Guarantor’s Obligations Unconditional. The covenants and agreements of the Guarantor set forth herein shall be primary obligations of the Guarantor, and such obligations shall be continuing, absolute and unconditional, shall not be subject to any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the Guarantor or any other Person may have against Lessor or any other Person or otherwise, and shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor or Lessee shall have any knowledge or notice thereof) including, without limitation: (a) any amendment, modification, addition, deletion, supplement or renewal to or other change in the Obligations, the Lease or any other Operative Document or any of the agreements referred to in any thereof, or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee of, or right of offset with respect to, any of the Obligations; or the failure or release of any security or the failure of Lessor to perfect or insure any interest in any collateral, including the Collateral; (b) any failure, omission or delay on the part of Lessee or Lessor to conform or comply with any term of any instrument or agreement referred to in clause (a) above; (c) any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset or security referred to in clause (a) above or any obligation or liability of Lessee or Lessor, or any exercise or nonexercise by Lessor of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset or security or any such obligation or liability; (d) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to Lessee, Lessor or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person or court in any such proceeding; (e) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease or any other agreement, instrument, guarantee or security referred to in clause (a) above or any term of any thereof; (f) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person; (g) any merger or liquidation of Lessee or any merger or consolidation of the Guarantor into or with any other corporation or partnership or any sale, lease or transfer of any of the assets of Lessee or the Guarantor to any other Person; (h) any change in the ownership of the capital stock of Lessee; or (i) any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing and any other circumstance 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or rendered.
Appears in 5 contracts
Samples: Supplemental Indenture (Northwest Airlines Corp), Supplemental Indenture (Northwest Airlines Corp), Supplemental Indenture (Northwest Airlines Corp)
Guarantor’s Obligations Unconditional. The covenants and agreements of the Guarantor each Credit Party set forth herein in this Guaranty of Payment shall be primary obligations of the Guarantorsuch Credit Party, and such obligations shall be continuing, absolute and unconditional, shall not be subject to any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor Credit Party with its obligations hereunder), whether based upon any claim that Lessee or the Guarantor any Credit Party or any other Person may have against Lessor Agent, any Lender or any other Person or otherwise, and shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor Borrowers or Lessee other Company shall have any knowledge or notice thereof) including, without limitation:
(a) any Any amendment, modification, addition, deletion, supplement or renewal to or of or other change in the Obligations, Liabilities or this Agreement or the Lease other Loan Documents or any other Operative Document related instrument or any of the agreements referred to in any thereofagreement, or any other instrument or agreement applicable thereto or to any Operative Document or any of the parties to such agreements, or to the Aircraft, or any assignment, mortgage or transfer thereof or of any interest thereinCollateral, or any furnishing or acceptance of additional security for, guarantee of, guaranty of or right of offset with respect to, any of the ObligationsLiabilities; or the failure or release of any security or the failure of Lessor Agent or any Lender to perfect or insure any interest in any collateral, including the Collateral;
(b) any Any failure, omission or delay on the part of Lessee any Credit Party, Agent or Lessor any Lender to conform or comply with any term of any instrument or agreement referred to in clause subsection (a) above;
(c) any Any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guaranteeguaranty, right of offset or security referred to in clause subsection (a) above or any obligation or liability of Lessee any Credit Party, Agent or Lessorany Lender, or any exercise or nonexercise non-exercise by Lessor Agent or any Lender of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guaranteeguaranty, right of offset or security or any such obligation or liability;
(d) any Any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to Lesseeany Credit Party, Lessor Agent, any Lender or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person trustee or receiver or by any court in any such proceeding;
(e) any Any limitation on the liability or obligations of any Person under this Agreement and the Lease other Loan Documents or any other Operative Documentrelated instrument or agreement, the ObligationsLiabilities, any collateral security for the Obligations Liabilities, or any other guarantee guaranty of the Obligations Liabilities or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease or any other agreement, instrument, guarantee guaranty or security referred to in clause subsection (a) above or any term of any thereof;
(f) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any Any merger or consolidation of the Guarantor Borrowers or any other Credit Party into or with any other corporation or partnership Person or any sale, lease or transfer of any of the assets of Lessee Borrowers or the Guarantor any other Credit Party to any other Person;
(hg) any Any change in the ownership of any of the capital stock equity interests of Lesseeany Borrower or any other Credit Party or any entity change in Borrowers or any other Credit Party; or
(ih) any Any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing and any other circumstance that might otherwise constitute a legal or equitable defense or discharge of the liabilities of a guarantor any Credit Party or surety or that might otherwise limit recourse against the Guarantorany Credit Party. The obligations of the Guarantor, each Credit Party set forth herein constitute the full recourse obligations of the Guarantor such Credit Party, enforceable against it to the full extent of all its assets and properties, notwithstanding any provision in the Lease or any other agreement . Without limiting the liability provisions of Lessor Section 12.1 hereof, each Credit Party waives any and all notice of the creation, renewal, extension or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect accrual of any of the obligations guaranteed hereunder whether Liabilities and notice of or not proof of reliance by Agent and the Guarantor is a party Lenders upon this Guaranty of Payment or acceptance of this Guaranty of Payment, and the Liabilities, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guaranty of Payment. Each Credit Party unconditionally waives, to the extent permitted by law: (a) acceptance of this Guaranty of Payment and proof of reliance by Agent and the Lenders hereon; (b) notice of any of the matters referred to in the foregoing subsections (a) through (h) hereof, or any right to consent or assent to any thereof; (c) all notices that may be required by statute, rule or law or otherwise, now or hereafter in effect, to preserve intact any rights against any Credit Party, including without limitation, any demand, presentment, protest, proof or notice of nonpayment under this Agreement or any other Loan Document or any related instrument or agreement; (d) any right to the enforcement, assertion or exercise against any Credit Party of any right, power, privilege or remedy conferred in this Agreement, any other Loan Document or any related instrument or agreement or otherwise; (e) any requirement of diligence on the part of any Person; (f) any requirement of Agent or any Lender to take any action whatsoever, to exhaust any remedies or proceeding to mitigate the damages resulting from a default under this Agreement, any other Loan Document or any related instrument or agreement; (g) any notice of any sale, transfer or other disposition by any Person of any right under, title to or interest in this Agreement, any other Loan Document or any related instrument or agreement relating thereto or any Collateral for the Liabilities; and (h) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge, release or defense of a guarantor or surety, or that might otherwise limit recourse against a Credit Party. Without limiting the foregoing, each Credit Party hereby absolutely, unconditionally and irrevocably waives and agrees not to assert or take advantage of any defense based upon an election of remedies by Agent or any Lender, including an election to proceed by non-judicial rather than judicial foreclosure, which destroys or impairs any right of subrogation of such rulingCredit Party or the right of such Credit Party to proceed against any Person for reimbursement or both. Each Credit Party agrees that this Guaranty of Payment shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any Borrower or any other Credit Party is rescinded or must be otherwise restored by Agent or any Lender, order whether as a result of any proceedings in bankruptcy or judgment is issued reorganization or renderedotherwise.
Appears in 4 contracts
Samples: Credit and Security Agreement, Credit and Security Agreement (Ultralife Corp), Credit and Security Agreement (Regional Brands Inc.)
Guarantor’s Obligations Unconditional. The covenants and agreements obligations of the each Guarantor set forth herein under this Guaranty shall be primary obligations of the Guarantor, and such obligations shall be continuingprimary, absolute and unconditionalunconditional obligations of each Guarantor, shall not be subject to any counterclaim, setoffset-off, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the each Guarantor or any other Person person may have against Lessor the Company or any other Person or otherwiseperson, and to the full extent permitted by applicable law shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the each Guarantor or Lessee the Company shall have any knowledge or notice thereof) ), including, without limitation:
(a) any amendmenttermination, modification, addition, deletion, amendment or modification of or deletion from or addition or supplement or renewal to or other change in the Obligations, the Lease or any other Operative Document or any of the agreements referred to in any thereof, Note Documents or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to any of the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or Note Documents;
(b) any furnishing or acceptance of additional security for, guarantee ofany security, or right any release of offset with respect toany security, any of for the Obligations; , or the failure or release of any security or the failure of Lessor any person to perfect or insure any interest in any collateral, including the Collateral;
(bc) any failure, omission or delay on the part of Lessee or Lessor the Company to conform or comply with any term of any of the Note Documents or any other instrument or agreement referred to in clause paragraph (a) above, including, without limitation, failure to give notice to any Guarantor of the occurrence of a “Default” or an “Event of Default” under any Note Document;
(cd) any waiver of the payment, performance or observance of any of the obligations, conditions, covenants or agreements contained in any Note Document, or any other waiver, consent, extension, indulgence, compromise, settlement, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset the Note Documents or security any other instrument or agreement referred to in clause paragraph (a) above or any obligation or liability of Lessee or Lessorthe Company, or any exercise or nonexercise by Lessor non-exercise of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset instrument or security agreement or any such obligation or liability;
(de) any failure, omission or delay on the part of any of the Holders to enforce, assert or exercise any right, power or remedy conferred on such Holder in this Guaranty, or any such failure, omission or delay on the part of such Holder in connection with any Note Document, or any other action on the part of such Holder;
(f) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, liquidation receivership, conservatorship, custodianship, liquidation, marshaling of assets and liabilities or similar proceeding proceedings with respect to Lesseethe Company, Lessor any Guarantor or to any other Person person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person trustee or receiver or by any court in any such proceeding;
(eg) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease Note Documents or any other agreement, instrument, guarantee agreement or security instrument referred to in clause paragraph (a) above or any term of any thereofhereof;
(fh) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Company or any Guarantor into or with any other corporation or partnership corporation, or any sale, lease or transfer of any of the assets of Lessee the Company or the any Guarantor to any other Personperson;
(hi) any change in the ownership of the any shares of capital stock of Lesseethe Company or any change in the corporate relationship between the Company and any Guarantor, or any termination of such relationship;
(j) any release or discharge, by operation of law, of any Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty; or
(ik) any other occurrence occurrence, circumstance, happening or circumstance event whatsoever, whether similar or dissimilar to the foregoing foregoing, whether foreseen or unforeseen, and any other circumstance that which might otherwise constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or that which might otherwise limit recourse against the any 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or rendered.
Appears in 4 contracts
Samples: Note Purchase Agreement (Watts Water Technologies Inc), Guaranty (Watts Water Technologies Inc), Subsidiary Guaranty (Watts Water Technologies Inc)
Guarantor’s Obligations Unconditional. The covenants and agreements obligations of the each Guarantor set forth herein under this Guaranty shall be primary obligations of the Guarantor, and such obligations shall be continuingprimary, absolute and unconditionalunconditional obligations of each Guarantor, shall not be subject to any counterclaim, setoffset-off, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the each Guarantor or any other Person person may have against Lessor the Company or any other Person or otherwiseperson, and to the full extent permitted by applicable law shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the each Guarantor or Lessee the Company shall have any knowledge or notice thereof) ), including, without limitation:
(a) any amendmenttermination, modification, addition, deletion, amendment or modification of or deletion from or addition or supplement or renewal to or other change in the Obligations, the Lease or any other Operative Document or any of the agreements referred to in any thereof, Note Documents or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to any of the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or Note Documents;
(b) any furnishing or acceptance of additional security for, guarantee ofany security, or right any release of offset with respect toany security, any of for the Obligations; , or the failure or release of any security or the failure of Lessor any person to perfect or insure any interest in any collateral, including the Collateral;
(bc) any failure, omission or delay on the part of Lessee or Lessor the Company to conform or comply with any term of any of the Note Documents or any other instrument or agreement referred to in clause paragraph (a) above, including, without limitation, failure to give notice to any Guarantor of the occurrence of a “Default” or an “Event of Default” under any Note Document;
(cd) any waiver of the payment, performance or observance of any of the obligations, conditions, covenants or agreements contained in any Note Document, or any other waiver, consent, extension, indulgence, compromise, settlement, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset the Note Documents or security any other instrument or agreement referred to in clause paragraph (a) above or any obligation or liability of Lessee or Lessorthe Company, or any exercise or nonexercise by Lessor non-exercise of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset instrument or security agreement or any such obligation or liability;
(de) any failure, omission or delay on the part of any of the Holders to enforce, assert or exercise any right, power or remedy conferred on such Holder in this Guaranty, or any such failure, omission or delay on the part of such Holder in connection with any Note Document, or any other action on the part of such Holder;
(f) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, liquidation receivership, conservatorship, custodianship, liquidation, marshaling of assets and liabilities or similar proceeding proceedings with respect to Lesseethe Company, Lessor or any other Person Guarantor or to any other person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person trustee or receiver or by any court in any such proceeding;
(eg) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease Note Documents or any other agreement, instrument, guarantee agreement or security instrument referred to in clause paragraph (a) above or any term of any thereofhereof;
(fh) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Company or any Guarantor into or with any other corporation or partnership Person, or any sale, lease or transfer of any of the assets of Lessee the Company or the any Guarantor to any other Personperson;
(hi) any change in the ownership of the any shares of capital stock of Lesseethe Company or any change in the corporate relationship between the Company and any Guarantor, or any termination of such relationship;
(j) any release or discharge, by operation of law, of any other Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty; or
(ik) any other occurrence occurrence, circumstance, happening or circumstance event whatsoever, whether similar or dissimilar to the foregoing foregoing, whether foreseen or unforeseen, and any other circumstance that which might otherwise constitute a legal or equitable defense or (other than the defense of payment)or discharge of the liabilities of a guarantor or surety or that which might otherwise limit recourse against the any 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or rendered.
