Guarantor Provisions. If and to the extent that the Borrower, Holdings or any one or more of the Subsidiary Indemnitors (for the purposes of this Section 11, being individually and collectively referred to herein as "GUARANTOR") would be deemed or construed to be a guarantor or surety under applicable law with respect to its obligations hereunder, each Guarantor hereby agrees as follows: 11.1 Guarantor expressly agrees that until each and every term, covenant and condition of this Agreement is fully performed, Guarantor shall not be released by any act or event which, except for this provision of this Agreement might be deemed a legal or equitable discharge or exoneration of a surety, or because of any waiver, extension, modification, forbearance or delay or other act or omission of the Administrative Agent or any Lender or any Rate Exchanger or their failure to proceed promptly or otherwise as against the Borrower or any of the Subsidiary Indemnitors, as the case may be (individually and collectively, in its or their capacity as the entity or entities the obligations of which are guaranteed hereunder by Guarantor, the "PRINCIPAL INDEMNITOR") or Guarantor, or because of any action taken or omitted or circumstance which might vary the risk or affect the rights or remedies of Guarantor as against the Principal Indemnitor, or because of any further dealings between the Principal Indemnitor and the Administrative Agent or any Lender, whether relating to this Agreement or otherwise. Guarantor hereby expressly waives and surrenders any defense to Guarantor's liability under this Agreement based upon any of the foregoing acts, omissions, things, agreements, waivers or any of them. It is the purpose and intent of this Agreement that the obligations of Guarantor under it XVIII-6 Environmental Indemnity shall be absolute and unconditional under any and all circumstances, subject to and in accordance with the terms and conditions of this Agreement. 11.2 Each Guarantor waives: 11.2.1 all statutes of limitations as a defense to any action or proceeding brought against Guarantor by the Administrative Agent or any Lender, to the fullest extent permitted by law; 11.2.2 any right it may have to require the Administrative Agent or any Lender to proceed against the Principal Indemnitor or pursue any other remedy in the Administrative Agent or any Lender's power to pursue, it being acknowledged and agreed that the obligations of Guarantor hereunder are independent of the obligations of the Principal Indemnitor hereunder, and neither the Administrative Agent nor any Lender shall be required to make any demand upon, exercise any right to declare a default by, or proceed against, the Principal Indemnitor prior to proceeding against Guarantor to the full extent of Guarantor's obligations hereunder; 11.2.3 any defense based on any legal disability of the Principal Indemnitor and any discharge, release or limitation of the liability of the Principal Indemnitor to the Administrative Agent or any Lender, whether consensual or arising by operation of law or any bankruptcy, reorganization, receivership, insolvency, or debtor relief proceeding, or from any other cause, or any claim that Guarantor's obligations exceed or are more burdensome than those of the Principal Indemnitor; 11.2.4 all presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance of this Agreement and of the existence, creation, or incurring of new or additional indebtedness, and demands and notices of every kind; 11.2.5 any defense based on or arising out of any defense that the Principal Indemnitor may have to the payment or performance of any obligation set forth in this Agreement; 11.2.6 until all obligations under this Agreement have been paid and performed in full, all rights of subrogation and all rights to enforce any remedy that Guarantor may have against the Principal Indemnitor, all regardless of whether Guarantor may have made any payments to the Administrative Agent or any Lender or any Rate Exchanger; and 11.2.7 in the event that notwithstanding the provisions of Section 3.3, the obligations of the Principal Indemnitor, hereunder are held or deemed to be secured, any right of Guarantor to have the Collateral of the Principal Indemnitor first applied to the discharge of the Secured Obligations, and Guarantor expressly recognizes that any such Collateral is security for the Principal Indemnitor's obligations hereunder but not for Guarantor's obligations hereunder. 11.2.8 Each Guarantor assumes full responsibility for keeping informed of the financial condition and business operations of the Principal Indemnitor and all other circumstances affecting the Principal Indemnitor's ability to pay for and perform its obligations to the Indemnitees, and agrees that neither the Administrative Agent nor any Lender have a duty to disclose to Guarantor any information which the Administrative Agent or any such Lender may XVIII-7 Environmental Indemnity receive about the Principal Indemnitor's financial condition, business operations, or any other circumstances bearing on its ability to perform. 11.3 Each Guarantor jointly and severally agrees to perform and be liable for the obligations of the Principal Indemnitor hereunder. 11.4 Anything contained in this Agreement to the contrary notwithstanding, the obligations of each Guarantor under this Agreement shall be limited to a maximum aggregate amount equal to the largest amount that would not render its obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11 of the United States Code or any applicable provisions of comparable state law (collectively, the "FRAUDULENT TRANSFER LAWS"), in each case after giving effect to all other liabilities of such Guarantor, contingent or otherwise, that are relevant under the Fraudulent Transfer Laws (specifically excluding, however, any liabilities of such Guarantor (x) in respect of intercompany indebtedness to Borrower or other affiliates of Borrower to the extent that such indebtedness would be discharged in an amount equal to the amount paid by such Guarantor hereunder and (y) under any guaranty of Subordinated Indebtedness which guaranty contains a limitation as to maximum amount similar to that set forth in this Section 11.4, pursuant to which the liability of such Guarantor hereunder is included in the liabilities taken into account in determining such maximum amount) and after giving effect as assets to the value (as determined under the applicable provisions of the Fraudulent Transfer Laws) of any rights to subrogation, reimbursement, indemnification or contribution of such Guarantor pursuant to applicable law or pursuant to the terms of any agreement. 11.5 Each Guarantor under this Agreement, and each guarantor under other guaranties, if any, relating to the Credit Agreement (the "RELATED GUARANTIES") that contain a contribution provision similar to that set forth in this Section 11.4, together desire to allocate among themselves (collectively, the "CONTRIBUTING GUARANTORS"), in a fair and equitable manner, their obligations arising under this Agreement and the Related Guaranties. Accordingly, in the event any payment or distribution is made on any date by a Guarantor under this Agreement or a guarantor under a Related Guaranty, each such Guarantor or such other guarantor shall be entitled to a contribution from each of the other Contributing Guarantors in the maximum amount permitted by law so as to maximize the aggregate amount of the Guarantied Obligations paid to the Indemnitees.
Appears in 2 contracts
Samples: Credit Agreement (Integrated Defense Technologies Inc), Credit Agreement (Integrated Defense Technologies Inc)
Guarantor Provisions. If (a) Each Borrower, as joint and several primary obligor of the Obligations directly incurred by any other Borrower or by any Affiliated Borrower, authorizes Administrative Agent and Lenders, without giving notice to such Borrower or to any other Borrower or any Affiliated Borrower (to the extent that permitted hereunder or under any Affiliated Financing Document) or obtaining such Borrower's consent or any other Borrower's or Affiliated Borrower's consent (to the extent permitted hereunder or under any Affiliated Financing Document) and without affecting the liability of such Borrower for the Obligations directly incurred by the other Borrower or Affiliated Borrower, Holdings from time to time to:
(i) compromise, settle, renew, extend the time for payment, change the manner or terms of payment, liquidate, discharge the performance of, decline to enforce, or release all or any of the Obligations; grant other indulgences to any Borrower in respect thereof; or modify in any manner any documents relating to the Obligations;
(ii) declare all Obligations due and payable upon the occurrence and during the continuance of an Event of Default;
(iii) take and hold security for the performance of the Obligations of any Borrower and exchange, enforce, waive and release any such security;
(iv) release, surrender or exchange any deposits or other property securing the Obligations or on which Administrative Agent and/or any applicable Lender(s) at any time may have a Lien; release, substitute or add any one or more endorsers or guarantors of the Subsidiary Indemnitors (Obligations of any other Borrower or Affiliated Borrower or such Borrower; or compromise, settle, renew, extend the time for payment, discharge the purposes performance of, decline to enforce, or release all or any obligations of this Section 11, being individually and collectively referred to herein as "GUARANTOR") would be deemed any such endorser or construed to be a guarantor or surety under other Person who is now or may hereafter be liable on any Obligations or release, surrender or exchange any deposits or other property of any such Person;
(v) accept partial payments, apply Payments received by Administrative Agent and/or any applicable law Lender(s) from any Borrower or any Affiliated Borrower to any Obligations, in such order as Administrative Agent shall determine, in its sole discretion; and
(vi) subject to the provisions hereof, assign this Agreement in whole or in part.
