other Guarantor or any other Person; or
(12) any defense whatsoever that: (i) the Company or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than payment thereof in Federal or other immediately available funds, or (ii) the Company or any other Person might have to the performance or observance of any of the provisions of the Notes or the Note Purchase Agreement, whether through the satisfaction or purported satisfaction by the Company, any other Guarantors or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise, other than the defense of indefeasible payment in full in cash of the Notes; or
(13) any act or failure to act with regard to the Notes, the Note Purchase Agreement or this Guaranty or anything which might vary the risk of the Guarantor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Guarantor or any other Person in respect of the obligations of the Guarantor or other Person under this Guaranty or any other agreement, other than the defense of indefeasible payment in full in cash of the Notes; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty and the parties hereto that the First Potomac Realty Trust Trust Guaranty obligations of the Guarantor hereunder shall be absolute and unconditional and shall not be discharged, impaired or varied except by the payment of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and all other sums due and payable under the Note Purchase Agreement, at the place specified in and all in the manner and with the effect provided in the Notes and the Note Purchase Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Company shall default under or in respect of the terms of the Notes or the Note Purchase Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Company under the Notes or the Note Purchase Agreement, this Guaranty shall remain in full force and effect and shall apply to each and every subsequent default.
(d) All rights of any Holder may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the valid and legal transfer of any Note pursuant to the Note Purchase Agreement whether with or without the consent of or notice to the Guarantor under this Guaranty or to the Company.
(e) To the extent of any payments made under this Guaranty, the Guarantor shall be subrogated to the rights of the Holder upon whose Notes such payment was made, but the Guarantor covenants and agrees that such right of subrogation shall be subordinate in right of payment to the prior indefeasible final payment in cash in full of all amounts due and owing by the Company with respect to the Notes and the Note Purchase Agreement and by the Guarantor under this Guaranty, and the Guarantor shall not take any action to enforce such right of subrogation, and the Guarantor shall not accept any payment in respect of such right of subrogation, until all amounts due and owing by the Company under or in respect of the Notes and the Note Purchase Agreement and all amounts due and owing by the Guarantor hereunder have indefeasibly been finally paid in cash in full. If any amount shall be paid to the Guarantor in violation of the preceding sentence at any time prior to the later of the indefeasible payment in cash in full of the Notes and all other amounts payable under the Notes, the Note Purchase Agreement and this Guaranty, such amount shall be held in trust for the benefit of the Holders and shall forthwith be paid to the Holders to be credited and applied to the amounts due or to become due with respect to the Notes and all other amounts payable under the Note Purchase Agreement and this Guaranty, whether matured or unmatured. The Guarantor acknowledges that it has received direct and indirect benefits from the financing arrangements contemplated by the Note Purchase Agreement and that the waiver set forth in this paragraph (e) is knowingly made as a result of the receipt of such benefits.
(f) The Guarantor agrees that to the extent the Company, any other Guarantors or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Guarantor’s obligations hereunder, as if said payment had not been made. The liability of the Guarantor hereunder shall not be reduced or discharged, First Potomac Realty Trust Trust Guaranty in whole or in part, by any payment to any Holder from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(g) No Holder shall be under any obligation: (1) to mxxxxxxx any assets in favor of the Guarantor or in payment of any or all of the liabilities of the Company under or in respect of the Notes or the obligations of the Guarantor hereunder or (2) to pursue any other remedy that the Guarantor may or may not be able to pursue themselves and that may lighten the Guarantor’s burden, any right to which the Guarantor hereby expressly waives.
(h) The obligations of the Guarantor under this Guaranty rank pari passu in right of payment with all other Indebtedness of the Guarantor which is not secured or which is not expressly subordinated in right of payment to any other Indebtedness of the Guarantor.