Appears in 3 contracts
Samples: Master Note Purchase Agreement (Polaris Industries Inc/Mn), Guaranty (Tetra Technologies Inc), Subsidiary Guaranty (Tetra Technologies Inc)
Guarantor’s Obligations Unconditional. The covenants and agreements obligations of the each Guarantor set forth herein under this Guaranty shall be primary obligations of the Guarantor, and such obligations shall be continuingprimary, absolute and unconditionalunconditional obligations of each Guarantor, shall not be subject to any counterclaim, setoffset-off, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the each Guarantor or any other Person person may have against Lessor the Company or any other Person or otherwiseperson, and to the full extent permitted by applicable law shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the each Guarantor or Lessee the Company shall have any knowledge or notice thereof) ), including, without limitation:
(a) any amendmenttermination, modification, addition, deletion, amendment or modification of or deletion from or addition or supplement or renewal to or other change in the Obligations, the Lease or any other Operative Document or any of the agreements referred to in any thereof, Note Documents or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to any of the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or Note Documents;
(b) any furnishing or acceptance of additional security for, guarantee ofany security, or right any release of offset with respect toany security, any of for the Obligations; , or the failure or release of any security or the failure of Lessor any person to perfect or insure any interest in any collateral, including the Collateral;
(bc) any failure, omission or delay on the part of Lessee or Lessor the Company to conform or comply with any term of any of the Note Documents or any other instrument or agreement referred to in clause paragraph (a) above, including, without limitation, failure to give notice to any Guarantor of the occurrence of a “Default” or an “Event of Default” under any Note Document;
(cd) any waiver of the payment, performance or observance of any of the obligations, conditions, covenants or agreements contained in any Note Document, or any other waiver, consent, extension, indulgence, compromise, settlement, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset the Note Documents or security any other instrument or agreement referred to in clause paragraph (a) above or any obligation or liability of Lessee or Lessorthe Company, or any exercise or nonexercise by Lessor non-exercise of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset instrument or security agreement or any such obligation or liability;
(d) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to Lessee, Lessor or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person or court in any such proceeding;
(e) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease or any other agreement, instrument, guarantee or security referred to in clause (a) above or any term of any thereof;
(f) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Guarantor into or with any other corporation or partnership or any sale, lease or transfer of any of the assets of Lessee or the Guarantor to any other Person;
(h) any change in the ownership of the capital stock of Lessee; or
(i) any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing and any other circumstance 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or rendered.
Appears in 3 contracts
Samples: Master Note Purchase Agreement (Cerner Corp /Mo/), Note Purchase Agreement (Intrepid Potash, Inc.), Note Purchase Agreement (Helmerich & Payne Inc)
Guarantor’s Obligations Unconditional. The covenants and agreements obligations of the Guarantor set forth herein under this Guaranty shall be primary primary, absolute and unconditional obligations of the Guarantor, and such obligations shall be continuing, absolute and unconditional, shall not be subject to any counterclaim, setoffset-off, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the Guarantor or any other Person person may have against Lessor the Company or any other Person or otherwiseperson, and to the full extent permitted by applicable law shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever other than the indefeasible payment in full of the Obligations (whether or not the Guarantor or Lessee the Company shall have any knowledge or notice thereof) ), including, without limitation:
(a) any amendmenttermination, modification, addition, deletion, amendment or modification of or deletion from or addition or supplement or renewal to or other change in the Obligations, the Lease or any other Operative Document or any of the agreements referred to in any thereof, Note Documents or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to any of the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or Note Documents;
(b) any furnishing or acceptance of additional security for, guarantee ofany security, or right any release of offset with respect toany security, any of for the Obligations; , or the failure or release of any security or the failure of Lessor any person to perfect or insure any interest in any collateral, including the Collateral;
(bc) any failure, omission or delay on the part of Lessee or Lessor the Company to conform or comply with any term of any of the Note Documents or any other instrument or agreement referred to in clause paragraph (a) above, including, without limitation, failure to give notice to the Guarantor of the occurrence of a “Default” or an “Event of Default” under any Note Document;
(cd) any waiver of the payment, performance or observance of any of the obligations, conditions, covenants or agreements contained in any Note Document, or any other waiver, consent, extension, indulgence, compromise, settlement, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset the Note Documents or security any other instrument or agreement referred to in clause paragraph (a) above or any obligation or liability of Lessee or Lessorthe Company, or any exercise or nonexercise by Lessor non-exercise of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset instrument or security agreement or any such obligation or liability;
(de) any failure, omission or delay on the part of any of the Holders to enforce, assert or exercise any right, power or remedy conferred on such Holder in this Guaranty, or any such failure, omission or delay on the part of such Holder in connection with any Note Document, or any other action on the part of such Holder;
(f) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, liquidation receivership, conservatorship, custodianship, liquidation, marshaling of assets and liabilities or similar proceeding proceedings with respect to Lesseethe Company, Lessor the Guarantor or to any other Person person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person trustee or receiver or by any court in any such proceeding;
(eg) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease Note Documents or any other agreement, instrument, guarantee agreement or security instrument referred to in clause paragraph (a) above or any term of any thereofhereof;
(fh) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Company or the Guarantor into or with any other corporation or partnership corporation, or any sale, lease or transfer of any of the assets of Lessee the Company or the Guarantor to any other Personperson;
(hi) any change in the ownership of the any shares of capital stock of Lesseethe Company or any change in the corporate relationship between the Company and the Guarantor, or any termination of such relationship;
(j) any release or discharge, by operation of law, of any other guarantor from the performance or observance of any obligation, covenant or agreement contained in any other guarantee of the Note Documents or the Obligations; or
(ik) any other occurrence occurrence, circumstance, happening or circumstance event whatsoever, whether similar or dissimilar to the foregoing foregoing, whether foreseen or unforeseen, and any other circumstance that which might otherwise constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or that which 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or rendered.
Appears in 3 contracts
Samples: Note Purchase Agreement (United Stationers Inc), Guaranty (United Stationers Inc), Parent Guaranty (United Stationers Inc)
Guarantor’s Obligations Unconditional. The covenants Guarantors’ obligations hereunder are independent of Lessee’s obligations under the Lease and agreements the other Operative Documents or in respect of any other Person, and the Administrative Agent, for the benefit of the Guarantor set forth herein shall be primary obligations Beneficiaries, may enforce any of its rights hereunder independently of any other right or remedy that it or any other Beneficiary may at any time hold with respect to the Guarantor, and such Liabilities or any security or other guaranty therefor. Such obligations shall be continuing, absolute and unconditional, shall not be subject to any counterclaim, setoff, deductiondeduction (other than deductions or withholdings in respect of Taxes that are permitted by the Operative Documents), diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by indefeasible payment and performance of all of the Guarantor with its obligations hereunderLiabilities), whether based upon any claim that Lessee or the Lessee, Guarantor or any other Person may have against Lessor any Beneficiary or any other Person or otherwise, and shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (other than full and indefeasible payment and performance of all of the Liabilities or as otherwise expressly permitted by Section 17) (whether or not the any Guarantor or Lessee any other Person shall have any knowledge or notice thereof) including, without limitation, any of the following:
(aA) subject to the terms of the Lease and the other Operative Documents, any amendment, modification, addition, deletion, supplement or renewal to or of or other change in the Obligations, the Lease Liabilities or any other Operative Document or any of the agreements referred to in any thereof, or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to the AircraftLeased Property, or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee of, guaranty of or right of offset with respect to, any of the ObligationsLiabilities; or the failure or release of any security or the failure of Lessor any Beneficiary to perfect or insure any interest in any collateral, including the Collateral;
(bB) any failure, omission or delay on the part of Lessee Lessee, any Beneficiary or Lessor any other Guarantor to conform or comply with any term of any instrument or agreement referred to in clause (aA) above;
(cC) any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guaranteeguaranty, right of offset or security referred to in clause (aA) above or any obligation or liability of Lessee or Lessorany Beneficiary or any other Person, or any exercise or nonexercise non-exercise by Lessor any Beneficiary or any other Person of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guaranteeguaranty, right of offset or security or any such obligation or liability;
(dD) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to Lessee, Lessor any Beneficiary, any Guarantor or any other Person guarantor or obligor of any Liabilities or any of their respective properties or creditorsproperties, or any action taken by any trustee, receiver, other Person receiver or court in any such proceeding;
(eE) subject to Sections 15.15 and 15.16 of the Participation Agreement, any limitation on the liability or obligations of any Person (including, without limitation, Lessee) under the Lease or any other Operative Document, the ObligationsLiabilities, any collateral security for the Obligations Liabilities, any other guaranty of the Liabilities or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease foregoing or any other agreement, instrument, guarantee guaranty or security referred to in clause (aA) above or any term of any thereofthereof (other than any such discharge, termination or cancellation as a result of full and indefeasible payment and performance of all of the Liabilities);
(fF) any defect in the title, compliance with specifications, condition, design, operation or fitness for use of of, or any damage to or loss or destruction of, or any interruption or cessation in the use of the Aircraft or any part thereof Leased Property by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(gG) any merger or liquidation of Lessee or any merger or consolidation of the Lessee or any Guarantor into or with any other corporation or partnership Person, or any sale, lease or transfer of any of the assets of Lessee or the any Guarantor to any other Person, except as otherwise expressly provided by Section 17;
(hH) any change in the ownership of the any shares of capital stock of Lessee or any Guarantor or any corporate change in Lessee or any Guarantor, except as otherwise expressly provided by Section 17;
(I) any recovery of judgment against Lessee, or by any levy of any writ or process of execution under any such judgment (except to the extent such recovery indefeasibly reduces the Liabilities);
(J) any legal characterization of the obligations created by the Lease and the other Operative Documents as a lease, a secured financing or otherwise;
(K) absence of any notice to, or knowledge of, Guarantors of the existence or occurrence of any of the foregoing clauses (A) through (J); or
(iL) any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing foregoing, and any other circumstance 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 GuarantorGuarantors (other than full and indefeasible payment and performance of all of the Liabilities or as otherwise expressly permitted by Section 17). The obligations of the Guarantor, Guarantors set forth herein constitute the full recourse obligations of the Guarantor Guarantors enforceable against it them on a joint and several basis to the full extent of all its their respective assets and properties, notwithstanding any provision in the Lease or any other agreement limiting Operative Documents. Each Guarantor waives any and all notice of the liability of Lessor creation, renewal, extension or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect accrual of any of the obligations guaranteed hereunder whether Liabilities and notice of or proof of reliance by any Beneficiary upon this Guaranty or acceptance of this Guaranty, and the Liabilities, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guaranty; provided that the foregoing shall not constitute a waiver of any notice specifically required to be given to such Guarantor by any Beneficiary under any of the Operative Documents. Each Guarantor is a party unconditionally waives, to the extent permitted by law: (a) acceptance of this Guaranty and proof of reliance by any Beneficiary hereon; (b) notice of any of the matters referred to in clauses (A) through (L) above (other than any notice specifically required to be given to such Guarantor by any Beneficiary under any of the Operative Documents), or any right to consent or assent to any thereof (except to the extent the consent of such Guarantor with respect thereto is specifically required under any of the Operative Documents); (c) all notices that may be required by statute, rule of law or otherwise, now or hereafter in effect, to preserve intact any rights against Guarantor, including, without limitation, any demand, presentment, protest, proof or notice of nonpayment under any Operative Document, and notice of default or any failure on the part of Lessee to perform and comply with any covenant, agreement, term or condition of any Operative Document (in any such case, other than any notice specifically required to be given to such Guarantor by any Beneficiary under any of the Operative Documents); (d) any right to the enforcement, assertion or exercise against Lessee of any right, power, privilege or remedy conferred in any Operative Document or otherwise; (e) any requirement of diligence on the part of any Person; (f) any requirement of any Beneficiary to take any action whatsoever, to exhaust any remedies or proceeding to mitigate the damages resulting from a default by any Person under any Operative Document; (g) any notice of any sale, transfer or other disposition by any Person of any right under, title to or interest in any Operative Document or the Leased Property; and (h) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge, release or defense of a guarantor or surety, or that might otherwise limit recourse against any Guarantor (other than full and indefeasible payment and performance of all of the Liabilities or as otherwise expressly permitted by Section 17). Each Guarantor agrees that this Guaranty shall be automatically reinstated if and to the extent that for any reason any payment under any Operative Document by or on behalf of itself or Lessee is rescinded or must be otherwise disgorged or restored by any Beneficiary whether as a result of any proceedings in bankruptcy or reorganization or otherwise. Each Guarantor further agrees that, without limiting the generality of this Guaranty, if an Event of Default shall have occurred and be continuing and any Beneficiary is prevented by Applicable Law from exercising its remedies under the Operative Documents, the Administrative Agent shall be entitled to receive hereunder from Guarantors, upon demand therefor, the sums which would have otherwise been due from Lessee to any such rulingBeneficiary had such remedies been exercised. Notwithstanding anything to the contrary herein, order nothing contained in this Section 2 shall (i) prevent the assertion by any Guarantor or judgment is issued Lessee of any claim such Person may have against any Beneficiary by separate suit or renderedproceedings or by compulsory counterclaim or (ii) constitute a waiver of any such claim, including, without limitation, any such claim arising from any breach or non-compliance by any Beneficiary of any Operative Document or any term of any instrument or agreement referred to in clause (A) of the first paragraph of this Section 2.