(b) Each Borrower, as a primary, joint and several obligor with respect to its obligations hereunder, each Guarantor hereby agrees as follows:
11.1 Guarantor expressly agrees that until each and every term, covenant and condition of this Agreement is fully performed, Guarantor shall not be released the Obligations directly incurred by any act or event which, except for this provision of this Agreement might be deemed a legal or equitable discharge or exoneration of a surety, or because of any waiver, extension, modification, forbearance or delay or other act or omission of the Administrative Agent or any Lender or any Rate Exchanger or their failure to proceed promptly or otherwise as against the Borrower or any of the Subsidiary IndemnitorsAffiliated Borrower, as the case may be waives:
(individually and collectively, in its or their capacity as the entity or entities the obligations of which are guaranteed hereunder by Guarantor, the "PRINCIPAL INDEMNITOR"i) or Guarantor, or because of any action taken or omitted or circumstance which might vary the risk or affect the rights or remedies of Guarantor as against the Principal Indemnitor, or because of any further dealings between the Principal Indemnitor and the Administrative Agent or any Lender, whether relating to this Agreement or otherwise. Guarantor hereby expressly waives and surrenders any defense to Guarantor's liability under this Agreement based upon any legal disability or other defense of any other Borrower or any Affiliated Borrower, or by reason of the foregoing acts, omissions, things, agreements, waivers or any of them. It is the purpose and intent of this Agreement that the obligations of Guarantor under it XVIII-6 Environmental Indemnity shall be absolute and unconditional under any and all circumstances, subject to and in accordance with the terms and conditions of this Agreement.
11.2 Each Guarantor waives:
11.2.1 all statutes of limitations as a defense to any action or proceeding brought against Guarantor by the Administrative Agent or any Lender, to the fullest extent permitted by law;
11.2.2 any right it may have to require the Administrative Agent or any Lender to proceed against the Principal Indemnitor or pursue any other remedy in the Administrative Agent or any Lender's power to pursue, it being acknowledged and agreed that the obligations of Guarantor hereunder are independent of the obligations of the Principal Indemnitor hereunder, and neither the Administrative Agent nor any Lender shall be required to make any demand upon, exercise any right to declare a default by, or proceed against, the Principal Indemnitor prior to proceeding against Guarantor to the full extent of Guarantor's obligations hereunder;
11.2.3 any defense based on any legal disability of the Principal Indemnitor and any discharge, release cessation or limitation of the liability of any other Borrower or any Affiliated Borrower from any cause (other than full payment of all Obligations), including, without limitation, failure of consideration, breach of warranty, statute of frauds, statute of limitations, accord and satisfaction, and usury;
(ii) any defense based upon any legal disability or other defense of any other guarantor or other Person;
(iii) any defense based upon any lack of authority of the Principal Indemnitor officers, directors, partners or agents acting or purporting to act on behalf of any other Borrower or Affiliated Borrower or any principal of any other Borrower or Affiliated Borrower or any defect in the formation of any other Borrower or Affiliated Borrower or any principal of any other Borrower or Affiliated Borrower;
(iv) any defense based upon the application by any other Borrower or Affiliated Borrower of the proceeds of the credit facilities or the loans under the Affiliated Financing Documents for purposes other than the purposes represented by such other Borrower or Affiliated Borrower to Administrative Agent and Lenders or any Lender, whether consensual intended or arising understood by operation of law Administrative Agent and Lenders or any bankruptcy, reorganization, receivership, insolvency, or debtor relief proceeding, or from any other cause, or any claim that Guarantor's obligations exceed or are more burdensome than those of the Principal Indemnitorsuch Borrower;
11.2.4 all presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance of this Agreement and of the existence, creation, or incurring of new or additional indebtedness, and demands and notices of every kind;
11.2.5 (v) any defense based on such Borrower's rights, under statute or arising out otherwise, to require Administrative Agent and/or any applicable Lender(s) to xxx any other Borrower or Affiliated Borrower or otherwise to exhaust its rights and remedies against any other Borrower or Affiliated Borrower or any other Person or against any collateral before seeking to enforce its right to require such Borrower to satisfy the Obligations of any other Borrower or Affiliated Borrower;
(vi) any defense that the Principal Indemnitor may have based on Administrative Agent's or any Lender's failure at any time to the payment or require strict performance by any Borrower of any obligation set forth in this Agreement;
11.2.6 until all obligations under this Agreement have been paid and performed in full, all rights provision of subrogation and all rights to enforce the Financing Documents or by any remedy that Guarantor may have against the Principal Indemnitor, all regardless Affiliated Borrower of whether Guarantor may have made any payments to the Administrative Agent or any Lender or any Rate Exchanger; and
11.2.7 in the event that notwithstanding the provisions of Section 3.3the Affiliated Financing Documents. Such Borrower agrees that no such failure shall waive, the obligations of the Principal Indemnitor, hereunder are held alter or deemed to be secured, diminish any right of Guarantor Administrative Agent and/or any applicable Lender(s) thereafter to have demand strict compliance and performance therewith. Nothing contained herein shall prevent Administrative Agent and/or any applicable Lender(s) from foreclosing on any Lien, or exercising any rights available to Administrative Agent and/or any applicable Lender(s) thereunder, and the Collateral exercise of the Principal Indemnitor first applied to the any such rights shall not constitute a legal or equitable discharge of such Borrower;
(vii) any defense arising from any act or omission of Administrative Agent and/or any applicable Lender(s) which changes the Secured scope of such Borrower's risks hereunder, but the foregoing shall not limit any Credit Party from asserting claims based on breaches of this Agreement or willful misconduct by Administrative Agent and/or any applicable Lender;
(viii) any defense based upon Administrative Agent's or any Lender's election of any remedy against such Borrower or any other Borrower or Affiliated Borrower or any of them; any defense based on the order in which Administrative Agent and/or any Lender(s) enforces its remedies;
(ix) any defense based on (A) Administrative Agent's or any applicable Lender's surrender, release, exchange, substitution, dealing with or taking any additional collateral, (B) Administrative Agent's or any applicable Lender's abstaining from taking advantage of or realizing upon any Lien or other Guarantee, and (C) any impairment of collateral securing the Obligations, and Guarantor expressly recognizes that including, without limitation, Administrative Agent's or any applicable Lender's failure to perfect or maintain a Lien in such Collateral is security for the Principal Indemnitorcollateral;
(x) any defense based upon Administrative Agent's obligations hereunder but not for Guarantoror any Lender's obligations hereunder.