Appears in 1 contract
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each The Guarantor hereby consents and agrees that any Holder Lender or Holders Lenders from time to time, with or without any further notice to or assent from the Guarantor or any other Guarantor Person may, without in any manner affecting the liability of any the Guarantor under this Guaranty, and upon such terms and conditions as any such Holder Lender or Holders Lenders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtednessindebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtednessindebtedness, liability or obligations obligation of the Company on the NotesLoans, or waive any Default default with respect thereto, or waive, modify, amend or change any provision of the Credit Agreement, any Security Document, any other agreement or waive this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder Lender as direct or indirect security for the payment or performance of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtednessindebtedness, liability or obligation of the Company on the NotesLoans; or
(3) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any Indebtednessindebtedness, liability or obligation of the Company on the NotesLoans. Each The Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such the Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each The Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders Lenders or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders Lenders upon this Guaranty (it being understood that every Indebtednessindebtedness, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of payment by any Holder Lender from the Company or any other Person indebted in any manner on or for any of the Indebtednessindebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder Lender or any other Person of the Notes Loans or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such the Guarantor. The obligations of each the Guarantor under this Guaranty and the rights of any Holder Lender to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of the Guarantor hereunder shall be binding upon the Guarantor and its successors and assigns, and shall remain in full force and effect irrespective of:
(1) the genuineness, validity, regularity or enforceability of the Credit Agreement, any Security Document or any other agreement or any of the terms of any thereof, the continuance of any obligation on the part of the Company or any other Person on or in respect of the Loans under the Credit Agreement, any Security Document or any other agreement or the power or authority or the lack of power or authority of the Company to issue the Loans or the Company to execute and deliver the Credit Agreement, any Security Document or any other agreement or of the Guarantor to execute and deliver this Guaranty or to perform any of its obligations hereunder or the existence or continuance of the Company or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by the Company, the Guarantor or any other Person of any obligations of any kind or character whatsoever under the Credit Agreement, any Security Document, this Guaranty or any other agreement; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of the Company or any other Person or in respect of the property of the Company or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the Company or any other Person; or
(4) impossibility or illegality of performance on the part of the Company, the Guarantor or any other Person of its obligations under the Credit Agreement, any Security Document, this Guaranty or any other agreements; or
(5) in respect of the Company or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Company or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the Company or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against the Company, the Guarantor or any other Person or any claims, demands, charges or liens of any nature, foreseen or unforeseen, incurred by the Company, the Guarantor or any other Person, or against any sums payable in respect of the Loans under the Credit Agreement, any Security Document or this Guaranty, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by the Company, the Guarantor or any other Person of its respective obligations under or in respect of the Credit Agreement, any Security Document, this Guaranty or any other agreement; or
(8) the failure of the Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to the Guarantor of failure of the Company, the Guarantor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Credit Agreement, any Security Document, this Guaranty or any other agreement or failure to resort for payment to the Company, the Guarantor or to any other Person or to any other guaranty or to any property, security, liens or other rights or remedies; or
(10) the acceptance of any additional security or other guaranty, the advance of additional money to the Company or any other Person, the renewal or extension of the Loans or amendments, modifications, consents or waivers with respect to the Loans, the Credit Agreement any Security Document or any other agreement, or the sale, release, substitution or exchange of any security for the Loans; or
(11) any merger or consolidation of the Company, the Guarantor or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of the Company, the Guarantor or any other Person to any other Person, or any change in the ownership of any shares or other equity interests of the Company, the Guarantor or any other Person; or
(12) any defense whatsoever that: (i) the Company or any other Person might have to the payment of the Loans (including, principal or interest), other than payment thereof in federal or other immediately available funds or (ii) the Company or any other Person might have to the performance or observance of any of the provisions of the Credit Agreement, any Security Document or any other agreement, whether through the satisfaction or purported satisfaction by the Company or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise; or
(13) any act or failure to act with regard to the Loans, the Credit Agreement, any Security Document, this Guaranty or any other agreement or anything which might vary the risk of the Guarantor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Guarantor or any other Person in respect of the obligations of the Guarantor or other Person under this Guaranty or any other agreement; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty and the parties hereto that the obligations of the Guarantor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the payment of the principal of and interest on the Loans in accordance with their respective terms whenever the same shall become due and payable as in the Credit Agreement provided, at the place specified in and all in the manner and with the effect provided in the Credit Agreement, as may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Company shall default under or in respect of the terms of the Credit Agreement or any Security Document and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Company under the Credit Agreement or any Security Document, this Guaranty shall remain in full force and effect and shall apply to each and every subsequent default.
(d) All rights of any Lender under this Guaranty shall be considered to be transferred or assigned at any time or from time to time upon the transfer of any Loan held by such Lender whether with or without the consent of or notice to the Guarantor under this Guaranty or to the Company.