Appears in 3 contracts
Samples: Participation Agreement (Regeneron Pharmaceuticals Inc), Guaranty (Regeneron Pharmaceuticals Inc), Guaranty (Regeneron Pharmaceuticals Inc)
Guarantor’s Obligations Unconditional. The covenants and agreements obligations of the each Guarantor set forth herein under this Guaranty shall be primary obligations of the Guarantor, and such obligations shall be continuingprimary, absolute and unconditionalunconditional obligations of each Guarantor, shall not be subject to any counterclaim, setoffset-off, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the each Guarantor or any other Person may have against Lessor the Company or any other Person or otherwisePerson, and to the full extent permitted by applicable law shall remain in full force and effect without regard to, and except as provided in Section 9.7(b) of the Note Purchase Agreement, shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the each Guarantor or Lessee the Company shall have any knowledge or notice thereof) ), including, without limitation:
(a) any amendmenttermination, modification, addition, deletion, amendment or modification of or deletion from or addition or supplement or renewal to or other change in the Obligations, the Lease or any other Operative Document or any of the agreements referred to in any thereof, Note Documents or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to any of the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or Note Documents;
(b) any furnishing or acceptance of additional security for, guarantee ofany security, or right any release of offset with respect toany security, any of for the Obligations; , or the failure or release of any security or the failure of Lessor any Person to perfect or insure any interest in any collateral, including the Collateral;
(bc) any failure, omission or delay on the part of Lessee or Lessor the Company to conform or comply with any term of any of the Note Documents or any other instrument or agreement referred to in clause paragraph (a) above, including, without limitation, failure to give notice to any Guarantor of the occurrence of a “Default” or an “Event of Default” under any Note Document;
(cd) any waiver of the payment, performance or observance of any of the obligations, conditions, covenants or agreements contained in any Note Document, or any other waiver, consent, extension, indulgence, compromise, settlement, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset the Note Documents or security any other instrument or agreement referred to in clause paragraph (a) above or any obligation or liability of Lessee or Lessorthe Company, or any exercise or nonexercise by Lessor non-exercise of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset instrument or security agreement or any such obligation or liability;
(de) any failure, omission or delay on the part of any of the Holders to enforce, assert or exercise any right, power or remedy conferred on such Holder in this Guaranty, or any such failure, omission or delay on the part of such Holder in connection with any Note Document, or any other action on the part of such Holder;
(f) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, liquidation receivership, conservatorship, custodianship, liquidation, marshaling of assets and liabilities or similar proceeding proceedings with respect to Lesseethe Company, Lessor any Guarantor or to any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person trustee or receiver or by any court in any such proceeding;
(eg) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease Note Documents or any other agreement, instrument, guarantee agreement or security instrument referred to in clause paragraph (a) above or any term of any thereofhereof;
(fh) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Company or any Guarantor into or with any other corporation or partnership corporation, or any sale, lease or transfer of any of the assets of Lessee the Company or the any Guarantor to any other Person;
(hi) any change in the ownership of the any shares of capital stock of Lesseethe Company or any change in the corporate relationship between the Company and any Guarantor, or any termination of such relationship;
(j) any release or discharge, by operation of law, of any Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty; or
(ik) any other occurrence occurrence, circumstance, happening or circumstance event whatsoever, whether similar or dissimilar to the foregoing foregoing, whether foreseen or unforeseen, and any other circumstance that which might otherwise constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or that which might otherwise limit recourse against the any 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or rendered.
Appears in 3 contracts
Samples: Master Note Purchase Agreement (Hunt J B Transport Services Inc), Guaranty (Alliance Data Systems Corp), Note Purchase Agreement (Hunt J B Transport Services Inc)
Guarantor’s Obligations Unconditional. The covenants and ------------------------------------- agreements of the Guarantor set forth herein in this Guaranty shall be primary obligations of the Guarantor, and such obligations shall be continuing, absolute and unconditional, shall not be subject to any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, deferment or reduction or defense available to a surety or guarantor (other than full and strict compliance by the Guarantor with its expressed obligations hereunderhereunder and under the Participation Agreement or by Lessee under the Operative Documents to which it is a party), whether based upon any claim that Lessee or the Guarantor Lessee, Guarantor, or any other Person may have against Lessor any Beneficiary or any other Person or otherwise, and shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor or Lessee shall have any knowledge or notice thereof) including, without limitation:
(a) any amendment, modification, addition, deletion, supplement or renewal to or of or other change in the Obligations, including a change in the Lease amount of Rent, or any other Operative Document or any of the agreements Guaranty referred to in any thereof, or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to the AircraftEquipment, or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee of, guaranty of or right of offset with respect to, any of the Obligations; or the failure or release of any security or the failure of Lessor any Beneficiary to perfect or insure any interest in any collateral, including collateral (Guarantor acknowledges that the Collateral;
(b) any failure, omission or delay on Beneficiaries do not intend to have a perfected security interest in the part of Lessee or Lessor to conform or comply with any term of any instrument or agreement referred to in clause (a) aboveEquipment);
(c) any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guaranteeguaranty, right of offset or security referred to in clause ------ (a) above or any obligation or liability of Lessee or Lessorany Beneficiary, --- or any exercise or nonexercise non-exercise by Lessor any Beneficiary of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guaranteeguaranty, right of offset or security or any such obligation or liability;
(d) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to Lessee, Lessor or any other Person or any of their respective its properties or creditors, the imposition of any stay or injunction in connection with any such proceeding, including the automatic stay imposed by '362(a) of the Bankruptcy Code, or any action taken by any trustee, receiver, other Person trustee or receiver or by any court in any such proceeding;
(e) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease or any other agreement, instrument, guarantee or security referred to in clause (a) above or any term of any thereof;
(f) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Guarantor into or with any other corporation or partnership or any sale, lease or transfer of any of the assets of Lessee or the Guarantor to any other Person;
(h) any change in the ownership of the capital stock of Lessee; or
(i) any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing and any other circumstance 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or rendered.the
Appears in 3 contracts
Samples: Participation Agreement (Electric Lightwave Inc), Participation Agreement (Electric Lightwave Inc), Participation Agreement (Electric Lightwave Inc)
Guarantor’s Obligations Unconditional. The covenants and agreements obligations of the each Guarantor set forth herein under this Guaranty shall be primary obligations of the Guarantor, and such obligations shall be continuingprimary, absolute and unconditionalunconditional obligations of each Guarantor, shall not be subject to any counterclaim, setoffset-off, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the each Guarantor or any other Person person may have against Lessor the Company or any other Person or otherwiseperson, and to the full extent permitted by applicable law shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the each Guarantor or Lessee the Company shall have any knowledge or notice thereof) ), including, without limitation:
(a) any amendmenttermination, modification, addition, deletion, amendment or modification of or deletion from or addition or supplement or renewal to or other change in the Obligations, the Lease or any other Operative Document or any of the agreements referred to in any thereof, Note Documents or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to any of the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or Note Documents;
(b) any furnishing or acceptance of additional security for, guarantee ofany security, or right any release of offset with respect toany security, any of for the Obligations; , or the failure or release of any security or the failure of Lessor any person to perfect or insure any interest in any collateral, including the Collateral;
(bc) any failure, omission or delay on the part of Lessee the Company or Lessor the Parent to conform or comply with any term of any of the Note Documents or any other instrument or agreement referred to in clause paragraph (a) above, including, without limitation, failure to give notice to any Guarantor of the occurrence of a “Default” or an “Event of Default” under any Note Document;
(cd) any waiver of the payment, performance or observance of any of the obligations, conditions, covenants or agreements contained in any Note Document, or any other waiver, consent, extension, indulgence, compromise, settlement, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset the Note Documents or security any other instrument or agreement referred to in clause paragraph (a) above or any obligation or liability of Lessee the Company or Lessorthe Parent, or any exercise or nonexercise by Lessor non-exercise of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset instrument or security agreement or any such obligation or liability;
(de) any failure, omission or delay on the part of any of the Holders to enforce, assert or exercise any right, power or remedy conferred on such Holder in this Guaranty, or any such failure, omission or delay on the part of such Holder in connection with any Note Document, or any other action on the part of such Holder;
(f) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, liquidation receivership, conservatorship, custodianship, liquidation, marshaling of assets and liabilities or similar proceeding proceedings with respect to Lesseethe Company, Lessor the Parent, any Guarantor or to any other Person person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person trustee or receiver or by any court in any such proceeding;
(eg) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease Note Documents or any other agreement, instrument, guarantee agreement or security instrument referred to in clause paragraph (a) above or any term of any thereofhereof;
(fh) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Company or the Parent or any Guarantor into or with any other corporation or partnership corporation, or any sale, lease or transfer of any of the assets of Lessee the Company or the Parent or any Guarantor to any other Personperson;
(hi) any change in the ownership of the any shares of capital stock of Lesseethe Company or the Parent or any change in the corporate relationship between the Company or the Parent and any Guarantor, or any termination of such relationship;
(j) any release or discharge, by operation of law, of any other Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty; or
(ik) any other occurrence occurrence, circumstance, happening or circumstance event whatsoever, whether similar or dissimilar to the foregoing foregoing, whether foreseen or unforeseen, and any other circumstance that which might otherwise constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or that which might otherwise limit recourse against the any 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or rendered.