11.2.8 Each Guarantor assumes full responsibility for keeping informed of the financial condition and business operations of the Principal Indemnitor and all other circumstances affecting the Principal Indemnitor's ability to pay for and perform its obligations to the Indemnitees, and agrees that neither the Administrative Agent nor any Lender have a duty failure to disclose to Guarantor such Borrower any information which the Administrative Agent concerning any other Borrower's or any such Lender may XVIII-7 Environmental Indemnity receive about the Principal IndemnitorAffiliated Borrower's financial condition, business operations, condition or any other circumstances bearing on its any other Borrower's or Affiliated Borrower's ability to perform.pay the Obligations;
11.3 Each Guarantor jointly and severally agrees to perform and (xi) any defense based upon any statute or rule of law which provides that the obligation of a surety must be liable for neither larger in amount nor in any other respects more burdensome than that of a principal;
(xii) any defense based upon Administrative Agent's and/or any Lender's election, in any proceeding instituted under the obligations Bankruptcy Code, of the Principal Indemnitor application of Bankruptcy Code §1111(b)(2) or any successor statute;
(xiii) any defense based upon any borrowing or any grant of a security interest under Bankruptcy Code §364;
(xiv) any defense based on Administrative Agent's and/or any Lender's failure to be diligent or to satisfy any other standard imposed on a secured party, in exercising rights with respect to collateral securing the Obligations;
(xv) except as otherwise expressly set forth herein: notice of acceptance hereof; notice of the existence, creation or acquisition of any Obligation; notice of any Event of Default; notice of the amount of the Obligations outstanding from time to time; notice of any other fact which might increase such Borrower's risk; diligence; presentment; demand of payment; protest; filing of claims with a court in the event of any other Borrower's receivership or bankruptcy and all other notices and demands to which such Borrower might otherwise be entitled (and agrees the same shall not have to be made on the other Borrower as a condition precedent to such Borrower's obligations hereunder.);
11.4 Anything contained (xvi) any defense based on errors and omissions by Administrative Agent and/or any Lender in connection with its administration of the credit facilities or the loans made under the Affiliated Financing Documents, but the foregoing shall not limit any Credit Party from asserting claims based on breaches of this Agreement or willful misconduct by Administrative Agent and/or any applicable Lender;
(xvii) any defense based on application of fraudulent conveyance or transfer law or shareholder distribution law to any of the Obligations or the security therefor;
(xviii) any defense based on Administrative Agent's and/or any Lender's failure to seek relief from stay or adequate protection in any other Borrower's or Affiliated Borrower's bankruptcy proceeding or any other act or omission by Administrative Agent and/or any Lender which impairs such Borrower's prospective subrogation rights;
(xix) any defense based on legal prohibition of Administrative Agent's and/or any Lender's acceleration of the maturity of the Obligations during the occurrence of an Event of Default or any other legal prohibition on enforcement of any other right or remedy of Administrative Agent and/or any Lender with respect to the contrary notwithstanding, Obligations and the obligations of each Guarantor under this Agreement shall be limited security therefor;
(xx) any defense available to a maximum aggregate amount equal to surety under applicable law; and
(xxi) the largest amount that would not render its obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 benefit of Title 11 any statute of the United States Code or any applicable provisions of comparable state law (collectively, the "FRAUDULENT TRANSFER LAWS"), in each case after giving effect to all other liabilities of such Guarantor, contingent or otherwise, that are relevant under the Fraudulent Transfer Laws (specifically excluding, however, any liabilities of such Guarantor (x) in respect of intercompany indebtedness to Borrower or other affiliates of Borrower to the extent that such indebtedness would be discharged in an amount equal to the amount paid by such Guarantor hereunder and (y) under any guaranty of Subordinated Indebtedness which guaranty contains a limitation as to maximum amount similar to that set forth in this Section 11.4, pursuant to which limitations affecting the liability of such Guarantor Borrower hereunder or the enforcement hereof.
(c) Each Borrower further agrees that its obligations hereunder shall not be impaired in any manner whatsoever by any bankruptcy, extensions, moratoria or other relief granted to any other Borrower or Affiliated Borrower pursuant to any statute presently in force or hereafter enacted.
(d) Each Borrower authorizes Administrative Agent and each Lender to exercise, in its sole discretion, any right, remedy or combination thereof which may then be available to Administrative Agent or such Lender, since it is included in such Borrower's intent that the liabilities taken into account in determining Obligations be absolute, independent and unconditional obligations of such maximum amount) and after giving effect as assets Borrower under all circumstances. Notwithstanding any foreclosure of any Lien with respect to any or all of any property securing the value (as determined under Obligations, whether by the applicable provisions exercise of the Fraudulent Transfer Laws) power of sale contained therein, by an action for judicial foreclosure or by an acceptance of a deed in lieu of foreclosure, each Borrower shall remain bound under such Borrower's Guarantee of the Obligations directly incurred by any rights to subrogation, reimbursement, indemnification other Borrower or contribution of such Guarantor pursuant to applicable law or pursuant to the terms of any agreementAffiliated Borrower.
11.5 Each Guarantor under this Agreement, (e) This Agreement is a primary and each guarantor under other guaranties, if any, relating to the Credit Agreement (the "RELATED GUARANTIES") that contain a contribution provision similar to that set forth in this Section 11.4, together desire to allocate among themselves (collectively, the "CONTRIBUTING GUARANTORS"), in a fair and equitable manner, their obligations arising under this Agreement and the Related Guaranties. Accordingly, in the event any payment or distribution is made on any date by a Guarantor under this Agreement or a guarantor under a Related Guaranty, each such Guarantor or such other guarantor shall be entitled to a contribution from original obligation of each of the other Contributing Guarantors in the maximum amount permitted by law so as to maximize the aggregate amount Borrowers and each of the Guarantied Borrowers shall be liable for all existing and future Obligations paid to the Indemniteesof any other Borrower or Affiliated Borrower as fully as if such Obligations were directly incurred by such Borrower.
Appears in 1 contract
Samples: Credit and Security Agreement (American Retirement Corp)
Guarantor Provisions. If and to the extent that the Borrower, Holdings Borrower or any one or more of the Subsidiary Indemnitors Indemnitor (for the purposes of this Section 1110, being individually and collectively referred to herein as "GUARANTOR"“Guarantor”) would be deemed or construed to be a guarantor or surety under applicable law with respect to its obligations hereunder, each Guarantor hereby agrees as follows:
11.1 10.1 Guarantor expressly agrees that until each and every term, covenant and condition of this Agreement is fully performed, Guarantor shall not be released by any act or event which, except for this provision of this Agreement might be deemed a legal or equitable discharge or exoneration of a surety, or because of any waiver, extension, modification, forbearance or delay or other act or omission of the Administrative Agent or Agent, any Lender or any Rate Exchanger Hedge Provider or their failure to proceed promptly or otherwise as against the Borrower or any of the Subsidiary IndemnitorsIndemnitor, as the case may be (individually and collectively, in its or their capacity as the entity or entities the obligations of which are guaranteed hereunder by Guarantor, the "PRINCIPAL INDEMNITOR"“Principal Indemnitor”) or Guarantor, or because of any action taken or omitted or circumstance which might vary the risk or affect the rights or remedies of Guarantor as against the Principal Indemnitor, or because of any further dealings between the Principal Indemnitor and the Administrative Agent or any LenderLender or any Hedge Provider, whether relating to this Agreement or otherwise. Guarantor hereby expressly waives and surrenders any defense to Guarantor's ’s liability under this Agreement based upon any of the foregoing acts, omissions, things, agreements, waivers or any of them. It is the purpose and intent of this Agreement that the obligations of Guarantor under it XVIII-6 Environmental Indemnity shall be absolute and unconditional under any and all circumstances, subject to and in accordance with the terms and conditions of this Agreement.