(e) To the extent of any payments made under this Guaranty, the Guarantor shall be subrogated to the rights of the Lender or Lenders upon whose Loans such payment was made, but the Guarantor covenants and agrees that such right of subrogation and any and all claims of the Guarantor against the Company, any endorser or other guarantor or against any of their respective properties shall be junior and subordinate in right of payment to the prior indefeasible final payment in cash in full of all of the Loans and satisfaction by the Company of its obligations under the Credit Agreement and each Security Document and by the Guarantor of its obligations under this Guaranty, and the Guarantor shall not take any action to enforce such right of subrogation, and the Guarantor shall not accept any payment in respect of such right of subrogation, until all of the Loans and all amounts payable by the Guarantor hereunder have indefeasibly been finally paid in cash in full and all of the obligations of the Company under the Credit Agreement and each Security Document and of the Guarantor under this Guaranty have been satisfied. Notwithstanding any right of the Guarantor to ask, demand, sxx for, take or receive any payment from the Company, all rights, liens and security interests of the Guarantor, whether now or hereafter arising and howsoever existing, in any assets of the Company shall be and hereby are subordinated to the rights, if any, of the Lenders in those assets. The Guarantor shall not have any right to possession of any such asset or to foreclose upon any such asset, whether by judicial action or otherwise, unless and until all of the Loans and the obligations of the Company under the Credit Agreement and each Security Document shall have been paid in cash in full and satisfied.
(f) The Guarantor agrees that to the extent the Company or any other Person makes any payment on any Loan, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Guarantor’s obligations hereunder, as if said payment had not been made. The liability of the Guarantor hereunder shall not be reduced or discharged, in whole or in part, by any payment to any Lender from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity or fraud asserted by any account debtor or by any other Person.
(g) No Lender shall be under any obligation: (1) to marshal any assets in favor of the Guarantor or in payment of any or all of the liabilities of the Company under or in respect of the Loans, the Credit Agreement or any Security Document or the obligations of the Guarantor hereunder or (2) to pursue any other remedy that the Guarantor may or may not be able to pursue themselves and that may lighten the Guarantor’s burden, any right to which the Guarantor hereby expressly waives.
(h) If an event permitting the acceleration of the maturity of the principal amount of the Loans shall at any time have occurred and be continuing and such acceleration shall at such time be prevented or the right of any Lender to receive any payment under any Loan shall at such time be delayed or otherwise affected by reason of the pendency against the Company of a case or proceeding under a bankruptcy or insolvency law, the Guarantor agrees that, for purposes of this Guaranty and its obligations hereunder, the maturity of such principal amount shall be deemed to have been accelerated with the same effect as if the Lenders had accelerated the same in accordance with the terms of the Credit Agreement, and the Guarantor shall forthwith pay such accelerated principal of, premium, if any, and interest on the Loans and any other amounts guaranteed hereunder.
Appears in 1 contract
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each and every default in any payment or performance of any obligation of the Company under any Loan Document to which the Company is a party shall give rise to a separate claim and cause of action hereunder to the extent that each such default by the Company would give rise to a separate claim or cause of action under the applicable Loan Document, and separate claims or suits may be made and brought, as the case may be, hereunder as each such default occurs.
(b) This Guaranty shall be a continuing, absolute, irrevocable and unconditional guaranty of payment and performance and not of collection and shall remain in full force and effect until each and all of the obligations of the Company guaranteed hereunder shall have been fully and indefeasibly discharged or performed in accordance with the terms and provisions of the Loan Documents (and no longer subject to recoupment, preference claims or clawback under applicable bankruptcy, insolvency or similar laws), and the Guarantor hereby consents shall have fully discharged or performed all of its obligations under this Guaranty to each Guaranteed Beneficiary.