Appears in 3 contracts
Samples: Note Purchase Agreement (Donaldson Co Inc), Note Purchase Agreement (Donaldson Co Inc), Note Purchase Agreement (Donaldson Co Inc)
Guarantor’s Obligations Unconditional. The covenants and agreements obligations of the Guarantor set forth herein shall be primary under this Agreement are primary, absolute and unconditional obligations of the Guarantor, and such obligations shall be continuing, absolute and unconditional, shall are not be subject to any counterclaim, setoffset-off, deduction, diminution, abatement, recoupment, suspension, deferment, reduction deferment or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the Guarantor or any other Person person may have against Lessor the Factor, the Company or any other Person or otherwiseperson, and shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor or Lessee the Factor shall have any knowledge or notice thereof) ), including, without limitation:
(a) any amendment, modification, addition, deletion, supplement amendment of or renewal to or other change in the Obligations, the Lease or any other Operative Document or any of the agreements referred to in any thereofin, or any other instrument termination or agreement applicable to any Operative Document or any of the parties to such agreements, or to the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee waiver of, or right of offset with respect to, any of the Obligations; or the failure or release of any security or the failure of Lessor to perfect or insure any interest in any collateral, including the CollateralOperative Documents;
(b) any furnishing, acceptance or release of, or any defect in any security for, any of the Guaranteed Obligations;
(c) any failure, omission or delay on the part of Lessee or Lessor the Factor to conform or comply with any term of any of the Operative Documents or any other instrument or agreement referred to in clause paragraph (a) above;
(cd) any waiver of the payment, performance or observance of any of the obligations, conditions, covenants or agreements contained in any Operative Document, or any other waiver, consent, extension, indulgence, compromise, settlement, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset the Operative Documents or security any other instrument or agreement referred to in clause paragraph (a) above above;
(e) any failure, omission or any obligation delay on the part of the Company to enforce, assert or liability of Lessee or Lessor, or any exercise or nonexercise by Lessor of any right, remedy, power or privilege under or remedy conferred on it in respect of any such instrument, agreement, guarantee, right of offset or security or any such obligation or liabilitythis Agreement;
(df) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, liquidation receivership, conservatorship, custodianship, liquidation, marshalling of assets and liabilities or similar proceeding proceedings with respect to Lessee, Lessor the Factor or any other Person person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person trustee or receiver or by any court in any such proceeding;
(eg) any limitation on the liability or obligations of any Person under the Lease Factor or any other person under any of the Operative DocumentDocuments, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease Operative Documents or any other agreement, instrument, guarantee agreement or security instrument referred to in clause paragraph (a) above or any term of any thereofhereof;
(fh) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Factor or the Guarantor into or with any other corporation or partnership corporation, or any sale, lease or transfer of any of the assets of Lessee the Factor or the Guarantor to any other Personperson;
(hi) any change in the ownership of any limited liability company interests of the capital stock Factor, or any change in the equity ownership of Lesseethe Factor, or any termination of such ownership; or
(ij) any other occurrence occurrence, circumstance, happening or circumstance event whatsoever, whether similar or dissimilar to the foregoing foregoing, whether foreseen or unforeseen, and any other circumstance that which might otherwise constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or that which 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or rendered.,
Appears in 2 contracts
Samples: Interfactor and Subordination Agreement (Arbinet Thexchange Inc), Interfactor and Subordination Agreement (Arbinet Thexchange Inc)
Guarantor’s Obligations Unconditional. The covenants and agreements obligations of the each Guarantor set forth herein under this Guaranty shall be primary obligations of the Guarantor, and such obligations shall be continuingprimary, absolute and unconditionalunconditional obligations of each Guarantor, shall not be subject to any counterclaim, setoffset-off, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the each Guarantor or any other Person person may have against Lessor the Company or any other Person or otherwiseperson, and to the full extent permitted by applicable law shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the each Guarantor or Lessee the Company shall have any knowledge or notice thereof) ), including, without limitation:
(a) any amendmenttermination, modification, addition, deletion, amendment or modification of or deletion from or addition or supplement or renewal to or other change in the Obligations, the Lease or any other Operative Document or any of the agreements referred to in any thereof, Note Documents or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to any of the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or Note Documents;
(b) any furnishing or acceptance of additional security for, guarantee ofany security, or right any release of offset with respect toany security, any of for the Obligations; , or the failure or release of any security or the failure of Lessor any person to perfect or insure any interest in any collateral, including the Collateral;
(bc) any failure, omission or delay on the part of Lessee or Lessor the Company to conform or comply with any term of any of the Note Documents or any other instrument or agreement referred to in clause paragraph (a) above, including, without limitation, failure to give notice to any Guarantor of the occurrence of a “Default” or an “Event of Default” under any Note Document;
(cd) any waiver of the payment, performance or observance of any of the obligations, conditions, covenants or agreements contained in any Note Document, or any other waiver, consent, extension, indulgence, compromise, settlement, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset the Note Documents or security any other instrument or agreement referred to in clause paragraph (a) above or any obligation or liability of Lessee or Lessorthe Company, or any exercise or nonexercise by Lessor non-exercise of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset instrument or security agreement or any such obligation or liability;
(de) any failure, omission or delay on the part of any of the Holders to enforce, assert or exercise any right, power or remedy conferred on such Holder in this Guaranty, or any such failure, omission or delay on the part of such Holder in connection with any Note Document, or any other action on the part of such Holder;
(f) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, liquidation receivership, conservatorship, custodianship, liquidation, marshaling of assets and liabilities or similar proceeding proceedings with respect to Lesseethe Company, Lessor any Guarantor or to any other Person person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person trustee or receiver or by any court in any such proceeding;
(e) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease or any other agreement, instrument, guarantee or security referred to in clause (a) above or any term of any thereof;
(f) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Guarantor into or with any other corporation or partnership or any sale, lease or transfer of any of the assets of Lessee or the Guarantor to any other Person;
(h) any change in the ownership of the capital stock of Lessee; or
(i) any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing and any other circumstance 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or rendered.
Appears in 2 contracts
Samples: Note Purchase Agreement (Energizer Holdings Inc), Note Purchase Agreement (Pool Corp)
Guarantor’s Obligations Unconditional. The covenants and agreements obligations of the Guarantor set forth herein under this Guaranty shall be primary primary, absolute and unconditional obligations of the Guarantor, and such obligations shall be continuing, absolute and unconditional, shall not be subject to any counterclaim, setoffset-off, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the Guarantor or any other Person may have against Lessor the Borrower or any other Person or otherwisePerson, and to the full extent permitted by applicable law shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor or Lessee the Borrower shall have any knowledge or notice thereof) ), including, without limitation:
(a) any amendmenttermination, modification, addition, deletion, amendment or modification of or deletion from or addition or supplement or renewal to or other change in the ObligationsCredit Agreement, the Lease or any other Operative Document or any of the agreements referred to in any thereof, Loan Documents or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to any of the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or Loan Documents;
(b) any furnishing or acceptance of additional security for, guarantee ofany security, or right any release of offset with respect toany security, any of for the Guaranteed Obligations; , or the failure or release of any security or the failure of Lessor any Person to perfect or insure any interest in any collateral, including the Collateral;; 2
(bc) any failure, omission or delay on the part of Lessee or Lessor the Borrower to conform or comply with any term of any of the Loan Documents or any other instrument or agreement referred to in clause subsection (a) above, including, without limitation, failure to give notice to the Guarantor of the occurrence of a “Default” or an “Event of Default” under any Loan Document;
(cd) any waiver of the payment, performance or observance of any of the obligations, conditions, covenants or agreements contained in any Loan Document, or any other waiver, consent, extension, indulgence, compromise, settlement, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset the Loan Documents or security any other instrument or agreement referred to in clause subsection (a) above or any obligation or liability of Lessee or Lessorthe Borrower, or any exercise or nonexercise by Lessor non-exercise of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset instrument or security agreement or any such obligation or liability;
(de) any failure, omission or delay on the part of any of the Administrative Agent or the Lenders to enforce, assert or exercise any right, power or remedy conferred on the Administrative Agent or the Lenders in this Guaranty, or any such failure, omission or delay on the part of the Administrative Agent or the Lenders in connection with any Loan Document, or any other action on the part of the Administrative Agent or the Lenders;
(f) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, liquidation receivership, conservatorship, custodianship, liquidation, marshaling of assets and liabilities or similar proceeding proceedings with respect to Lesseethe Borrower, Lessor any Guarantor or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person trustee or receiver or by any court in any such proceeding;
(eg) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease Loan Documents or any other agreement, instrument, guarantee agreement or security instrument referred to in clause subsection (a) above or any term of any thereofhereof;
(fh) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Borrower or any Guarantor into or with any other corporation or partnership corporation, or any sale, lease or transfer of any of the assets of Lessee the Borrower or the any Guarantor to any other Person;
(hi) any change in the ownership of the any shares of capital stock of Lessee; orthe Borrower or any change in the corporate relationship between the Borrower and the Guarantor, or any termination of such relationship;
(ij) any release or discharge, by operation of law, of the Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty; or 3
(k) any other occurrence occurrence, circumstance, happening or circumstance event whatsoever, whether similar or dissimilar to the foregoing foregoing, whether foreseen or unforeseen, and any other circumstance that which might otherwise constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or that which 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or rendered.
Appears in 2 contracts
Samples: Credit Agreement (Arena Resources Inc), Credit Agreement (Arena Resources Inc)
Guarantor’s Obligations Unconditional. The covenants and agreements obligations of the Guarantor set forth herein hereunder shall be primary obligations of the Guarantor, unconditional and such obligations shall be continuing, absolute and unconditional, shall not be subject to any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the Guarantor or any other Person may have against Lessor or any other Person or otherwise, and shall remain in full force and effect without regard to, and shall notnot be affected or impaired by the following, to nor shall any of the fullest extent permitted by applicable laws, be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not following give the Guarantor any recourse or Lessee shall have any knowledge right of action against ERGS SC or notice thereof) including, without limitationthe Project Manager:
(a) any express or implied amendment, modification, addition, deletion, supplement or renewal to or other change in the Obligations, the Lease or any other Operative Document or any extension of the agreements referred to in any thereof, or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to the Aircraft, Ownership Agreement or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee of, or right of offset with respect to, any of the Obligations; or the failure or release of any security or the failure of Lessor to perfect or insure any interest in any collateral, including the Collateralprovision thereof;
(b) any failure, omission exercise or delay on non-exercise by ERGS SC or the part of Lessee or Lessor to conform or comply with any term Project Manager of any instrument right or agreement referred to in clause (a) aboveprivilege under this Guaranty or the Ownership Agreement;
(c) any waiver, consent, extension, indulgence, compromise, release assignment by ERGS SC or the Project Manager or other action or inaction under transfer by either, in whole or in respect part, of any instrument, agreement, guarantee, right of offset this Guaranty or security referred to in clause (a) above or any obligation or liability of Lessee or Lessor, or any exercise or nonexercise by Lessor of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset or security or any such obligation or liabilitythe Ownership Agreement;
(d) any bankruptcy, insolvency, reorganization, arrangementcomposition, readjustmentadjustment, compositiondissolution, liquidation or similar other like proceeding relating to the Guarantor or MGE Power, or any action taken with respect to Lesseethe Guaranty by any trustee or receiver or by any court, Lessor or any such proceeding, whether or not the Guarantor shall have had notice or knowledge of any of the foregoing;
(e) the existence of any claim, set-off or other rights which the Guarantor may have at any time against MGE Power, ERGS SC, the Project Manager or any other Person, whether in connection herewith or with any unrelated transactions, provided that nothing herein shall prevent the assertion, subject to Section 11, of any such claim by separate suit or compulsory counterclaim;
(f) any invalidity or unenforceability relating to or against MGE Power for any reason of the Ownership Agreement or any provision of applicable Law purporting to prohibit the payment by MGE Power of any amounts payable pursuant to the Ownership Agreement; or
(g) any other act or omission to act or delay of any kind by MGE Power, ERGS SC, the Project Manager or any other Person or any of their respective properties or creditorsother circumstance whatsoever which might, or any action taken by any trustee, receiver, other Person or court in any such proceeding;
(e) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security but for the Obligations or any other guarantee provisions of the Obligations or any reductionsthis paragraph, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease or any other agreement, instrument, guarantee or security referred to in clause (a) above or any term of any thereof;
(f) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Guarantor into or with any other corporation or partnership or any sale, lease or transfer of any of the assets of Lessee or the Guarantor to any other Person;
(h) any change in the ownership of the capital stock of Lessee; or
(i) any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing and any other circumstance 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 defense to the Guarantor. The ’s 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or renderedhereunder.
Appears in 2 contracts
Samples: Ownership Agreement (Mge Energy Inc), Ownership Agreement (Madison Gas & Electric Co)
Guarantor’s Obligations Unconditional. The covenants and agreements obligations of the each Guarantor set forth herein under this Guaranty shall be primary obligations of the Guarantor, and such obligations shall be continuingprimary, absolute and unconditionalunconditional obligations of each Guarantor, shall not be subject to any counterclaim, setoffset-off, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the each Guarantor or any other Person may have against Lessor the Company or any other Person or otherwisePerson, and to the full extent permitted by applicable law shall remain in full force and effect without regard to, and except as provided in Section 9.7(b) of the Note Purchase Agreement, shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever other than indefeasible payment in full of the Obligations (whether or not the each Guarantor or Lessee the Company shall have any knowledge or notice thereof) ), including, without limitation:
(a) any amendmenttermination, modification, addition, deletion, amendment or modification of or deletion from or addition or supplement or renewal to or other change in the Obligations, the Lease or any other Operative Document or any of the agreements referred to in any thereof, Note Documents or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to any of the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or Note Documents;
(b) any furnishing or acceptance of additional security for, guarantee ofany security, or right any release of offset with respect toany security, any of for the Obligations; , or the failure or release of any security or the failure of Lessor any Person to perfect or insure any interest in any collateral, including the Collateral;
(bc) any failure, omission or delay on the part of Lessee or Lessor the Company to conform or comply with any term of any of the Note Documents or any other instrument or agreement referred to in clause paragraph (a) above, including, without limitation, failure to give notice to any Guarantor of the occurrence of a “Default” or an “Event of Default” under any Note Document;
(cd) any waiver of the payment, performance or observance of any of the obligations, conditions, covenants or agreements contained in any Note Document, or any other waiver, consent, extension, indulgence, compromise, settlement, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset the Note Documents or security any other instrument or agreement referred to in clause paragraph (a) above or any obligation or liability of Lessee or Lessorthe Company, or any exercise or nonexercise by Lessor non-exercise of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset instrument or security agreement or any such obligation or liability;
(de) any failure, omission or delay on the part of any of the Holders to enforce, assert or exercise any right, power or remedy conferred on such Holder in this Guaranty, or any such failure, omission or delay on the part of such Holder in connection with any Note Document, or any other action on the part of such Holder;
(f) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, liquidation receivership, conservatorship, custodianship, liquidation, marshaling of assets and liabilities or similar proceeding proceedings with respect to Lesseethe Company, Lessor any Guarantor or to any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person trustee or receiver or by any court in any such proceeding;
(eg) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease Note Documents or any other agreement, instrument, guarantee agreement or security instrument referred to in clause paragraph (a) above or any term of any thereofhereof;
(fh) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Company or any Guarantor into or with any other corporation or partnership corporation, or any sale, lease or transfer of any of the assets of Lessee the Company or the any Guarantor to any other Person;
(hi) any change in the ownership of the any shares of capital stock of Lesseethe Company or any change in the corporate relationship between the Company and any Guarantor, or any termination of such relationship;
(j) any release or discharge, by operation of law, of any Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty; or
(ik) any other occurrence occurrence, circumstance, happening or circumstance event whatsoever, whether similar or dissimilar to the foregoing foregoing, whether foreseen or unforeseen, and any other circumstance that which might otherwise constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or that which might otherwise limit recourse against the any 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or rendered.