11.2 Each Guarantor waives:
11.2.1 all statutes of limitations as a defense to any action or proceeding brought against Guarantor by the Administrative Agent or any Lender, to the fullest extent permitted by law;
11.2.2 any right it may have to require the Administrative Agent or any Lender to proceed against the Principal Indemnitor or pursue any other remedy in the Administrative Agent or any Lender's power to pursue, it being acknowledged and agreed that the obligations of Guarantor hereunder are independent of the obligations of the Principal Indemnitor hereunder, and neither the Administrative Agent nor any Lender shall be required to make any demand upon, exercise any right to declare a default by, or proceed against, the Principal Indemnitor prior to proceeding against Guarantor to the full extent of Guarantor's obligations hereunder;
11.2.3 any defense based on any legal disability of the Principal Indemnitor and any discharge, release or limitation of the liability of the Principal Indemnitor to the Administrative Agent or any Lender, whether consensual or arising by operation of law or any bankruptcy, reorganization, receivership, insolvency, or debtor relief proceeding, or from any other cause, or any claim that Guarantor's obligations exceed or are more burdensome than those of the Principal Indemnitor;
11.2.4 all presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance of this Agreement and of the existence, creation, or incurring of new or additional indebtedness, and demands and notices of every kind;
11.2.5 any defense based on or arising out of any defense that the Principal Indemnitor may have to the payment or performance of any obligation set forth in this Agreement;
11.2.6 until all obligations under this Agreement have been paid and performed in full, all rights of subrogation and all rights to enforce any remedy that Guarantor may have against the Principal Indemnitor, all regardless of whether Guarantor may have made any payments to the Administrative Agent or any Lender or any Rate Exchanger; and
11.2.7 in the event that notwithstanding the provisions of Section 3.3, the obligations of the Principal Indemnitor, hereunder are held or deemed to be secured, any right of Guarantor to have the Collateral of the Principal Indemnitor first applied to the discharge of the Secured Obligations, and Guarantor expressly recognizes that any such Collateral is security for the Principal Indemnitor's obligations hereunder but not for Guarantor's obligations hereunder.
11.2.8 Each Guarantor assumes full responsibility for keeping informed of the financial condition and business operations of the Principal Indemnitor and all other circumstances affecting the Principal Indemnitor's ability to pay for and perform its obligations to the Indemnitees, and agrees that neither the Administrative Agent nor any Lender have a duty to disclose to Guarantor any information which the Administrative Agent or any such Lender may XVIII-7 Environmental Indemnity receive about the Principal Indemnitor's financial condition, business operations, or any other circumstances bearing on its ability to perform.
11.3 Each Guarantor jointly and severally agrees to perform and be liable for the obligations of the Principal Indemnitor hereunder.
11.4 Anything contained in this Agreement to the contrary notwithstanding, the obligations of each Guarantor under this Agreement shall be limited to a maximum aggregate amount equal to the largest amount that would not render its obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11 of the United States Code or any applicable provisions of comparable state law (collectively, the "FRAUDULENT TRANSFER LAWS"), in each case after giving effect to all other liabilities of such Guarantor, contingent or otherwise, that are relevant under the Fraudulent Transfer Laws (specifically excluding, however, any liabilities of such Guarantor (x) in respect of intercompany indebtedness to Borrower or other affiliates of Borrower to the extent that such indebtedness would be discharged in an amount equal to the amount paid by such Guarantor hereunder and (y) under any guaranty of Subordinated Indebtedness which guaranty contains a limitation as to maximum amount similar to that set forth in this Section 11.4, pursuant to which the liability of such Guarantor hereunder is included in the liabilities taken into account in determining such maximum amount) and after giving effect as assets to the value (as determined under the applicable provisions of the Fraudulent Transfer Laws) of any rights to subrogation, reimbursement, indemnification or contribution of such Guarantor pursuant to applicable law or pursuant to the terms of any agreement.
11.5 Each Guarantor under this Agreement, and each guarantor under other guaranties, if any, relating to the Credit Agreement (the "RELATED GUARANTIES") that contain a contribution provision similar to that set forth in this Section 11.4, together desire to allocate among themselves (collectively, the "CONTRIBUTING GUARANTORS"), in a fair and equitable manner, their obligations arising under this Agreement and the Related Guaranties. Accordingly, in the event any payment or distribution is made on any date by a Guarantor under this Agreement or a guarantor under a Related Guaranty, each such Guarantor or such other guarantor shall be entitled to a contribution from each of the other Contributing Guarantors in the maximum amount permitted by law so as to maximize the aggregate amount of the Guarantied Obligations paid to the Indemnitees.
Appears in 1 contract
Guarantor Provisions. If (a) Each Borrower, as joint and several primary obligor of the Obligations directly incurred by any other Borrower, authorizes Administrative Agent and Lenders, without giving notice to such Borrower or to any other Borrower (to the extent that permitted hereunder) or obtaining such Borrower's consent or any other Borrower's consent (to the extent permitted hereunder) and without affecting the liability of such Borrower for the Obligations directly incurred by the other Borrower, Holdings from time to time to:
(i) compromise, settle, renew, extend the time for payment, change the manner or terms of payment, discharge the performance of, decline to enforce, or release all or any of the Obligations; grant other indulgences to any Borrower in respect thereof; or modify in any manner any documents relating to the Obligations;
(ii) declare all Obligations due and payable upon the occurrence and during the continuance of an Event of Default;
(iii) take and hold security for the performance of the Obligations of any Borrower and exchange, enforce, waive and release any such security;
(iv) apply and reapply such security and direct the order or manner of sale thereof as Administrative Agent and/or any applicable Lender(s), in its sole discretion, may determine;
(v) release, surrender or exchange any deposits or other property securing the Obligations or on which Administrative Agent and/or any applicable Lender(s) at any time may have a Lien; release, substitute or add any one or more endorsers or guarantors of the Subsidiary Indemnitors (Obligations of any other Borrower or such Borrower; or compromise, settle, renew, extend the time for payment, discharge the purposes performance of, decline to enforce, or release all or any obligations of this Section 11, being individually and collectively referred to herein as "GUARANTOR") would be deemed any such endorser or construed to be a guarantor or surety under other Person who is now or may hereafter be liable on any Obligations or release, surrender or exchange any deposits or other property of any such Person;
(vi) apply payments received by Administrative Agent and/or any applicable law Lender(s) from any Borrower to any Obligations, in such order as Administrative Agent shall determine, in its sole discretion; and
(vii) assign this Agreement in whole or in part.
(b) Each Borrower, as a primary, joint and several obligor with respect to its obligations hereunderthe Obligations directly incurred by any other Borrower, each Guarantor hereby agrees as followswaives:
11.1 Guarantor expressly agrees that until each and every term, covenant and condition of this Agreement is fully performed, Guarantor shall not be released by any act or event which, except for this provision of this Agreement might be deemed a legal or equitable discharge or exoneration of a surety, or because of any waiver, extension, modification, forbearance or delay or other act or omission of the Administrative Agent or any Lender or any Rate Exchanger or their failure to proceed promptly or otherwise as against the Borrower or any of the Subsidiary Indemnitors, as the case may be (individually and collectively, in its or their capacity as the entity or entities the obligations of which are guaranteed hereunder by Guarantor, the "PRINCIPAL INDEMNITOR"i) or Guarantor, or because of any action taken or omitted or circumstance which might vary the risk or affect the rights or remedies of Guarantor as against the Principal Indemnitor, or because of any further dealings between the Principal Indemnitor and the Administrative Agent or any Lender, whether relating to this Agreement or otherwise. Guarantor hereby expressly waives and surrenders any defense to Guarantor's liability under this Agreement based upon any legal disability or other defense of any other Borrower, or by reason of the foregoing acts, omissions, things, agreements, waivers or any of them. It is the purpose and intent of this Agreement that the obligations of Guarantor under it XVIII-6 Environmental Indemnity shall be absolute and unconditional under any and all circumstances, subject to and in accordance with the terms and conditions of this Agreement.