(c) This Guaranty and agrees the liability of the Guarantor provided for in Section 1 hereunder shall remain in full force and effect irrespective of:
(i) the legality, validity, regularity or enforceability, or the absence of any thereof, of any Loan Document (or other document or agreement) or of any assignment, amendment, modification, or termination of any Loan Document (or other document or agreement), and shall in no way be affected or impaired by (and no notice to the Guarantor shall be required in respect of) any compromise, waiver, settlement, release, renewal, extension, indulgence, amendment, addition, deletion, change or modification with respect to, or release of any security for any of the obligations or liabilities of the Company under, any Loan Document or any redelivery, repossession, sale, transfer or other disposition, surrender or destruction of, or other event or circumstance with respect to, the Financed Aircraft (or any interest therein or portion thereof), in whole or part; or
(ii) the transfer, assignment, subletting, or mortgaging, or the purported transfer, assignment, subletting, or mortgaging, of all or any part of the interest of any Guaranteed Beneficiary or the Company in the Financed Aircraft (or any interest therein or portion thereof) in accordance with the Loan Documents; or
(iii) any absence or defect or failure of title or lack of recordation or registration with respect to any Guaranteed Beneficiary's or the Company's interest in the Financed Aircraft (or any interest therein or portion thereof); or
(iv) any failure of delivery of, or loss of perfection of any security interest with respect to, any portion of the Financed Aircraft (or any interest therein or portion thereof); or
(v) any matter relating to any agreement or approval (or the absence thereof) in connection with the Financed Aircraft (or any interest therein or portion thereof); or
(vi) any failure, neglect or omission on the part of any Guaranteed Beneficiary or any other Person to give the Guarantor notice of the occurrence of any Default or Event of Default or Potential Event of Default or Event of Default or to realize upon any collateral held by any Guaranteed Beneficiary or any other Person with respect to any obligations or liabilities of the Company, or to provide for any insurance on the Financed Aircraft (or any interest therein or portion thereof), or to establish or maintain a security or other interest in the Financed Aircraft (or any interest therein or portion thereof) or any collateral provided under any Loan Document or to establish or maintain the priority or perfection of any thereof; or
(vii) any defect in the compliance with specifications, warranties or any insurance policy or the condition, design, operation or fitness for use of, or any damage to or loss or destruction of, or any interruption or cessation in the use of, the Financed Aircraft (or any interest therein or any portion thereof) by the Company or any other Person for any reason whatsoever (including, without limitation, any governmental prohibition or restriction, condemnation, requisition, seizure or any other act on the part of any governmental or military authority, or any act of God or of the public enemy) regardless of the duration thereof (even though such duration would otherwise constitute a frustration under any Loan Document), whether or not without fault on the part of the Company or any other Person; or
(viii) any merger, consolidation or other restructuring or termination of the corporate structure, reorganization or transaction with respect to the Company or the Guarantor into, with or in respect of, any other Person or any sale, lease, assignment or transfer of any of the assets of the Company or Guarantor to any other Person; or
(ix) any disposition by the Guarantor of its interest in the Company, or any change in the ownership of any shares of capital stock of the Guarantor or the Company, or any change, restructuring or termination of the corporate structure or existence of the Company; or
(x) the imposition of any Tax or other charge against the Company, the Guarantor or any other Person; or
(xi) any exchange, release or nonperfection, or lapse of perfection, of any security for any Guaranteed Obligation or the acceptance of any security therefor; or
(xii) any bankruptcy, insolvency, winding up, dissolution, liquidation, receivership, or reorganization of, or similar proceedings affecting, the Company or the Guarantor or its assets or any resulting release or discharge of any of the Guaranteed Obligations (except to the extent resulting from performance thereof); or
(xiii) any regulatory change or other governmental action (whether or not adverse); or
(xiv) any partial payment or performance of the Guaranteed Obligations (whether as a result of the exercise of any right, remedy, power or privilege or otherwise) that is accepted or received (except, subject to paragraph (f) of this Section 2, to the extent of such payment or performance); or
(xv) any Holder other occurrence or Holders circumstance whatsoever, whether similar or dissimilar to the foregoing, whether or not foreseeable, that might otherwise constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or that might otherwise limit recourse against the Guarantor. The obligations of the Guarantor set forth herein constitute the full recourse obligations of the Guarantor enforceable against it to the full extent of all its assets and properties.
(d) The obligation and liability of the Guarantor hereunder shall not be impaired, diminished, abated or otherwise affected (i) by any set-off, defense or counterclaim that the Company, the Guarantor or any other Person may have or claim to have, at any time or from time to time, with or without any further notice to (ii) by the commencement by or assent from any other against the Company, the Guarantor may, without in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligations of the Company on the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any proceedings under any bankruptcy or insolvency law or laws relating to the relief of debtors, readjustment of indebtedness, reorganizations, arrangements, compositions or extension or other agreement or this Guaranty; orsimilar laws.