Appears in 2 contracts
Samples: Note Purchase Agreement (United Stationers Inc), Subsidiary Guaranty (United Stationers Inc)
Guarantor’s Obligations Unconditional. The covenants and agreements obligations of the Guarantor set forth herein under this Guaranty shall be primary obligations of the Guarantor, and such obligations shall be continuingprimary, absolute and unconditionalunconditional obligations of Guarantor, shall not be subject to any counterclaim, setoffset-off, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the Guarantor or any other Person person may have against Lessor the Issuer or any other Person or otherwiseperson, and to the full extent permitted by applicable law shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor or Lessee the Issuer shall have any knowledge or notice thereof) ), including, without limitation:
(a) any amendmenttermination, modification, addition, deletion, amendment or modification of or deletion from or addition or supplement or renewal to or other change in the Obligations, the Lease or any other Operative Document or any of the agreements referred to in any thereof, Note Documents or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to any of the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or Note Documents;
(b) any furnishing or acceptance of additional security for, guarantee ofany security, or right any release of offset with respect toany security, any of for the Obligations; , or the failure or release of any security or the failure of Lessor any person to perfect or insure any interest in any collateral, including the Collateral;
(bc) any failure, omission or delay on the part of Lessee or Lessor the Issuer to conform or comply with any term of any of the Note Documents or any other instrument or agreement referred to in clause paragraph (a) above, including, without limitation, failure to give notice to Guarantor of the occurrence of a “Default” or an “Event of Default” under any Note Document;
(cd) any waiver of the payment, performance or observance of any of the obligations, conditions, covenants or agreements contained in any Note Document, or any other waiver, consent, extension, indulgence, compromise, settlement, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset the Note Documents or security any other instrument or agreement referred to in clause paragraph (a) above or any obligation or liability of Lessee or Lessorthe Issuer, or any exercise or nonexercise by Lessor non-exercise of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset instrument or security agreement or any such obligation or liability;
(d) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to Lessee, Lessor or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person or court in any such proceeding;
(e) any limitation on the liability failure, omission or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease or any other agreement, instrument, guarantee or security referred to in clause (a) above or any term of any thereof;
(f) any defect in the title, compliance with specifications, 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 any part thereof by Lessee or any other Person for any reason whatsoever (including, without limitation, any governmental prohibition or restriction, condemnation, requisition, seizure or any other act delay on the part of any governmental of the Holders to enforce, assert or military authorityexercise any right, power or remedy conferred on such Holder in this Guaranty, or any act of God such failure, omission or of the public enemy) regardless of the duration thereof (even though such duration would otherwise constitute a frustration of a lease), whether or not resulting from accident and whether or not without fault delay on the part of Lessee such Holder in connection with any Note Document, or any other Personaction on the part of such Holder;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Guarantor into or with any other corporation or partnership or any sale, lease or transfer of any of the assets of Lessee or the Guarantor to any other Person;
(h) any change in the ownership of the capital stock of Lessee; or
(i) any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing and any other circumstance 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or rendered.
Appears in 2 contracts
Samples: Contribution Agreement (El Paso Pipeline Partners, L.P.), Note Purchase Agreement (El Paso Pipeline Partners, L.P.)
Guarantor’s Obligations Unconditional. (a) The covenants Guarantor hereby guarantees that the Obligations will be paid strictly in accordance with the terms of the Loan Documents to which the Company is a party and any other agreements and instruments relating to the Obligations, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Lender with respect thereto. The obligations and liabilities of the Guarantor set forth herein under this Guarantee shall be primary obligations absolute and unconditional irrespective of (x) any lack of value, validity, genuineness, regularity or enforceability of any of the Obligations, any of the Loan Documents, or any agreement or instrument relating thereto, (y) any substitution, exchange, release, amendment, or waiver of or consent to any departure from the terms, of any of the Obligations, Loan Documents or any guarantee of or security for all or any of the Obligations, and (z) to the fullest extent permitted by applicable law, irrespective of any other circumstance which might otherwise constitute a legal or equitable defense available to, or a discharge of, the Guarantor in respect of the Obligations or the Guarantor in respect of this Guarantee. Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of the following shall not alter, impair or release the liability of the Guarantor hereunder which shall remain absolute and unconditional as described above:
(i) at any time or from time to time, without notice to the Guarantor, and such obligations the time for any performance of or compliance with any of the Obligations shall be continuingextended, absolute and unconditional, or such performance or compliance shall not be subject to waived;
(ii) any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by of the Guarantor with its obligations hereunder), whether based upon acts mentioned in any claim that Lessee of the provisions of the Credit Agreement or the Guarantor Notes or any other Person may have against Lessor Loan Document shall be done, omitted or waived;
(iii) the maturity of any of the Obligations shall be accelerated;
(iv) any of the Obligations shall be modified, supplemented or amended in any respect, or any right or obligation under the Credit Agreement, the Notes, any other Person Loan Document, any guarantee of any of the Obligations or otherwiseany security therefor shall be waived, released or exchanged in whole or in part or otherwise dealt with; or
(v) any lien or security interest granted to, or in favor of, the Lender as security for any of the Obligations shall be amended or waived or shall fail to be perfected.
(b) This Guarantee is a continuing guarantee and shall remain in full force and effect without regard to, and shall not, to until (i) the fullest extent permitted by applicable laws, be released, discharged or payment in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor or Lessee shall have any knowledge or notice thereof) including, without limitation:
(a) any amendment, modification, addition, deletion, supplement or renewal to or other change in full of the Obligations, (ii) the Lease Lender shall have no commitment to make any Loan to the Company under the Credit Agreement, and (iii) the payment of all expenses to be paid by the Guarantor pursuant hereto.
(d) The Guarantor hereby consents that, without the necessity of any reservation of rights against the Guarantor and without notice to or further assent by the Guarantor, any other Operative Document or demand for payment of the Obligations made by the Lender may be rescinded by the Lender and any of the agreements referred to in any thereof, Obligations may be continued after such rescission.
(e) If claim is ever made upon the Lender for repayment or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to the Aircraft, or any assignment, mortgage or transfer thereof or recovery of any interest therein, amount or any furnishing amounts received by the Lender in payment or acceptance on account of additional security for, guarantee of, or right of offset with respect to, any of the Obligations; , and the Lender repays all or part of said amount by reason of (i) any judgment, decree or order of any Governmental Authority having jurisdiction over the Company or the failure or release of any security or the failure of Lessor to perfect or insure any interest in any collateral, including the Collateral;
(b) any failure, omission or delay on the part of Lessee or Lessor to conform or comply with any term of any instrument or agreement referred to in clause (a) above;
(c) any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset or security referred to in clause (a) above or any obligation or liability of Lessee or Lessor, or any exercise or nonexercise by Lessor of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset or security or any such obligation or liability;
(d) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to Lessee, Lessor or any other Person Guarantor or any of their respective properties properties, including without limitation any such judgment, decree or creditorsorder pursuant to the Federal Bankruptcy Code or similar insolvency laws, or (ii) any action taken by any trustee, receiver, other Person settlement or court in compromise of any such proceeding;
(e) claim, then and in such event the Guarantor agrees that any limitation on such judgment, decree, order, settlement or compromise shall be binding upon the liability Guarantor and, notwithstanding any termination hereof or obligations the cancellation of any Person under the Lease or any other Operative Document, the Obligations, any collateral security this Guarantee shall be reinstated and the Guarantor shall be and remain liable to the Lender hereunder for the Obligations amounts so repaid or recovered to the same extent as if such amount had never originally been received by the Lender. The Guarantor agrees that it will indemnify the Lender on demand for all costs and expenses (including reasonable actual attorneys fees and expenses) incurred by the Lender in connection with such claim, including any other guarantee such costs and expenses incurred in defending against any claim alleging that payments in account of the Obligations constituted a preference, fraudulent transfer or similar payment under any reductionsbankruptcy, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity insolvency or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease or any other agreement, instrument, guarantee or security referred to in clause (a) above or any term of any thereof;similar law affecting creditor's rights generally.
(f) any defect in the title, compliance with specifications, condition, design, operation or fitness for use of or any damage This Guarantee shall be enforceable as to or loss or destruction of, or any interruption or cessation in the use all of the Aircraft Obligations and expenses of collection thereof and hereof, despite the Company's discharge in bankruptcy or any part thereof by Lessee adjustment of debts, liabilities and obligations in insolvency proceedings 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Guarantor into or with any other corporation or partnership or any sale, lease or transfer of any of the assets of Lessee or the Guarantor pursuant to any other Person;
compromise with creditors. If an event permitting the acceleration of the maturity of the principal amount of the Obligations shall at any time have occurred and be continuing, and if such acceleration (hor any consequences thereof) any change provided for in the ownership Loan Documents shall at such time be prevented by reason of the capital stock pendency against the Company of Lessee; or
(i) any a case or proceeding under the Federal Bankruptcy Code or other occurrence or circumstance whatsoeverinsolvency law, whether similar or dissimilar the Guarantor agrees that, for purposes of this Guarantee and the Guarantor's obligations hereunder, the maturity of such principal amount shall be deemed to have been accelerated, with all attendant consequences as provided in the foregoing Loan Documents, as if such acceleration and any other circumstance that might otherwise constitute a legal or equitable defense or discharge consequences had been accomplished in accordance with the terms of the liabilities of a guarantor or surety or that might otherwise limit recourse against the Guarantor. The obligations of the GuarantorLoan Documents, set forth herein constitute the full recourse obligations of the Guarantor enforceable against it to the full extent of all its assets and properties, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of forthwith pay any of the obligations amounts guaranteed hereunder whether upon such acceleration, without further notice or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or rendereddemand.
Appears in 2 contracts
Guarantor’s Obligations Unconditional. The covenants and agreements of the Guarantor set forth herein in this Guaranty shall be direct and primary obligations of the Guarantor, Guarantor and such obligations shall be continuingabsolute, absolute irrevocable and unconditionalunconditional under any and all circumstances, shall not be subject to any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether under this Guaranty) based upon any claim that Lessee or the Guarantor or any other Person person may have against Lessor Seller or any other Person or otherwiseperson, and shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever the following (whether or not the Guarantor or Lessee Seller shall have any knowledge or notice thereof) including, without limitation:):
(a) any amendment, modification, addition, deletion, supplement or renewal to or other change in the Obligations, the Lease or any other Operative Document or any of the agreements referred to in any thereof, or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee of, or right of offset with respect to, any of the Obligations; or the failure or release of any security or the failure of Lessor to perfect or insure any interest in any collateral, including the Collateral;
(b) any failure, omission or delay on the part of Lessee or Lessor Seller to conform or comply with any term of any instrument or agreement referred to in clause (a) aboveof the Seller Agreements;
(c) any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset or security referred to in clause (a) above or any obligation or liability of Lessee or Lessor, or any exercise or nonexercise by Lessor of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset or security or any such obligation or liability;
(db) any bankruptcy, insolvency, reorganization, arrangement, readjustment, marshaling of assets and liabilities, composition, liquidation or similar proceeding with respect to Lessee, Lessor Seller or any other Person person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person trustee or receiver or by any court in any such proceeding;
(ec) any limitation on the liability termination or obligations dissolution of any Person under the Lease or any other Operative DocumentSeller, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease or any other agreement, instrument, guarantee or security referred to in clause (a) above or any term of any thereof;
(f) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Guarantor Seller into or with any other corporation or partnership Person, any reorganization of Seller or any sale, lease or transfer of all or any of the assets of Lessee or the Guarantor Seller to any other Person;
(h) any change in the ownership of the capital stock of Lessee; or
(id) any other occurrence change, direct or circumstance whatsoeverindirect, whether similar or dissimilar to the foregoing and any other circumstance 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect ownership of any shares of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or renderedcapital stock of Seller.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Hurco Companies Inc), Asset Purchase Agreement (Hurco Companies Inc)
Guarantor’s Obligations Unconditional. The covenants and agreements obligations of the Guarantor set forth herein under this Guaranty shall be primary primary, absolute and unconditional obligations of the Guarantor, and such obligations shall be continuing, absolute and unconditional, shall not be subject to any counterclaim, setoffset-off, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the Guarantor or any other Person person may have against Lessor the Company or any other Person or otherwiseperson, and to the full extent permitted by applicable law shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor or Lessee the Company shall have any knowledge or notice thereof) ), including, without limitation:
(a) any amendmenttermination, modification, addition, deletion, amendment or modification of or deletion from or addition or supplement or renewal to or other change in the Obligations, the Lease or any other Operative Document or any of the agreements referred to in any thereof, Note Documents or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to any of the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or Note Documents;
(b) any furnishing or acceptance of additional security for, guarantee ofany security, or right any release of offset with respect toany security, any of for the Obligations; , or the failure or release of any security or the failure of Lessor any person to perfect or insure any interest in any collateral, including the Collateral;
(bc) any failure, omission or delay on the part of Lessee or Lessor the Company to conform or comply with any term of any of the Note Documents or any other instrument or agreement referred to in clause paragraph (a) above, including, without limitation, failure to give notice to the Guarantor of the occurrence of a “Default” or an “Event of Default” under any Note Document;
(cd) any waiver of the payment, performance or observance of any of the obligations, conditions, covenants or agreements contained in any Note Document, or any other waiver, consent, extension, indulgence, compromise, settlement, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset the Note Documents or security any other instrument or agreement referred to in clause paragraph (a) above or any obligation or liability of Lessee or Lessorthe Company, or any exercise or nonexercise by Lessor non-exercise of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset instrument or security agreement or any such obligation or liability;
(de) any failure, omission or delay on the part of any of the Holders to enforce, assert or exercise any right, power or remedy conferred on such Holder in this Guaranty, or any such failure, omission or delay on the part of such Holder in connection with any Note Document, or any other action on the part of such Holder;
(f) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, liquidation receivership, conservatorship, custodianship, liquidation, marshaling of assets and liabilities or similar proceeding proceedings with respect to Lesseethe Company, Lessor the Guarantor or to any other Person person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person trustee or receiver or by any court in any such proceeding;
(eg) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease Note Documents or any other agreement, instrument, guarantee agreement or security instrument referred to in clause paragraph (a) above or any term of any thereofhereof;
(fh) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Company or the Guarantor into or with any other corporation or partnership corporation, or any sale, lease or transfer of any of the assets of Lessee the Company or the Guarantor to any other Personperson;
(hi) any change in the ownership of the any shares of capital stock of Lesseethe Company or any change in the corporate relationship between the Company and the Guarantor, or any termination of such relationship;
(j) any release or discharge, by operation of law, of any other guarantor from the performance or observance of any obligation, covenant or agreement contained in any other guarantee of the Note Documents or the Obligations; or
(ik) any other occurrence occurrence, circumstance, happening or circumstance event whatsoever, whether similar or dissimilar to the foregoing foregoing, whether foreseen or unforeseen, and any other circumstance that which might otherwise constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or that which 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or rendered.