11.2 Each Guarantor waives:
11.2.1 all statutes of limitations as a defense to any action or proceeding brought against Guarantor by the Administrative Agent or any Lender, to the fullest extent permitted by law;
11.2.2 any right it may have to require the Administrative Agent or any Lender to proceed against the Principal Indemnitor or pursue any other remedy in the Administrative Agent or any Lender's power to pursue, it being acknowledged and agreed that the obligations of Guarantor hereunder are independent of the obligations of the Principal Indemnitor hereunder, and neither the Administrative Agent nor any Lender shall be required to make any demand upon, exercise any right to declare a default by, or proceed against, the Principal Indemnitor prior to proceeding against Guarantor to the full extent of Guarantor's obligations hereunder;
11.2.3 any defense based on any legal disability of the Principal Indemnitor and any discharge, release cessation or limitation of the liability of any other Borrower from any cause (other than full payment of all Obligations), including, without limitation, failure of consideration, breach of warranty, statute of frauds, statute of limitations, accord and satisfaction, and usury;
(ii) any defense based upon any legal disability or other defense of any other guarantor or other Person;
(iii) any defense based upon any lack of authority of the Principal Indemnitor officers, directors, partners or agents acting or purporting to act on behalf of any other Borrower or any principal of any other Borrower or any defect in the formation of any other Borrower or any principal of any other Borrower;
(iv) any defense based upon the application by any other Borrower of the proceeds of the credit facilities for purposes other than the purposes represented by such other Borrower to Administrative Agent and Lenders or any Lender, whether consensual intended or arising understood by operation of law Administrative Agent and Lenders or any bankruptcy, reorganization, receivership, insolvency, or debtor relief proceeding, or from any other cause, or any claim that Guarantor's obligations exceed or are more burdensome than those of the Principal Indemnitorsuch Borrower;
11.2.4 all presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance of this Agreement and of the existence, creation, or incurring of new or additional indebtedness, and demands and notices of every kind;
11.2.5 (v) any defense based on such Borrower's rights, under statute or arising out otherwise, to require Administrative Agent and/or any applicable Lender(s) to sue any other Borrower or otherwise to exhaust its rights and remedixx against any other Borrower or any other Person or against any collateral before seeking to enforce its right to require such Borrower to satisfy the Obligations of any other Borrower;
(vi) any defense that the Principal Indemnitor may have based on Administrative Agent's or any Lender's failure at any time to the payment or require strict performance by any Borrower of any obligation set forth in this Agreement;
11.2.6 until all obligations under this Agreement have been paid and performed in full, all rights of subrogation and all rights to enforce any remedy that Guarantor may have against the Principal Indemnitor, all regardless of whether Guarantor may have made any payments to the Administrative Agent or any Lender or any Rate Exchanger; and
11.2.7 in the event that notwithstanding the provisions of Section 3.3, the obligations provision of the Principal IndemnitorFinancing Documents. Such Borrower agrees that no such failure shall waive, hereunder are held alter or deemed to be secured, diminish any right of Guarantor Administrative Agent and/or any applicable Lender(s) thereafter to have demand strict compliance and performance therewith. Nothing contained herein shall prevent Administrative Agent and/or any applicable Lender(s) from foreclosing on any Lien, or exercising any rights available to Administrative Agent and/or any applicable Lender(s) thereunder, and the Collateral exercise of the Principal Indemnitor first applied to the any such rights shall not constitute a legal or equitable discharge of such Borrower;
(vii) any defense arising from any act or omission of Administrative Agent and/or any applicable Lender(s) which changes the Secured scope of such Borrower's risks hereunder;
(viii) any defense based upon Administrative Agent's or any Lender's election of any remedy against such Borrower or any other Borrower or any of them; any defense based on the order in which Administrative Agent and/or any Lender(s) enforces its remedies;
(ix) any defense based on (A) Administrative Agent's or any applicable Lender's surrender, release, exchange, substitution, dealing with or taking any additional collateral, (B) Administrative Agent's or any applicable Lender's abstaining from taking advantage of or realizing upon any Lien or other Guarantee, and (C) any impairment of collateral securing the Obligations, and Guarantor expressly recognizes that including, without limitation, Administrative Agent's or any applicable Lender's failure to perfect or maintain a Lien in such Collateral is security for the Principal Indemnitorcollateral;
(x) any defense based upon Administrative Agent's obligations hereunder but not for Guarantoror any Lender's obligations hereunder.
11.2.8 Each Guarantor assumes full responsibility for keeping informed of the financial condition and business operations of the Principal Indemnitor and all other circumstances affecting the Principal Indemnitor's ability to pay for and perform its obligations to the Indemnitees, and agrees that neither the Administrative Agent nor any Lender have a duty failure to disclose to Guarantor such Borrower any information which the Administrative Agent or concerning any such Lender may XVIII-7 Environmental Indemnity receive about the Principal Indemnitorother Borrower's financial condition, business operations, condition or any other circumstances bearing on its any other Borrower's ability to perform.pay the Obligations;
11.3 Each Guarantor jointly and severally agrees to perform and (xi) any defense based upon any statute or rule of law which provides that the obligation of a surety must be liable for neither larger in amount nor in any other respects more burdensome than that of a principal;
(xii) any defense based upon Administrative Agent's and/or any Lender's election, in any proceeding instituted under the obligations Bankruptcy Code, of the Principal Indemnitor application of Bankruptcy Code Section 1111(b)(2) or any successor statute;
(xiii) any defense based upon any borrowing or any grant of a security interest under Bankruptcy Code Section 364;
(xiv) any defense based on Administrative Agent's and/or any Lender's failure to be diligent or to satisfy any other standard imposed on a secured party, in exercising rights with respect to collateral securing the Obligations;
(xv) except as otherwise expressly set forth herein: notice of acceptance hereof; notice of the existence, creation or acquisition of any Obligation; notice of any Event of Default; notice of the amount of the Obligations outstanding from time to time; notice of any other fact which might increase such Borrower's risk; diligence; presentment; demand of payment; protest; filing of claims with a court in the event of any other Borrower's receivership or bankruptcy and all other notices and demands to which such Borrower might otherwise be entitled (and agrees the same shall not have to be made on the other Borrower as a condition precedent to such Borrower's obligations hereunder.);
11.4 Anything contained (xvi) any defense based on errors and omissions by Administrative Agent and/or any Lender in this Agreement connection with its administration of the credit facilities;
(xvii) any defense based on application of fraudulent conveyance or transfer law or shareholder distribution law to any of the Obligations or the security therefor;
(xviii) any defense based on Administrative Agent's and/or any Lender's failure to seek relief from stay or adequate protection in any other Borrower's bankruptcy proceeding or any other act or omission by Administrative Agent and/or any Lender which impairs such Borrower's prospective subrogation rights;
(xix) any defense based on legal prohibition of Administrative Agent's and/or any Lender's acceleration of the maturity of the Obligations during the occurrence of an Event of Default or any other legal prohibition on enforcement of any other right or remedy of Administrative Agent and/or any Lender with respect to the contrary notwithstanding, Obligations and the obligations of each Guarantor under this Agreement shall be limited security therefor;
(xx) any defense available to a maximum aggregate amount equal to surety under applicable law; and
(xxi) the largest amount that would not render its obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 benefit of Title 11 any statute of the United States Code or any applicable provisions of comparable state law (collectively, the "FRAUDULENT TRANSFER LAWS"), in each case after giving effect to all other liabilities of such Guarantor, contingent or otherwise, that are relevant under the Fraudulent Transfer Laws (specifically excluding, however, any liabilities of such Guarantor (x) in respect of intercompany indebtedness to Borrower or other affiliates of Borrower to the extent that such indebtedness would be discharged in an amount equal to the amount paid by such Guarantor hereunder and (y) under any guaranty of Subordinated Indebtedness which guaranty contains a limitation as to maximum amount similar to that set forth in this Section 11.4, pursuant to which limitations affecting the liability of such Guarantor Borrower hereunder or the enforcement hereof.
(c) Each Borrower further agrees that its obligations hereunder shall not be impaired in any manner whatsoever by any bankruptcy, extensions, moratoria or other relief granted to any other Borrower pursuant to any statute presently in force or hereafter enacted.
(d) Each Borrower authorizes Administrative Agent and each Lender to exercise, in its sole discretion, any right, remedy or combination thereof which may then be available to Administrative Agent or such Lender, since it is included in such Borrower's intent that the liabilities taken into account in determining Obligations be absolute, independent and unconditional obligations of such maximum amount) and after giving effect as assets Borrower under all circumstances. Notwithstanding any foreclosure of any Lien with respect to any or all of any property securing the value (as determined under Obligations, whether by the applicable provisions exercise of the Fraudulent Transfer Laws) power of sale contained therein, by an action for judicial foreclosure or by an acceptance of a deed in lieu of foreclosure, each Borrower shall remain bound under such Borrower's Guarantee of the Obligations directly incurred by any rights to subrogation, reimbursement, indemnification or contribution of such Guarantor pursuant to applicable law or pursuant to the terms of any agreementother Borrower.