(2e) sell, release, surrender, modify, impair, exchange or substitute any It is the intent and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes; or
(3) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and purpose hereof that the same Guarantor shall not be binding upon it, entitled to and does hereby waiveswaive, to the fullest extent permitted by applicable law, any and all defensesdefenses available to guarantors, counterclaims sureties and other secondary parties at law or offsets which it might or could have by reason thereofin equity. Without limiting the generality of the foregoing, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each the Guarantor hereby waives, to the fullest extent permitted by law:
(1) waives notice of acceptance of this Guaranty by the Holders or and of the creation, renewal or accrual of any liability of nonperformance by the Company, present or futurediligence, or of the reliance of such Holders upon this Guaranty (it being understood that every Indebtednesspresentment, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been createdprotest, contracted or incurred in reliance upon the execution of this Guaranty);
(2) dishonor, demand of for payment by any Holder from the Company or any other Person indebted in and notice of nonpayment or failure to perform on the part of the Company and all other notices whatsoever. The guaranty hereunder is a guaranty of payment, performance and compliance and not of collectability only. The Guarantor specifically agrees that it shall not be necessary, and the Guarantor shall not require, before or as a condition of enforcing the liability of the Guarantor under this Guaranty or requiring payment or performance of the Guaranteed Obligations by the Guarantor hereunder, or at any manner on or for time thereafter, that any of the Indebtedness, liabilities Guaranteed Beneficiaries (i) file suit or obligations hereby guaranteedproceed to obtain or assert a claim for personal judgment against any Person that may be liable for any Guaranteed Obligation; and
(3ii) presentment for make any other effort to obtain payment or performance of any Guaranteed Obligation from the payment by any Holder Company or any other Person that may be liable for such Guaranteed Obligation; (iii) foreclose against or seek to realize upon any security now or hereafter existing for such Guaranteed Obligation; (iv) exercise or assert any other right or remedy to which any of the Notes Guaranteed Beneficiaries is or may be entitled in connection with any Guaranteed Obligation or any security or other guaranty therefor; (v) assert or file any claim against the assets of the Company or any other instrument, protest thereof and notice of its dishonor Person liable for any Guaranteed Obligation; or (vi) join the Company or any other Person as a party to any party thereto proceeding for the enforcement of any provision of this Guaranty. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, a Event of Default shall have occurred and be continuing or a Guaranteed Obligation shall otherwise arise (in either case, a "RECOVERY EVENT"), and that, notwithstanding recovery hereunder for or in respect of any such GuarantorRecovery Event, this Guaranty shall remain in force and effect and shall apply to each and every subsequent Recovery Event. The Guarantor further agrees that, without limiting the generality of this Guaranty, if any Recovery Event shall have occurred and be continuing and any Guaranteed Beneficiary (or any assignee thereof) is prevented by applicable law from exercising its remedies under any applicable Loan Document for any reason, such Guaranteed Beneficiary (or any assignee thereof) shall be entitled to receive hereunder from the Guarantor, upon demand therefor, the sums that otherwise would have been due from the Company had such remedies been exercised. If the Guarantor makes any payment or performs any obligation hereunder in respect of any of the obligations to be performed by the Company, the Guarantor shall become subrogated to the extent of each Guarantor under this Guaranty and such payment or performance to the rights of any Holder the Guaranteed Beneficiary under the relevant agreement to enforce which the Company is a party against the Company in respect of such obligations and any collateral security or guaranty held by or for the benefit of such Guaranteed Beneficiary for the payment of such obligations; PROVIDED, HOWEVER, that such rights of subrogation shall not commence until such time as the Company or the Guarantor, as the case may be, shall have paid and performed each and every Guaranteed Obligation to each Guaranteed Beneficiary and the Guarantor shall have fully performed its obligations hereunder.
(f) The guaranty hereunder shall not be deemed to have terminated and shall continue to be effective (or if terminated for any reason shall be reinstated, as the case may be), if at any time payment, or any part thereof, of any of the obligations hereunder or under any Loan Document is rescinded and must be (and actually is) returned by any proceedingsGuaranteed Beneficiary to the Person who made the payment or on behalf of whom the payment was made upon the insolvency, whether by action at lawbankruptcy or reorganization (or similar event) with respect to the Company, suit in equity the Guarantor or otherwise, shall all as though such payment had not be subject been made.
(g) If the Guarantor fails to pay any amount hereunder when due to any reductionGuaranteed Beneficiary, limitationthe Guarantor shall pay to such Guaranteed Beneficiary interest, impairment or termination (other than by payment on demand, on such amount at the appropriate rate described in full Section 2.2E of the Notes Credit Agreement.
(h) The Guarantor further agrees to pay to each Guaranteed Beneficiary any and the obligations all costs and expenses, including reasonable legal fees (which shall include allocated costs of the Company internal counsel) and disbursements, incurred by such party in connection with enforcing its rights under the Note Purchase Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoeverthis Guaranty.