Appears in 2 contracts
Samples: Note Purchase Agreement (Encore Wire Corp /De/), Note Purchase Agreement (Hunt J B Transport Services Inc)
Guarantor’s Obligations Unconditional. The covenants and agreements obligations of the each Guarantor set forth herein under this Guaranty shall be primary obligations of the Guarantor, and such obligations shall be continuingprimary, absolute and unconditionalunconditional obligations of each Guarantor, shall not be subject to any counterclaim, setoffset-off, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the each Guarantor or any other Person person may have against Lessor the Company or any other Person or otherwiseperson, and to the full extent permitted by applicable law shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the each Guarantor or Lessee the Company shall have any knowledge or notice thereof) ), including, without limitation:
(a) any amendmenttermination, modification, addition, deletion, amendment or modification of or deletion from or addition or supplement or renewal to or other change in the Obligations, the Lease or any other Operative Document or any of the agreements referred to in any thereof, Applicable Note Documents or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to any of the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or Applicable Note Documents;
(b) any furnishing or acceptance of additional security for, guarantee ofany security, or right any release of offset with respect toany security, any of for the Obligations; , or the failure or release of any security or the failure of Lessor any person to perfect or insure any interest in any collateral, including the Collateral;
(bc) any failure, omission or delay on the part of Lessee or Lessor the Company to conform or comply with any term of any of the Applicable Note Documents or any other instrument or agreement referred to in clause paragraph (a) above, including, without limitation, failure to give notice to any Guarantor of the occurrence of a “Default” or an “Event of Default” under any Applicable Note Document;
(cd) any waiver of the payment, performance or observance of any of the obligations, conditions, covenants or agreements contained in any Applicable Note Document, or any other waiver, consent, extension, indulgence, compromise, settlement, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset the Applicable Note Documents or security any other instrument or agreement referred to in clause paragraph (a) above or any obligation or liability of Lessee or Lessorthe Company, or any exercise or nonexercise by Lessor non-exercise of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset instrument or security agreement or any such obligation or liability;
(de) any failure, omission or delay on the part of any of the Holders to enforce, assert or exercise any right, power or remedy conferred on such Holder in this Guaranty, or any such failure, omission or delay on the part of such Holder in connection with any Applicable Note Document, or any other action on the part of such Holder;
(f) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, liquidation receivership, conservatorship, custodianship, liquidation, marshaling of assets and liabilities or similar proceeding proceedings with respect to Lesseethe Company, Lessor or any other Person Guarantor or to any other person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person trustee or receiver or by any court in any such proceeding;
(eg) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease Applicable Note Documents or any other agreement, instrument, guarantee agreement or security instrument referred to in clause paragraph (a) above or any term of any thereofhereof;
(fh) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Company or any Guarantor into or with any other corporation or partnership Person, or any sale, lease or transfer of any of the assets of Lessee the Company or the any Guarantor to any other Personperson;
(hi) any change in the ownership of any shares of Capital Stock of the capital stock Company or any change in the corporate relationship between the Company and any Guarantor, or any termination of Lesseesuch relationship;
(j) any release or discharge, by operation of law, of any other Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty; or
(ik) any other occurrence occurrence, circumstance, happening or circumstance event whatsoever, whether similar or dissimilar to the foregoing foregoing, whether foreseen or unforeseen, and any other circumstance that which might otherwise constitute a legal or equitable defense (other than the defense of payment) or discharge of the liabilities of a guarantor or surety or that which might otherwise limit recourse against the any 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or rendered.
Appears in 2 contracts
Samples: Subsidiary Guaranty (Tetra Technologies Inc), Subsidiary Guaranty (Tetra Technologies Inc)
Guarantor’s Obligations Unconditional. The covenants and agreements (a) Guarantor hereby guarantees that the Obligations will be paid strictly in accordance with the terms of the Loan Documents, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Agent, the L/C Issuer or the Lenders with respect thereto. Guarantor set forth herein shall agrees that its guarantee constitutes a guaranty of payment when due and not of collection and waives any right to require that any resort be primary made by the Agent, the L/C Issuer or the Lenders to any Collateral. The obligations of Guarantor under this Guaranty are independent of the Guarantorobligations under the Financing Agreement and the other Loan Documents, and such obligations shall a separate action or actions may be continuingbrought and prosecuted against Guarantor to enforce this Guaranty, absolute and unconditional, shall not be subject to irrespective of whether any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon action is brought against any claim that Lessee or the Guarantor Borrower or any other Person may have against Lessor Loan Party or whether any Borrower or any other Person Loan Party is joined in any such action. The liability of Guarantor hereunder shall be absolute and unconditional irrespective of: (i) any lack of validity or otherwiseenforceability of any Loan Document or any agreement or instrument relating thereto; (ii) any change in the time, manner or place of payment of, or in any other term in respect of, all or any of the Obligations, or any other amendment or waiver of or consent to any departure from any provision of any Loan Document (including the creation or existence of any Obligations in excess of the amount permitted by any lending formulas contained in the Loan Documents or the amount evidenced by the Loan Documents); (iii) any exchange or release of, or non-perfection of any Lien on or security interest in, any Collateral, or any release or amendment or waiver of or consent to any departure from any other guaranty, for all or any of the Obligations; (iv) the existence of any claim, set-off, defense or other right that Guarantor may have at any time against any Person, including, without limitation, the Agent, the L/C Issuer or any of the Lenders, or (v) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Borrower or any Loan Party in respect of the Obligations or Guarantor in respect hereof.
(b) This Guaranty (i) is a continuing guaranty and shall remain in full force and effect without regard tountil such date on which all of the Obligations and all other expenses to be paid by the Guarantor pursuant hereto shall have been Paid in Full after the Total Revolving Credit Commitment shall have been terminated and the Letters of Credit are cancelled or cash collateralized and (ii) shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment of any of the Obligations is rescinded or must otherwise be returned by the Agent, the L/C Issuer or any Lender, in connection with an Insolvency Proceeding with respect to a Borrower or otherwise, all as though such payment had not been made. As used herein, “Paid in Full” means the indefeasible, full and shall notfinal payment in cash, to in immediately available funds, of all the fullest extent permitted by applicable laws, be released, discharged or in any way affected by, any circumstance or condition whatsoever Obligations (whether or not the Guarantor or Lessee shall have any knowledge or notice thereof) including, without limitation:
(a) any amendment, modification, addition, deletion, supplement or renewal to or other change in the Obligations, the Lease or any other Operative Document or any of the agreements referred Obligations shall have been voided, disallowed or subordinated pursuant to any provision of the Bankruptcy Code, any applicable state fraudulent conveyance law, any other law in connection with an Insolvency Proceeding or otherwise) after (A) the termination of the Revolving Credit Commitments and (B) (1) the termination of all Letters of Credit and all Letter of Credit Guaranties or (2) the receipt by the Agent of cash collateral (or at the Agent’s option, a letter of credit issued for the account of the applicable Loan Parties and at the expense of the applicable Loan Parties, in form and substance satisfactory to the Agent, by an issuer acceptable to the Agent and payable to the Agent as beneficiary) in such amounts as the Agent determines are reasonably necessary to secure the Agent and the Lenders from loss, cost, damage or expense, including attorneys’ fees, costs and expenses, in connection with any thereofcontingent Obligations, including issued and outstanding Letters of Credit and Letter of Credit Guaranties and checks or other payments provisionally credited to the Obligations and/or as to which the Agent or any other instrument Lender has not yet received final and indefeasible payment. All Letters of Credit and Letter of Credit Guaranties shall be cash collateralized (or agreement applicable collateralized by such letter of credit) by an amount equal to any Operative Document or any one hundred four percent (104%) of the parties to such agreementsgreatest amount for which the Letters of Credit and Letter of Credit Guaranties then existing may be drawn, or to plus the Aircraft, or any assignment, mortgage or transfer thereof or amount of any interest therein, or any furnishing or acceptance of additional security for, guarantee of, or right of offset with respect to, any fees and expenses payable in connection therewith through the end of the Obligations; or the failure or release of any security or the failure of Lessor to perfect or insure any interest in any collateral, including the Collateral;
(b) any failure, omission or delay on the part of Lessee or Lessor to conform or comply with any term of any instrument or agreement referred to in clause (a) above;
(c) any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset or security referred to in clause (a) above or any obligation or liability of Lessee or Lessor, or any exercise or nonexercise by Lessor of any right, remedy, power or privilege under or in respect latest expiration date of any such instrumentLetters of Credit and Letter of Credit Guaranties. The expressions “prior payment in full”, agreement“payment in full”, guarantee, right of offset “paid or security or any such obligation or liability;
satisfied in full” and “paid in full” (d) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to Lessee, Lessor or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person or court in any such proceeding;
(e) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease or any other agreement, instrument, guarantee or security referred to in clause (a) above or any term of any thereof;
(f) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident such expressions are capitalized) and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Guarantor into or with any other corporation or partnership or any sale, lease or transfer of any of the assets of Lessee or the Guarantor to any other Person;
(h) any change in the ownership of the capital stock of Lessee; or
(i) any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing and any other circumstance 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein phrases shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or renderedhave correlative meanings.