11.5 Each Guarantor under this Agreement, (e) This Agreement is a primary and each guarantor under other guaranties, if any, relating to the Credit Agreement (the "RELATED GUARANTIES") that contain a contribution provision similar to that set forth in this Section 11.4, together desire to allocate among themselves (collectively, the "CONTRIBUTING GUARANTORS"), in a fair and equitable manner, their obligations arising under this Agreement and the Related Guaranties. Accordingly, in the event any payment or distribution is made on any date by a Guarantor under this Agreement or a guarantor under a Related Guaranty, each such Guarantor or such other guarantor shall be entitled to a contribution from original obligation of each of the other Contributing Guarantors in the maximum amount permitted by law so as to maximize the aggregate amount Borrowers and each of the Guarantied Borrowers shall be liable for all existing and future Obligations paid to the Indemniteesof any other Borrower as fully as if such Obligations were directly incurred by such Borrower.
Appears in 1 contract
Guarantor Provisions. If (a) Each Borrower, as joint and several primary obligor of the Obligations directly incurred by any other Borrower, authorizes Administrative Agent and Lenders, without giving notice to such Borrower or to any other Borrower (to the extent that permitted hereunder) or obtaining such Borrower’s consent or any other Borrower’s consent (to the extent permitted hereunder) and without affecting the liability of such Borrower for the Obligations directly incurred by the other Borrower, Holdings from time to time to:
(i) compromise, settle, renew, extend the time for payment, change the manner or terms of payment, discharge the performance of, decline to enforce, or release all or any of the Obligations; grant other indulgences to any Borrower in respect thereof; or modify in any manner any documents relating to the Obligations;
(ii) declare all Obligations due and payable upon the occurrence and during the continuance of an Event of Default;
(iii) take and hold security for the performance of the Obligations of any Borrower and exchange, enforce, waive and release any such security;
(iv) apply and reapply such security and direct the order or manner of sale thereof as Administrative Agent and/or any applicable Lender(s), in its sole discretion, may determine;
(v) release, surrender or exchange any deposits or other property securing the Obligations or on which Administrative Agent and/or any applicable Lender(s) at any time may have a Lien; release, substitute or add any one or more endorsers or guarantors of the Subsidiary Indemnitors (Obligations of any other Borrower or such Borrower; or compromise, settle, renew, extend the time for payment, discharge the purposes performance of, decline to enforce, or release all or any obligations of this Section 11, being individually and collectively referred to herein as "GUARANTOR") would be deemed any such endorser or construed to be a guarantor or surety under other Person who is now or may hereafter be liable on any Obligations or release, surrender or exchange any deposits or other property of any such Person;
(vi) apply payments received by Administrative Agent and/or any applicable law Lender(s) from any Borrower to any Obligations, in such order as Administrative Agent shall determine, in its sole discretion; and
(vii) assign this Agreement in whole or in part.
(b) Each Borrower, as a primary, joint and several obligor with respect to its obligations hereunderthe Obligations directly incurred by any other Borrower, each Guarantor hereby agrees as followswaives:
11.1 Guarantor expressly agrees that until each and every term, covenant and condition of this Agreement is fully performed, Guarantor shall not be released by any act or event which, except for this provision of this Agreement might be deemed a legal or equitable discharge or exoneration of a surety, or because of any waiver, extension, modification, forbearance or delay or other act or omission of the Administrative Agent or any Lender or any Rate Exchanger or their failure to proceed promptly or otherwise as against the Borrower or any of the Subsidiary Indemnitors, as the case may be (individually and collectively, in its or their capacity as the entity or entities the obligations of which are guaranteed hereunder by Guarantor, the "PRINCIPAL INDEMNITOR"i) or Guarantor, or because of any action taken or omitted or circumstance which might vary the risk or affect the rights or remedies of Guarantor as against the Principal Indemnitor, or because of any further dealings between the Principal Indemnitor and the Administrative Agent or any Lender, whether relating to this Agreement or otherwise. Guarantor hereby expressly waives and surrenders any defense to Guarantor's liability under this Agreement based upon any legal disability or other defense of any other Borrower, or by reason of the foregoing acts, omissions, things, agreements, waivers or any of them. It is the purpose and intent of this Agreement that the obligations of Guarantor under it XVIII-6 Environmental Indemnity shall be absolute and unconditional under any and all circumstances, subject to and in accordance with the terms and conditions of this Agreement.
11.2 Each Guarantor waives:
11.2.1 all statutes of limitations as a defense to any action or proceeding brought against Guarantor by the Administrative Agent or any Lender, to the fullest extent permitted by law;
11.2.2 any right it may have to require the Administrative Agent or any Lender to proceed against the Principal Indemnitor or pursue any other remedy in the Administrative Agent or any Lender's power to pursue, it being acknowledged and agreed that the obligations of Guarantor hereunder are independent of the obligations of the Principal Indemnitor hereunder, and neither the Administrative Agent nor any Lender shall be required to make any demand upon, exercise any right to declare a default by, or proceed against, the Principal Indemnitor prior to proceeding against Guarantor to the full extent of Guarantor's obligations hereunder;
11.2.3 any defense based on any legal disability of the Principal Indemnitor and any discharge, release cessation or limitation of the liability of any other Borrower from any cause (other than full payment of all Obligations), including, but not limited to, failure of consideration, breach of warranty, statute of frauds, statute of limitations, accord and satisfaction, and usury;
(ii) any defense based upon any legal disability or other defense of any other guarantor or other Person;
(iii) any defense based upon any lack of authority of the Principal Indemnitor officers, directors, partners or agents acting or purporting to act on behalf of any other Borrower or any principal of any other Borrower or any defect in the formation of any other Borrower or any principal of any other Borrower;
(iv) any defense based upon the application by any other Borrower of the proceeds of the credit facilities or the loans under the Financing Documents for purposes other than the purposes represented by such other Borrower to Administrative Agent and Lenders or any Lender, whether consensual intended or arising understood by operation of law Administrative Agent and Lenders or any bankruptcy, reorganization, receivership, insolvency, or debtor relief proceeding, or from any other cause, or any claim that Guarantor's obligations exceed or are more burdensome than those of the Principal Indemnitorsuch Borrower;
11.2.4 all presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance of this Agreement and of the existence, creation, or incurring of new or additional indebtedness, and demands and notices of every kind;
11.2.5 (v) any defense based on such Borrower’s rights, under statute or arising out otherwise, to require Administrative Agent and/or any applicable Lender(s) to xxx any other Borrower or otherwise to exhaust its rights and remedies against any other Borrower or any other Person or against any collateral before seeking to enforce its right to require such Borrower to satisfy the Obligations of any other Borrower;
(vi) any defense that the Principal Indemnitor may have based on Administrative Agent’s or any Lender’s failure at any time to the payment or require strict performance by any Borrower of any obligation set forth in this Agreement;
11.2.6 until all obligations under this Agreement have been paid and performed in full, all rights of subrogation and all rights to enforce any remedy that Guarantor may have against the Principal Indemnitor, all regardless of whether Guarantor may have made any payments to the Administrative Agent or any Lender or any Rate Exchanger; and