Appears in 1 contract
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any other Guarantor may, without in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligations of the Company on the Notes, or waive any Default or Event of Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any Indebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes; or
(3) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any Indebtedness, liability or obligation of the Company on the Notes. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every Indebtedness, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of payment by any Holder from the Company or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by indefeasible payment in full in cash of the Notes and the obligations of the Company under the Note Purchase Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
Appears in 1 contract
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each The Subsidiary Guarantor hereby consents and agrees that any Holder or Holders from time to timethe Purchasers, with or without any further notice to or assent from any other the Subsidiary Guarantor may, without in any manner affecting the liability of any Guarantor under this Guarantythe Subsidiary Guarantor, and upon such terms and conditions as any such Holder or Holders the Purchasers may deem advisable:
(1) extend in whole or in part (( by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any Indebtednessindebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtednessindebtedness, liability or obligations of the Company on the NotesObligations, or waive any Default default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this Guarantyinstruments; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit on behalf of, any such Holder the Purchasers as direct or indirect security security, if any, for the payment or performance of any Indebtednessindebtedness, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any Indebtednessindebtedness, liability or obligation of the Company on the NotesObligations; or
(3) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any Indebtednessindebtedness, liability or obligation of the Company on the NotesObligations. Each The Subsidiary Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and agrees that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, waives any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such the Subsidiary Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each The Subsidiary Guarantor hereby waives, to the fullest extent permitted by law:
: (1) notice of acceptance of this Guaranty Amended and Restated Subsidiary Guarantee Agreement by the Holders Purchasers or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders the Purchasers upon this Guaranty Amended and Restated Subsidiary Guarantee Agreement (it being understood that every Indebtedness, liability and obligation described in Section 2 hereof the Obligations shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this GuarantyAmended and Restated Subsidiary Guarantee Agreement);
; (2) demand of payment by any Holder the Purchasers from the Company or any other Person indebted in any manner on or for any of the Indebtednessindebtedness, liabilities or obligations hereby guaranteed; and
and (3) presentment for the payment by any Holder the Purchasers or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such the Subsidiary Guarantor. The obligations of each the Subsidiary Guarantor under this Guaranty Amended and Restated Subsidiary Guarantee Agreement and the rights of any Holder the Purchasers to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of the Subsidiary Guarantor hereunder shall be binding upon the Subsidiary Guarantor and its successors and assigns, and shall remain in full force and effect irrespective of:
(1) the genuineness, validity, regularity or enforceability of the Obligations, the Note Agreement or any other instruments relating thereto or any of the terms of any thereof, the continuance of any obligation on the part of the Company or any other Person on the Obligations or under the Note Agreement or the power or authority or the lack of power or authority of the Company to issue or incur the Obligations or execute and deliver the Note Agreement or the Notes or to perform any of its obligations thereunder or the existence or continuance of the Company or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by the Company or any other Person of any obligations of any kind or character whatsoever of the Company or any other Person (including, without limitation, the obligations and undertakings of the Company or any other Person under the Obligations, the Note Agreement or the Notes); or
(3) any creditors' rights, bankruptcy, receivership or other insolvency proceeding of the Company or any other Person or in respect of the property of the Company or any other Person or any merger, consolidation, reorganization, dissolution, liquidation or winding up of the Company or any other Person; or
(4) impossibility or illegality of performance on the part of the Company or any other Person of its obligations under the Obligations, the Note Agreement, the Notes or any other instruments; or
(5) in respect of the Company or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Company or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotions, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the Company or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against any Person, or any claims, demands, charges or liens of any nature, foreseen or unforeseen, incurred by any Person, or against any sums payable under this Amended and Restated Subsidiary Guarantee Agreement, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by any party of its respective obligations under the Obligations, the Note Agreement or the Notes or any instrument relating thereto; or
(8) the failure of the Subsidiary Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Amended and Restated Subsidiary Guarantee Agreement; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to the Subsidiary Guarantor of failure of the Company or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Obligations or the Note Agreement or failure to resort for payment to the Company or to any other Person or to any other guaranty or to any property, security or liens, if any, or other rights or remedies; or
(10) the acceptance of any security or other guaranty, the advance of additional money to the Company or any other Person, the renewal or extension of the Obligations or amendments, modifications, consents or waivers with respect to the Obligations or the Note Agreement, or the sale, release, substitution or exchange of any security, if any, for the Obligations or for this Amended and Restated Subsidiary Guarantee Agreement including, without limitation, the release of collateral, if any, or
(11) any defense whatsoever that the Company or any other Person might have to the payment of the Obligations, or to the performance or observance of any of the provisions of the Note Agreement, whether through the satisfaction or purported satisfaction by the Company or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise; or
(12) any act or failure to act with regard to the Obligations or the Note Agreement or anything which might vary the risk of the Subsidiary Guarantor; or
(13) any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Subsidiary Guarantor in respect of the obligations of the Subsidiary Guarantor under this Amended and Restated Subsidiary Guarantee Agreement; PROVIDED that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Amended and Restated Subsidiary Guarantee Agreement that the obligations of the Subsidiary Guarantor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the payment in full of the Obligations in accordance with their respective terms whenever the same shall become due and payable, at the place specified in and all in the manner and with the effect provided in the Notes and the Note Agreement. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Company shall default under the terms of the Notes or the Note Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Company under the Notes or the Note Agreement, this Amended and Restated Subsidiary Guarantee Agreement shall remain in full force and effect and shall apply to each and every subsequent default.