Appears in 2 contracts
Samples: Financing Agreement (Frederick's of Hollywood Group Inc /Ny/), Financing Agreement (Movie Star Inc /Ny/)
Guarantor’s Obligations Unconditional. The covenants and agreements obligations of the Guarantor set forth herein under this Guaranty shall be primary primary, absolute and unconditional obligations of the Guarantor, and such obligations shall be continuing, absolute and unconditional, shall not be subject to any counterclaim, setoffset-off, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the Guarantor or any other Person may have against Lessor the Borrowers or any other Person or otherwisePerson, and to the full extent permitted by applicable law shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor or Lessee the Borrowers shall have any knowledge or notice thereof) ), including, without limitation:
(a) any amendmenttermination, modification, addition, deletion, amendment or modification of or deletion from or addition or supplement or renewal to or other change in the ObligationsCredit Agreement, the Lease or any other Operative Document or any of the agreements referred to in any thereof, Loan Documents or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to any of the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or Loan Documents;
(b) any furnishing or acceptance of additional security for, guarantee ofany security, or right any release of offset with respect toany security, any of for the Guaranteed Obligations; , or the failure or release of any security or the failure of Lessor any Person to perfect or insure any interest in any collateral, including the Collateral;
(bc) any failure, omission or delay on the part of Lessee or Lessor the Borrowers to conform or comply with any term of any of the Loan Documents or any other instrument or agreement referred to in clause subsection (a) above, including, without limitation, failure to give notice to the Guarantor of the occurrence of a "Default" or an "Event of Default" under any Loan Document;
(cd) any waiver of the payment, performance or observance of any of the obligations, conditions, covenants or agreements contained in any Loan Document, or any other waiver, consent, extension, indulgence, compromise, settlement, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset the Loan Documents or security any other instrument or agreement referred to in clause subsection (a) above or any obligation or liability of Lessee or Lessorthe Borrowers, or any exercise or nonexercise by Lessor non-exercise of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset instrument or security agreement or any such obligation or liability;
(de) any failure, omission or delay on the part of any of the Administrative Agent or the Lenders to enforce, assert or exercise any right, power or remedy conferred on the Administrative Agent or the Lenders in this Guaranty, or any such failure, omission or delay on the part of the Administrative Agent or the Lenders in connection with any Loan Document, or any other action on the part of the Administrative Agent or the Lenders;
(f) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, liquidation receivership, conservatorship, custodianship, liquidation, marshaling of assets and liabilities or similar proceeding proceedings with respect to Lesseethe Borrowers, Lessor any Guarantor or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person trustee or receiver or by any court in any such proceeding;
(eg) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease Loan Documents or any other agreement, instrument, guarantee agreement or security instrument referred to in clause subsection (a) above or any term of any thereofhereof;
(fh) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Borrowers or any Guarantor into or with any other corporation or partnership corporation, or any sale, lease or transfer of any of the assets of Lessee the Borrowers or the any Guarantor to any other Person;
(hi) any change in the ownership of the any shares of capital stock of Lesseethe Borrowers or any change in the corporate relationship between the Borrowers and the Guarantor, or any termination of such relationship;
(j) any release or discharge, by operation of law, of the Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty; or
(ik) any other occurrence occurrence, circumstance, happening or circumstance event whatsoever, whether similar or dissimilar to the foregoing foregoing, whether foreseen or unforeseen, and any other circumstance that which might otherwise constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or that which 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or rendered.
Appears in 2 contracts
Samples: Senior Credit Agreement (Unit Corp), Senior Credit Agreement (Unit Corp)
Guarantor’s Obligations Unconditional. The covenants Guarantor’s obligations hereunder are independent of Lessee’s obligations under the Lease and agreements the other Operative Documents or in respect of the Guarantor set forth herein shall be primary obligations of the Guarantorany other Person, and each Beneficiary may enforce any of its rights hereunder independently of any other right or remedy that it may at any time hold with respect to the Liabilities or any security or other guaranty therefor. To the extent permitted by Law, such obligations shall be continuing, absolute and unconditional, shall not be subject to any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by indefeasible payment and performance of all of the Guarantor with its obligations hereunderLiabilities), whether based upon any claim that Lessee or the Lessee, Guarantor or any other Person may have against Lessor any Beneficiary or any other Person or otherwise, and shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (other than full and indefeasible payment and performance of all of the Liabilities) (whether or not the Guarantor or Lessee any other Person shall have any knowledge or notice thereof) including, without limitation:
(aA) subject to the terms of the Lease and the other Operative Documents, any amendment, modification, addition, deletion, supplement or renewal to or of or other change in the Obligations, the Lease Liabilities or any other Operative Document or any of the agreements referred to in any thereof, or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to the AircraftLeased Property, or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional Norfolk Southern Corporation Guaranty security for, guarantee of, guaranty of or right of offset with respect to, any of the ObligationsLiabilities; or the failure or release of any security or the failure of Lessor any Beneficiary to perfect or insure any interest in any collateral, including the Collateral;
(bB) any failure, omission or delay on the part of Lessee Lessee, any Beneficiary or Lessor any other Person to conform or comply with any term of any instrument or agreement referred to in clause (aA) above;
(cC) any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guaranteeguaranty, right of offset or security referred to in clause (aA) above or any obligation or liability of Lessee or Lessorany Beneficiary or any other Person, or any exercise or nonexercise non-exercise by Lessor any Beneficiary or any other Person of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guaranteeguaranty, right of offset or security or any such obligation or liability;
(dD) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to Lessee, Lessor Lessee or any Beneficiary or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person receiver or court in any such proceeding;
(eE) any limitation on the liability or obligations of any Person (including, without limitation, Lessee) under the Lease or any other Operative Document, the ObligationsLiabilities, any collateral security for the Obligations Liabilities, any other guaranty of the Liabilities or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease foregoing or any other agreement, instrument, guarantee guaranty or security referred to in clause (aA) above or any term of any thereof;
(fF) any defect in the title, compliance with specifications, condition, design, operation or fitness for use of of, or any damage to or loss or destruction of, or any interruption or cessation in the use of the Aircraft or any part thereof Leased Property by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(gG) any merger or liquidation of Lessee or any merger or consolidation of the Lessee or Guarantor into or with any other corporation or partnership Person, or any sale, lease or transfer of any of the assets of Lessee or the Guarantor to any other Person;
(hH) any change in the ownership of the any shares of capital stock of Lessee or Guarantor or any corporate change in Lessee or Guarantor; Norfolk Southern Corporation Guaranty
(I) any recovery of judgment against Lessee, or by any levy of any writ or process of execution under any such judgment (except to the extent such recovery indefeasibly reduces the Liabilities);
(J) any legal characterization of the obligations created by the Lease and the other Operative Documents as a lease, a secured financing or otherwise;
(K) absence of any notice to, or knowledge of, Guarantor of the existence or occurrence of any of the foregoing clauses (A) through (J); or
(iL) any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing foregoing, and any other circumstance 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, 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, notwithstanding any provision in the Lease or any other agreement limiting Operative Documents. Guarantor waives any and all notice of the liability of Lessor creation, renewal, extension or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect accrual of any of the obligations guaranteed hereunder whether Liabilities and notice of or not proof of reliance by any Beneficiary upon this Guaranty or acceptance of this Guaranty, and the Liabilities, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guaranty. Guarantor is a party unconditionally waives, to the extent permitted by law: (a) acceptance of this Guaranty and proof of reliance by any Beneficiary hereon; (b) notice of any of the matters referred to in clauses (A) through (L) above, or any right to consent or assent to any thereof; (c) all notices that may be required by statute, rule of law or otherwise, now or hereafter in effect, to preserve intact any rights against Guarantor, including, without limitation, any demand, presentment, protest, proof or notice of nonpayment under any Operative Document, and notice of default or any failure on the part of Lessee to perform and comply with any covenant, agreement, term or condition of any Operative Document; (d) any right to the enforcement, assertion or exercise against Lessee of any right, power, privilege or remedy conferred in any Operative Document or otherwise; (e) any requirement of diligence on the part of any Person; (f) any requirement of any Beneficiary to take any action whatsoever, to exhaust any remedies or proceeding to mitigate the damages resulting from a default by any Person under any Operative Document; (g) any notice of any sale, transfer or other disposition by any Person of any right under, title to or interest in any Operative Document or the Leased Property; and (h) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge, release or defense of a guarantor or surety, or that might otherwise limit recourse against Guarantor. Guarantor agrees that this Guaranty shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of itself or Lessee is rescinded or must be otherwise restored by any Beneficiary whether as a result of any proceedings in bankruptcy or reorganization or otherwise. Norfolk Southern Corporation Guaranty Guarantor further agrees that, without limiting the generality of this Guaranty, if an Event of Default shall have occurred and be continuing and any Beneficiary is prevented by Applicable Law from exercising its remedies under the Operative Documents, such Beneficiary shall be entitled to receive hereunder from Guarantor, upon demand therefor, the sums which would have otherwise been due from Lessee had such ruling, order or judgment is issued or renderedremedies been exercised.
Appears in 1 contract
Samples: Guaranty (Norfolk Southern Corp)
Guarantor’s Obligations Unconditional. The covenants and agreements of the each Guarantor set forth herein in this Guaranty shall be primary obligations of the such Guarantor, and such obligations shall be continuing, absolute and unconditional, shall not be subject to any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the Guarantor Borrower or any other Person may have against Lessor the Agent, any Lender or any other Person or otherwise, and shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the any Guarantor or Lessee Borrower shall have any knowledge or notice thereof) including, without limitation:
(a) A. any amendment, modification, addition, deletion, supplement or renewal to or of or other change in the Obligations, Liabilities or this Agreement or the Lease Other Documents or any other Operative Document related instrument or any of the agreements referred to in any thereofagreement, or any other instrument or agreement applicable to any Operative Document thereto or any of the parties to such agreements, or to the Aircraft, or any assignment, mortgage or transfer thereof or of any interest thereincollateral, or any furnishing or acceptance of additional security for, guarantee of, guaranty of or right of offset with respect to, any of the ObligationsLiabilities; or the failure or release of any security or the failure of Lessor the Agent or any Lender to perfect or insure any interest in any collateral, including the Collateral;
(b) B. any failure, omission or delay on the part of Lessee any Credit Party, the Agent or Lessor any Lender to conform or comply with any term of any instrument or agreement referred to in clause (aA) above;
(c) C. any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guaranteeguaranty, right of offset or security referred to in clause (aA) above or any obligation or liability of Lessee any Credit Party, the Agent or Lessorany Lender, or any exercise or nonexercise non-exercise by Lessor the Agent or any Lender of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guaranteeguaranty, right of offset or security or any such obligation or liability;
(d) D. any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to Lesseeany Credit Party, Lessor the Agent, any Lender or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person trustee or receiver or by any court in any such proceeding;
(e) E. any limitation on the liability or obligations of any Person under the Lease Loan Documents or any other Operative Documentrelated instrument or agreement, the ObligationsLiabilities, any collateral security for the Obligations Liabilities or any other guarantee guaranty of the Obligations Liabilities or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease or any other agreement, instrument, guarantee guaranty or security referred to in clause (aA) above or any term of any thereof;
(f) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or F. any merger or consolidation of the Borrower or any Guarantor into or with any other corporation or partnership Person or any sale, lease or transfer of any of the assets of Lessee Borrower or the any Guarantor to any other Person;
(h) G. any change in the ownership of any of the capital stock equity interests of LesseeBorrower, Parent Company or any Guarantor or any corporate change in Borrower, Parent Company or any Guarantor; or
(i) H. any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing and any other circumstance 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 a Guarantor. The obligations of the Guarantor, each Guarantor set forth herein constitute the full recourse obligations of the Guarantor such Guarantor, enforceable against it to the full extent of all its assets and properties. Each Guarantor waives any and all notice of the creation, notwithstanding any provision in the Lease renewal, extension or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect accrual of any of the obligations guaranteed hereunder whether Liabilities and notice of or proof of reliance by the Agent and the Lenders upon this Guaranty or acceptance of this Guaranty, and the Liabilities, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guaranty. Each Guarantor unconditionally waives, to the extent permitted by law: (a) acceptance of this Guaranty and proof of reliance by the Agent and the Lenders hereon; (b) notice of any of the matters referred to in the foregoing clauses A through H hereof, or any right to consent or assent to any thereof; (c) all notices that may be required by statute, rule of law or otherwise, now or hereafter in effect, to preserve intact any rights against Guarantor, including without limitation, any demand, presentment, protest, proof or notice of nonpayment under this Agreement or any Other Document or any related instrument or agreement, and notice of default or any failure on the part of any Credit Party to perform and comply with any covenant, agreement, term or condition of this Agreement, any Other Document or any related instrument or agreement; (d) any right to the enforcement, assertion or exercise against any Credit Party of any right, power, privilege or remedy conferred in this Agreement, any Other Document or any related instrument or agreement or otherwise; (e) any requirement of diligence on the part of any Person; (f) any requirement of the Agent or any Lender to take any action whatsoever, to exhaust any remedies or to mitigate the damages resulting from a default under this Agreement, any Other Document or any related instrument or agreement; (g) any notice of any sale, transfer or other disposition by any Person of any right under, title to or interest in this Agreement, any Other Document or any related instrument or agreement relating thereto or any collateral for the Liabilities; and (h) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge, release or defense of a guarantor or surety, or that might otherwise limit recourse against a Guarantor. Without limiting the foregoing, each Guarantor hereby absolutely, unconditionally and irrevocably waives and agrees not to assert or take advantage of any defense based upon an election of remedies by the Agent or any Lender, including an election to proceed by non-judicial rather than judicial foreclosure, which destroys or impairs any right of subrogation of such Guarantor or the right of such Guarantor to proceed against any Person for reimbursement or both. Each Guarantor agrees that this Guaranty shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of Borrower or any other Guarantor is rescinded or must be otherwise restored by the Agent or any Lender, whether as a party result of any proceedings in bankruptcy or reorganization or otherwise. Each Guarantor further agrees that, without limiting the generality of this Guaranty, if an Event of Default shall have occurred and be continuing and the Agent or any Lender is prevented by applicable law from exercising its remedies under the Loan Documents, the Agent and the Lenders shall be entitled to receive hereunder from each Guarantor, upon demand therefor, the sums which would have otherwise been due from Borrower had such remedies been exercised. Notwithstanding anything herein to the action contrary, nothing in this Section 14.2 shall limit the provisions of Section 16.18 or proceeding the rights and limitations of 1986 Trust or Wilmington Trust Company, as owner trustee thereof, set forth in which the documents relating to such ruling, order or judgment is issued or renderedtrust.