11.2.7 in the event that notwithstanding the provisions of Section 3.3, the obligations provision of the Principal IndemnitorFinancing Documents. Such Borrower agrees that no such failure shall waive, hereunder are held alter or deemed to be secured, diminish any right of Guarantor Administrative Agent and/or any applicable Lender(s) thereafter to have demand strict compliance and performance therewith. Nothing contained herein shall prevent Administrative Agent and/or any applicable Lender(s) from foreclosing on any Lien, or exercising any rights available to Administrative Agent and/or any applicable Lender(s) thereunder, and the Collateral exercise of the Principal Indemnitor first applied to the any such rights shall not constitute a legal or equitable discharge of such Borrower;
(vii) any defense arising from any act or omission of Administrative Agent and/or any applicable Lender(s) which changes the Secured scope of such Borrower’s risks hereunder;
(viii) any defense based upon Administrative Agent’s or any Lender’s election of any remedy against such Borrower or any other Borrower or any of them; any defense based on the order in which Administrative Agent and/or any Lender(s) enforces its remedies;
(ix) any defense based on (A) Administrative Agent’s or any applicable Lender’s surrender, release, exchange, substitution, dealing with or taking any additional collateral, (B) Administrative Agent’s or any applicable Lender’s abstaining from taking advantage of or realizing upon any Lien or other Guarantee, and (C) any impairment of collateral securing the Obligations, and Guarantor expressly recognizes that any such Collateral is security for the Principal Indemnitor's obligations hereunder including, but not for Guarantor's obligations hereunder.limited to, Administrative Agent’s or any applicable Lender’s failure to perfect or maintain a Lien in such collateral;
11.2.8 Each Guarantor assumes full responsibility for keeping informed of the financial condition and business operations of the Principal Indemnitor and all other circumstances affecting the Principal Indemnitor's ability to pay for and perform its obligations to the Indemnitees, and agrees that neither the (x) any defense based upon Administrative Agent nor Agent’s or any Lender have a duty Lender’s failure to disclose to Guarantor such Borrower any information which the Administrative Agent or concerning any such Lender may XVIII-7 Environmental Indemnity receive about the Principal Indemnitor's other Borrower’s financial condition, business operations, condition or any other circumstances bearing on its any other Borrower’s ability to perform.pay the Obligations;
11.3 Each Guarantor jointly and severally agrees to perform and (xi) any defense based upon any statute or rule of law which provides that the obligation of a surety must be liable for neither larger in amount nor in any other respects more burdensome than that of a principal;
(xii) any defense based upon Administrative Agent’s and/or any Lender’s election, in any proceeding instituted under the obligations Bankruptcy Code, of the Principal Indemnitor application of Bankruptcy Code §1111(b)(2) or any successor statute;
(xiii) any defense based upon any borrowing or any grant of a security interest under Bankruptcy Code §364;
(xiv) any defense based on Administrative Agent’s and/or any Lender’s failure to be diligent or to satisfy any other standard imposed on a secured party, in exercising rights with respect to collateral securing the Obligations;
(xv) except as otherwise expressly set forth herein: notice of acceptance hereof; notice of the existence, creation or acquisition of any Obligation; notice of any Event of Default; notice of the amount of the Obligations outstanding from time to time; notice of any other fact which might increase such Borrower’s risk; diligence; presentment; demand of payment; protest; filing of claims with a court in the event of any other Borrower’s receivership or bankruptcy and all other notices and demands to which such Borrower might otherwise be entitled (and agrees the same shall not have to be made on the other Borrower as a condition precedent to such Borrower’s obligations hereunder.);
11.4 Anything contained (xvi) any defense based on errors and omissions by Administrative Agent and/or any Lender in this Agreement connection with its administration of the credit facilities;
(xvii) any defense based on application of fraudulent conveyance or transfer law or shareholder distribution law to any of the Obligations or the security therefor;
(xviii) any defense based on Administrative Agent’s and/or any Lender’s failure to seek relief from stay or adequate protection in any other Borrower’s bankruptcy proceeding or any other act or omission by Administrative Agent and/or any Lender which impairs such Borrower’s prospective subrogation rights;
(xix) any defense based on legal prohibition of Administrative Agent’s and/or any Lender’s acceleration of the maturity of the Obligations during the occurrence of an Event of Default or any other legal prohibition on enforcement of any other right or remedy of Administrative Agent and/or any Lender with respect to the contrary notwithstanding, Obligations and the obligations of each Guarantor under this Agreement shall be limited security therefor;
(xx) any defense available to a maximum aggregate amount equal to surety under applicable law; and
(xxi) the largest amount that would not render its obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 benefit of Title 11 any statute of the United States Code or any applicable provisions of comparable state law (collectively, the "FRAUDULENT TRANSFER LAWS"), in each case after giving effect to all other liabilities of such Guarantor, contingent or otherwise, that are relevant under the Fraudulent Transfer Laws (specifically excluding, however, any liabilities of such Guarantor (x) in respect of intercompany indebtedness to Borrower or other affiliates of Borrower to the extent that such indebtedness would be discharged in an amount equal to the amount paid by such Guarantor hereunder and (y) under any guaranty of Subordinated Indebtedness which guaranty contains a limitation as to maximum amount similar to that set forth in this Section 11.4, pursuant to which limitations affecting the liability of such Guarantor Borrower hereunder or the enforcement hereof.
(c) Each Borrower further agrees that its obligations hereunder shall not be impaired in any manner whatsoever by any bankruptcy, extensions, moratoria or other relief granted to any other Borrower pursuant to any statute presently in force or hereafter enacted.
(d) Each Borrower authorizes Administrative Agent and each Lender to exercise, in its sole discretion, any right, remedy or combination thereof which may then be available to Administrative Agent or such Lender, since it is included in such Borrower’s intent that the liabilities taken into account in determining Obligations be absolute, independent and unconditional obligations of such maximum amount) and after giving effect as assets Borrower under all circumstances. Notwithstanding any foreclosure of any Lien with respect to any or all of any property securing the value (as determined under Obligations, whether by the applicable provisions exercise of the Fraudulent Transfer Laws) power of sale contained therein, by an action for judicial foreclosure or by an acceptance of a deed in lieu of foreclosure, each Borrower shall remain bound under such Borrower’s Guarantee of the Obligations directly incurred by any rights to subrogation, reimbursement, indemnification or contribution of such Guarantor pursuant to applicable law or pursuant to the terms of any agreementother Borrower.
11.5 Each Guarantor under this Agreement, (e) This Agreement is a primary and each guarantor under other guaranties, if any, relating to the Credit Agreement (the "RELATED GUARANTIES") that contain a contribution provision similar to that set forth in this Section 11.4, together desire to allocate among themselves (collectively, the "CONTRIBUTING GUARANTORS"), in a fair and equitable manner, their obligations arising under this Agreement and the Related Guaranties. Accordingly, in the event any payment or distribution is made on any date by a Guarantor under this Agreement or a guarantor under a Related Guaranty, each such Guarantor or such other guarantor shall be entitled to a contribution from original obligation of each of the other Contributing Guarantors in the maximum amount permitted by law so as to maximize the aggregate amount Borrowers and each of the Guarantied Borrowers shall be liable for all existing and future Obligations paid to the Indemniteesof any other Borrower as fully as if such Obligations were directly incurred by such Borrower.