(d) To the extent of any payments made under this Amended and Restated Subsidiary Guarantee Agreement, the Subsidiary Guarantor making such payment shall be subrogated to the rights of the holders of the Obligations in respect of whose Obligations such payment was made, but the Subsidiary Guarantor covenants and agrees that such right of subrogation shall be subordinate in right of payment to the rights of any holder of the Obligations for which full payment has not been made or provided for and, to that end, the Subsidiary Guarantor agrees not to claim or enforce any such right of subrogation or any right of set-off or any other right which may arise on account of any payment made by the Subsidiary Guarantor in accordance with the provisions of this Amended and Restated Subsidiary Guarantee Agreement unless and until all of the Notes and all other Obligations have been fully paid and discharged.
(e) The Subsidiary Guarantor agrees that to the extent the Company or any other Person makes any payment on any Obligation, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Subsidiary Guarantor's obligations hereunder, as if said payment had not been made. The liability of the Subsidiary Guarantor hereunder shall not be reduced or discharged, in whole or in part, by any payment to the Purchasers from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(f) The Purchasers shall not be under any obligation (1) to marshall any assets in favor of the Subsidiary Guarantor or in payxxxx xx any or all of the liabilities of the Company under or in respect of the Obligations or the obligations of the Subsidiary Guarantor hereunder or (2) to pursue any other remedy that the Subsidiary Guarantor may or may not be able to pursue itself and that may lighten such Subsidiary Guarantor's burden, any right to which the Subsidiary Guarantor hereby expressly waives.
Appears in 1 contract
GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from any other Guarantor may, without in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time for the performance or payment of any IndebtednessDebt, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligations of the Company on the Notes, or waive any Default with respect thereto, or waive, modify, amend or change any provision of any other agreement or this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any IndebtednessDebt, liability or obligation of the Company or of any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligation of the Company on the Notes; or
(3) settle, adjust or compromise any claim of the Company against any other Person secondarily or otherwise liable for any IndebtednessDebt, liability or obligation of the Company on the Notes. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the Company, present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every IndebtednessDebt, liability and obligation described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of payment by any Holder from the Company or any other Person indebted in any manner on or for any of the IndebtednessDebt, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by payment in full of the Notes and the obligations of the Company under the Note Purchase Agreement)termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of each Guarantor hereunder shall be binding upon such Guarantor and its successors and assigns, and shall remain in full force and effect irrespective of:
(1) the genuineness, validity, regularity or enforceability of the Notes, the Note Purchase Agreements or any other agreement or any of the terms of any thereof, the continuance of any obligation on the part of the Company, any other Guarantor or any other Person on or in respect of the Notes or under the Note Purchase Agreements or any other agreement or the power or authority or the lack of power or authority of the Company to issue the Notes or the Company to execute and deliver the Note Purchase Agreements or any other agreement or of any other Guarantor to execute and deliver this Guaranty or to perform any of its obligations hereunder or the existence or continuance of the Company, any other Guarantor or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by the Company, any other Guarantor or any other Person of any obligations of any kind or character whatsoever under the Notes, the Note Purchase Agreements, this Guaranty or any other agreement; or
(3) any creditors' rights, bankruptcy, receivership or other insolvency proceeding of the Company, any other Guarantor or any other Person or in respect of the property of the Company, any other Guarantor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the Company, any other Guarantor or any other Person; or
(4) impossibility or illegality of performance on the part of the Company, any other Guarantor or any other Person of its obligations under the Notes, the Note Purchase Agreements, this Guaranty or any other agreements; or
(5) in respect of the Company, any other Guarantor or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Company, any other Guarantor or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other FORCE MAJEURE, whether or not beyond the control of the Company, any other Guarantor or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Debt, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against the Company, any Guarantor or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by any Person, or against any sums payable in respect of the Notes or under the Note Purchase Agreements or this Guaranty, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by the Company, any Guarantor or any other Person of its respective obligations under or in respect of the Notes, the Note Purchase Agreements, this Guaranty or any other agreement; or
(8) the failure of any Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Guarantor of failure of the Company, any other Guarantor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, the Note Purchase Agreements, this Guaranty or any other agreement or failure to resort for payment to the Company, any other Guarantor or to any other Person or to any other guaranty or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other guaranty, the advance of additional money to the Company (including the issuance of Additional Notes in accordance with the terms of the Note Purchase Agreements) or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, the Note Purchase Agreements or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any change in the ownership of any shares of the Company, any Guarantor or any other Person; or
(12) any defense whatsoever that: (i) the Company or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than payment thereof in Federal or other immediately available funds, or (ii) the Company or any other Person might have to the performance or observance of any of the provisions of the Notes, the Note Purchase Agreements or any other agreement, whether through the satisfaction or purported satisfaction by the Company, any other Guarantor or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise; or
(13) any act or failure to act with regard to the Notes, the Note Purchase Agreements, this Guaranty or any other agreement or anything which might vary the risk of any Guarantor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Guarantor or any other Person in respect of the obligations of any Guarantor or other Person under this Guaranty or any other agreement; PROVIDED that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty that the obligations of each Guarantor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the payment of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and all other sums due and payable under the Note Purchase Agreements at the place specified in and all in the manner and with the effect provided in the Notes and the Note Purchase Agreements, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Company shall default under or in respect of the terms of the Notes or the Note Purchase Agreements and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Company under the Notes or the Note Purchase Agreements, this Guaranty shall remain in full force and effect and shall apply to each and every subsequent default.
(d) All rights of any Holder hereunder may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the transfer of any Note whether with or without the consent of or notice to the Guarantors under this Guaranty or to the Company.
(e) To the extent of any payments made under this Guaranty, each Guarantor shall be subrogated to the rights of the Holder upon whose Notes such payment was made, but such Guarantor covenants and agrees that such right of subrogation shall be subordinate in right of payment to the prior indefeasible final payment in cash in full of all amounts due and owing by the Company with respect to the Notes and the Note Purchase Agreements and by the Guarantors under this Guaranty, and the Guarantors shall not take any action to enforce such right of subrogation, and the Guarantors shall not accept any payment in respect of such right of subrogation, until all amounts due and owing by the Company under or in respect of the Notes and the Note Purchase Agreements and all amounts due and owing by the Guarantors hereunder have indefeasibly been finally paid in cash in full. If any amount shall be paid to any Guarantor in violation of the preceding sentence at any time prior to the later of the indefeasible payment in cash in full of the Notes and all other amounts payable under the Notes, the Note Purchase Agreements and this Guaranty, such amount shall be held in trust for the benefit of the Holders and shall forthwith be paid to the Holders to be credited and applied to the amounts due or to become due with respect to the Notes and all other amounts payable under the Note Purchase Agreements and this Guaranty, whether matured or unmatured. Each Guarantor acknowledges that it has received direct and indirect benefits from the financing arrangements contemplated by the Note Purchase Agreements and that the waiver set forth in this paragraph (e) is knowingly made as a result of the receipt of such benefits.
(f) Each Guarantor agrees that to the extent the Company, any other Guarantor or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Guarantors' obligations hereunder, as if said payment had not been made. The liability of the Guarantors hereunder shall not be reduced or discharged, in whole or in part, by any payment to any Holder from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(g) No Holder shall be under any obligation: (1) to xxxxxxxx any assets in favor of the Guarantors or in payment of any or all of the liabilities of the Company under or in respect of the Notes or the obligations of the Guarantors hereunder or (2) to pursue any other remedy that the Guarantors may or may not be able to pursue themselves and that may lighten the Guarantors' burden, any right to which each Guarantor hereby expressly waives.
(h) The obligations of each Guarantor under this Guaranty rank PARI PASSU in right of payment with all other Debt of such Guarantor which is not secured or which is not expressly subordinated in right of payment to any other Debt of such Guarantor.
Appears in 1 contract
Samples: Guaranty Agreement (K2 Inc)