Appears in 1 contract
Samples: Credit and Security Agreement (Dynacq Healthcare Inc)
Guarantor Provisions. If and to (a) In the extent event that any Subsidiary by the Borrower, Holdings or any one or more application of law is treated as a guarantor of the Subsidiary Indemnitors (for Secured Obligations instead of a direct obligor, the purposes provisions of this Section 116 shall apply. Such Subsidiary hereby irrevocably waives:
(i) the legality, being individually validity or enforceability of this guaranty, the Note or any other Investment Document, any of the Guarantied Obligations, any Lien or any Collateral;
(ii) any defense (other than payment), set-off or counterclaim that may at any time be available to such Subsidiary or any other Company Party against, and collectively referred to herein as "GUARANTOR"any right of setoff at any time held by, Secured Party;
(iii) would be deemed any acts of commission or construed to be a guarantor or surety under applicable law omission of any kind at any time on the part of Secured Party with respect to its obligations hereunderany matter whatsoever;
(iv) the liquidation or dissolution of such Subsidiary or any other Company Party, each Guarantor hereby agrees as follows:
11.1 Guarantor expressly agrees that until each and every termany bankruptcy, covenant and condition insolvency, reorganization, arrangement, assignment for the benefit of this Agreement is fully performedcreditors, Guarantor shall not be released receivership or similar event or proceeding with respect to such Subsidiary or any other Company Party, or any action taken by any act trustee or event which, except for this provision receiver of this Agreement might be deemed a legal such Subsidiary or equitable discharge any other Company Party or exoneration by any court or any proceeding with respect to such Subsidiary or any other Company Party;
(v) any change of a suretyownership of the Capital Stock of such Subsidiary or any other Company Party, or because any change in the relationship between any Subsidiary and such Subsidiary (including, without limitation, the termination of such relationship);
(vi) any assignment or other transfer, in whole or in part, of Secured Party's interest in and rights under the Securities Purchase Agreement, the Note or any other Investment Document, including this Agreement, or of the Beneficiary's interest in the Guarantied Obligations, the Obligations or the Collateral;
(vii) any cancellation, renunciation or surrender of any waiverpledge, extension, modification, forbearance or delay or other act or omission of the Administrative Agent guaranty or any Lender debt instrument evidencing the Obligations or the Guarantied Obligations; or
(viii) any other circumstance whatsoever (with or without notice to or knowledge of any Subsidiary or any Rate Exchanger other Company Party), whether or their failure not similar to proceed promptly or otherwise as against the Borrower or any of the foregoing, that constitutes, or might be construed to constitute, an equitable or legal discharge of such Subsidiary Indemnitors, as the case may be (individually and collectivelyor any other Company Party, in its bankruptcy or their capacity as the entity or entities the obligations of which are guaranteed hereunder by Guarantor, the "PRINCIPAL INDEMNITOR") or Guarantor, or because of in any action taken or omitted or circumstance which might vary the risk or affect the rights or remedies of Guarantor as against the Principal Indemnitor, or because of any further dealings between the Principal Indemnitor and the Administrative Agent or any Lender, whether relating to this Agreement or otherwise. Guarantor hereby expressly waives and surrenders any defense to Guarantor's liability under this Agreement based upon any of the foregoing acts, omissions, things, agreements, waivers or any of them. It is the purpose and intent of this Agreement that the obligations of Guarantor under it XVIII-6 Environmental Indemnity shall be absolute and unconditional under any and all circumstances, subject to and in accordance with the terms and conditions of this Agreementother instance.
11.2 Each Guarantor waives:
11.2.1 all statutes of limitations as a defense to any action or proceeding brought against Guarantor by (ix) the Administrative Agent or any Lender, to the fullest extent permitted by law;
11.2.2 any right it may have to require the Administrative Agent or any Lender Secured Party to proceed against the Principal Indemnitor any other Subsidiary or any other Company Party, to proceed against or exhaust any Collateral or to pursue any other remedy in the Administrative Agent or any LenderSecured Party's power to pursue, it being acknowledged and agreed that the obligations of Guarantor hereunder are independent of the obligations of the Principal Indemnitor hereunderwhatsoever, and neither the Administrative Agent nor any Lender shall be required to make any demand upon, exercise any right to declare a default by, or proceed against, the Principal Indemnitor prior to proceeding against Guarantor to the full extent of Guarantor's obligations hereunder;
11.2.3 any defense based on any legal disability of the Principal Indemnitor and any discharge, release or limitation of the liability of the Principal Indemnitor to the Administrative Agent or any Lender, whether consensual or arising by operation of law or any bankruptcy, reorganization, receivership, insolvency, or debtor relief proceeding, or from any other cause, or any claim that Guarantor's obligations exceed or are more burdensome than those of the Principal Indemnitor;
11.2.4 all presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance of this Agreement and of the existence, creation, or incurring of new or additional indebtedness, and demands and notices of every kind;
11.2.5 any defense based on or arising out of any defense that the Principal Indemnitor may have to the payment or performance of any obligation set forth in this Agreement;
11.2.6 until all obligations under this Agreement have been paid and performed in full, all rights of subrogation and all rights to enforce any remedy that Guarantor may have against the Principal Indemnitor, all regardless of whether Guarantor may have made any payments to the Administrative Agent or any Lender or any Rate Exchanger; and
11.2.7 in the event that notwithstanding the provisions of Section 3.3, the obligations of the Principal Indemnitor, hereunder are held or deemed to be secured, any right of Guarantor to have the Collateral property of the Principal Indemnitor any other Subsidiary or any other Company Party first applied to the discharge of the Secured Guarantied Obligations, ;
(x) all rights and Guarantor expressly recognizes that benefits under Section 2809 of the California Civil Code and any such Collateral is security for the Principal Indemnitorsimilar Applicable Laws purporting to reduce a guarantor's obligations hereunder but not for Guarantor's obligations hereunder.
11.2.8 Each Guarantor assumes full responsibility for keeping informed in proportion to the obligation of the financial condition and business operations principal or providing that the obligation of a surety or guarantor must neither be larger nor in other respects more burdensome than that of the Principal Indemnitor and all other circumstances principal;
(xi) the benefit of any statute of limitations affecting the Principal IndemnitorGuarantied Obligations or such Subsidiary's ability to pay for liability hereunder and perform its obligations to under Section 359.5 of the Indemnitees, California Code of Civil Procedure and agrees that neither the Administrative Agent nor any Lender have a duty to disclose to Guarantor similar Applicable Laws;
(xii) any information which the Administrative Agent or any such Lender may XVIII-7 Environmental Indemnity receive about the Principal Indemnitor's financial condition, business operations, requirement of marshaling or any other circumstances bearing on its ability to perform.
11.3 Each Guarantor jointly principle of election of remedies and severally agrees to perform all rights and be liable for the obligations defenses arising out of the Principal Indemnitor hereunder.
11.4 Anything contained in this Agreement an election of remedies by Secured Party, even though that election of remedies, such as non-judicial foreclosure with respect to the contrary notwithstanding, the obligations of each Guarantor under this Agreement shall be limited to a maximum aggregate amount equal to the largest amount that would not render its obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11 of the United States Code or any applicable provisions of comparable state law (collectively, the "FRAUDULENT TRANSFER LAWS"), in each case after giving effect to all other liabilities of such Guarantor, contingent or otherwise, that are relevant under the Fraudulent Transfer Laws (specifically excluding, however, any liabilities of such Guarantor (x) in respect of intercompany indebtedness to Borrower or other affiliates of Borrower to the extent that such indebtedness would be discharged in an amount equal to the amount paid by such Guarantor hereunder and (y) under any guaranty of Subordinated Indebtedness which guaranty contains a limitation as to maximum amount similar to that set forth in this Section 11.4, pursuant to which the liability of such Guarantor hereunder is included in the liabilities taken into account in determining such maximum amount) and after giving effect as assets to the value (as determined under the applicable provisions of the Fraudulent Transfer Laws) of any rights to subrogation, reimbursement, indemnification or contribution of such Guarantor pursuant to applicable law or pursuant to the terms of any agreement.
11.5 Each Guarantor under this Agreement, and each guarantor under other guaranties, if any, relating to the Credit Agreement (the "RELATED GUARANTIES") that contain a contribution provision similar to that set forth in this Section 11.4, together desire to allocate among themselves (collectively, the "CONTRIBUTING GUARANTORS"), in a fair and equitable manner, their obligations arising under this Agreement and the Related Guaranties. Accordingly, in the event any payment or distribution is made on any date by a Guarantor under this Agreement or a guarantor under a Related Guaranty, each such Guarantor or such other guarantor shall be entitled to a contribution from each of the other Contributing Guarantors in the maximum amount permitted by law so as to maximize the aggregate amount of the Guarantied Obligations paid to the Indemnitees.security for
Appears in 1 contract
Samples: Security Agreement (Quiznos Corp)