Appears in 1 contract
Samples: Credit, Guaranty and Security Agreement (Evergreen International Aviation Inc)
Guarantor’s Obligations Unconditional. The covenants and agreements obligations of the Guarantor set forth herein shall be primary under this Guaranty are absolute and unconditional obligations of the Guarantor, and such obligations shall be continuing, absolute and unconditional, shall not be subject to any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the Guarantor or any other Person may have against Lessor or any other Person or otherwise, and shall remain in full force and effect without regard to, and shall not, to not be released or discharged by any of the fullest extent permitted by applicable laws, be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor or Lessee shall have any knowledge or notice thereof) including, without limitationfollowing:
(a) any amendment, modification, addition, deletion, supplement amendment of or renewal to or other change in the Obligations, the Lease or any other Operative Document or any of the agreements referred to in any thereofin, or any other instrument termination or agreement applicable to any Operative Document or any of the parties to such agreements, or to the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee waiver of, or right of offset with respect to, any of the Obligations; or the failure or release of any security or the failure of Lessor to perfect or insure any interest in any collateral, including the CollateralTransaction Agreements;
(b) any furnishing, acceptance or release of, or any defect in any security for, any of the Guaranteed Obligations;
(c) any failure, omission or delay on the part of Lessee or Lessor a Seller Party to conform or comply with any term of any instrument or agreement referred to in clause (a) aboveof the Transaction Agreements;
(cd) any waiver of the payment, performance or observance of any of the obligations, conditions, covenants or agreements contained in any Transaction Agreement, or any other waiver, consent, extension, indulgence, compromise, settlement, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset or security referred to in clause the Transaction Agreements;
(ae) above any acceptance by Buyer or any obligation of its Affiliates of partial payment or liability performance by a Seller Party;
(f) any failure, omission or delay on the part of Lessee Buyer to enforce, assert or Lessor, or any exercise or nonexercise by Lessor of any right, remedy, power or privilege under or remedy conferred on it in respect of any such instrument, agreement, guarantee, right of offset or security or any such obligation or liabilitythis Guaranty;
(dg) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustmentassignment for the benefit of creditors, compositionreceivership, liquidation conservatorship, custodianship, liquidation, marshalling of assets and liabilities or similar proceeding proceedings with respect to Lessee, Lessor any Seller Party or any other Person person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person trustee or receiver or by any court in any such proceeding;
(eh) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease Transaction Agreements or any other agreement, instrument, guarantee agreement or security instrument referred to in clause paragraph (a) above or any term of any thereofhereof;
(fi) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of any Seller Party or the Guarantor into or with any other corporation or partnership other entity, or any sale, lease or transfer of any of the assets of Lessee any Seller Party or the Guarantor to any other Personperson;
(hj) any change in the ownership of the any shares of capital stock of Lesseeany Seller Party or the Guarantor, or any change in the corporate relationship between any Seller Party and the Guarantor, or any termination of such relationship; or
(ik) any other occurrence occurrence, circumstance, happening or circumstance event whatsoever, whether similar or dissimilar to the foregoing foregoing, whether foreseen or unforeseen, and any other circumstance that which 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 Notwithstanding anything to the contrary set forth herein, except as provided in the second to last sentence of this paragraph: (x) the Guarantor shall not be obligated to pay or perform any Guaranteed Obligation of a Seller Party to the extent that such Seller Party is not required to pay or perform such Guaranteed Obligation as a result of any right or offset, counterclaim or other defense available to such Seller Party with respect to such Guaranteed Obligation in accordance with the provisions of the GuarantorTransaction Agreement under which such Guaranteed Obligation arises (collectively, set forth herein constitute a “Seller Party Defense”); and (y) the full recourse obligations of the Guarantor enforceable against it to the full extent of all its assets and properties, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound entitled to assert any Seller Party Defense to the same extent that any such Seller Party Defense could be asserted by each and every rulinga Seller Party in any action brought by Buyer to enforce a Guaranteed Obligation against such Seller Party, order and judgment obtained except for any Seller Party Defense asserted by Lessor a Seller Party in respect connection with an action brought by Buyer against a Seller Party to enforce a Guaranteed Obligation which Seller Party Defense has been finally adjudicated in favor of Buyer. In no event shall any stay or discharge or other impairment of or limitation on any Guaranteed Obligation as the result of any of the obligations guaranteed hereunder whether bankruptcy, insolvency, liquidation or not other like proceeding relating to a Seller Party or any action taken with respect to any Transaction Agreement by any trustee or receiver, or by any court, in any such proceeding, give rise to any defense to payment or performance by the Guarantor is a party hereunder. For purposes of this paragraph, the term “Seller Party” shall not be deemed to include the action or proceeding in which such ruling, order or judgment is issued or renderedGuarantor.
Appears in 1 contract
Samples: Guaranty (Allstate Corp)
Guarantor’s Obligations Unconditional. The covenants Guarantors' obligations hereunder are independent in respect of any other Person, and agreements each Beneficiary may enforce any of its rights hereunder independently of any other right or remedy that it may at any time hold with respect to the Liabilities or any security or other guaranty therefor; provided that no double recovery of the Guarantor set forth herein same amount shall be primary obligations of the Guarantor, and such permitted. Such obligations shall be continuing, absolute and unconditional, shall not be subject to any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor Guarantors with its their obligations hereunder), whether based upon any claim that Lessee or the Guarantor Lessor, Lessee, Agent, any Beneficiary or any other Person may have against Lessor any Beneficiary or any other Person or otherwise, and shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor Guarantors or Lessee any other Person shall have any knowledge or notice thereof) including, without limitation:
(a) A. any amendment, modification, addition, deletion, supplement or renewal to or of or other change in the Obligations, the Lease Liabilities or any other Operative Document or any of the agreements referred to in any thereof, or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to the AircraftSites, or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee of, guaranty of or right of offset with respect to, any of the ObligationsLiabilities; or the failure or release of any security or the Guaranty failure of Lessor any Beneficiary to perfect or insure any interest in any collateral, including the Collateral;
(b) B. any failure, omission or delay on the part of Lessee Lessor or Lessor any Beneficiary to conform or comply with any term of any instrument or agreement referred to in clause (aA) above;
(c) C. any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guaranteeguaranty, right of offset or security referred to in clause (aA) above or any obligation or liability of Lessee Lessor or Lessorany Beneficiary, or any exercise or nonexercise non-exercise by Lessor any Beneficiary of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guaranteeguaranty, right of offset or security or any such obligation or liability;
(d) D. any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to Lessee, Lessor or any Beneficiary or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person receiver or court in any such proceeding;
(e) E. any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the ObligationsLiabilities, any collateral security for the Obligations Liabilities, any other guaranty of the Liabilities or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease foregoing or any other agreement, instrument, guarantee guaranty or security referred to in clause (aA) above or any term of any thereof;
(f) F. any defect in the title, compliance with specifications, condition, design, operation or fitness for use of of, or any damage to or loss or destruction of, or any interruption or cessation in the use of the Aircraft or any part thereof Sites by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Guarantor into or with any other corporation or partnership or any sale, lease or transfer of any of the assets of Lessee or the Guarantor to any other Person;
(h) any change in the ownership of the capital stock of Lessee; or
(i) any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing and any other circumstance 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or rendered.not
Appears in 1 contract
Samples: Guaranty and Agreement of Suretyship (Genesis Health Ventures Inc /Pa)
Guarantor’s Obligations Unconditional. The covenants and agreements obligations of the each Guarantor set forth herein under this Guaranty shall be primary obligations of the Guarantor, and such obligations shall be continuingprimary, absolute and unconditionalunconditional obligations of each Guarantor, shall not be subject to any counterclaim, setoffset-off, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the each Guarantor or any other Person person may have against Lessor the Company or any other Person or otherwiseperson, and to the full extent permitted by applicable law shall remain in full force and effect without regard to, and except as provided in Section 9.7(c) of the Note Purchase Agreement, shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the each Guarantor or Lessee the Company shall have any knowledge or notice thereof) ), including, without limitation:
(a) any amendmenttermination, modification, addition, deletion, amendment or modification of or deletion from or addition or supplement or renewal to or other change in the Obligations, the Lease or any other Operative Document or any of the agreements referred to in any thereof, Note Documents or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to any of the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or Note Documents;
(b) any furnishing or acceptance of additional security for, guarantee ofany security, or right any release of offset with respect toany security, any of for the Obligations; , or the failure or release of any security or the failure of Lessor any person to perfect or insure any interest in any collateral, including the Collateral;
(bc) any failure, omission or delay on the part of Lessee or Lessor the Company to conform or comply with any term of any of the Note Documents or any other instrument or agreement referred to in clause paragraph (a) above, including, without limitation, failure to give notice to any Guarantor of the occurrence of a “Default” or an “Event of Default” under any Note Document;
(cd) any waiver of the payment, performance or observance of any of the obligations, conditions, covenants or agreements contained in any Note Document, or any other waiver, consent, extension, indulgence, compromise, settlement, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset the Note Documents or security any other instrument or agreement referred to in clause paragraph (a) above or any obligation or liability of Lessee or Lessorthe Company, or any exercise or nonexercise by Lessor non-exercise of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset instrument or security agreement or any such obligation or liability;
(de) any failure, omission or delay on the part of any of the Holders to enforce, assert or exercise any right, power or remedy conferred on such Holder in this Guaranty, or any such failure, omission or delay on the part of such Holder in connection with any Note Document, or any other action on the part of such Holder;
(f) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, liquidation receivership, conservatorship, custodianship, liquidation, marshaling of assets and liabilities or similar proceeding proceedings with respect to Lesseethe Company, Lessor any Guarantor or to any other Person person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person trustee or receiver or by any court in any such proceeding;
(e) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease or any other agreement, instrument, guarantee or security referred to in clause (a) above or any term of any thereof;
(f) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Guarantor into or with any other corporation or partnership or any sale, lease or transfer of any of the assets of Lessee or the Guarantor to any other Person;
(h) any change in the ownership of the capital stock of Lessee; or
(i) any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing and any other circumstance 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or rendered.
Appears in 1 contract
Samples: Master Note Purchase Agreement (Ultra Petroleum Corp)
Guarantor’s Obligations Unconditional. The covenants and agreements Each Guarantor hereby guarantees that the Obligations will be paid strictly in accordance with the terms of the Guarantor set forth herein shall be primary Loan Documents to which the Borrowers are a party, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Administrative Agent or the Lenders with respect thereto. The obligations of the GuarantorGuarantors under this Guaranty are independent of the obligations of the Borrowers under the Loan Agreement and the other Loan Documents, and a separate action or actions may be brought and prosecuted against each Guarantor to enforce this Guaranty, irrespective of whether any action is brought against the Borrowers or whether the Borrowers are joined in any such obligations action. The liability of the Guarantors hereunder shall be continuing, absolute and unconditional, shall not be subject to unconditional irrespective of: (i) any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction lack of validity or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon enforceability of any claim that Lessee or the Guarantor Loan Document or any other Person may have against Lessor agreement or instrument relating thereto; (ii) any other Person change in the time, manner or otherwiseplace of payment of, and shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, be released, discharged or in any way affected byother term in respect of, any circumstance or condition whatsoever (whether or not the Guarantor or Lessee shall have any knowledge or notice thereof) including, without limitation:
(a) any amendment, modification, addition, deletion, supplement or renewal to or other change in the Obligations, the Lease or any other Operative Document all or any of the agreements referred to in any thereofObligations, or any other instrument amendment or agreement applicable waiver of or consent to any Operative departure from any Loan Document or any of the parties to such agreements, or to the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee of, or right of offset with respect to, any of the Obligations; or the failure or release of any security or the failure of Lessor to perfect or insure any interest in any collateral, including the Collateral;
(b) any failure, omission or delay on the part of Lessee or Lessor to conform or comply with any term of any instrument or agreement referred to in clause (a) above;
(c) any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset or security referred to in clause (a) above or any obligation or liability of Lessee or Lessor, or any exercise or nonexercise by Lessor of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset or security or any such obligation or liability;
(d) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to Lessee, Lessor or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person or court in any such proceeding;
(e) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease or any other agreement, instrument, guarantee or security referred to in clause (a) above or any term of any thereof;
(f) any defect in the title, compliance with specifications, 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 any part thereof by Lessee or any other Person for any reason whatsoever (including, without limitation, any governmental prohibition increase in the obligations of the Borrowers resulting from the extension of additional credit to the Borrowers or restrictionotherwise); (iii) any exchange or release of, condemnation, requisition, seizure or any other act on the part non-perfection of any governmental lien on or military authoritysecurity interest in, any collateral, or any act release or amendment or waiver of God or of the public enemy) regardless of the duration thereof (even though such duration would otherwise constitute a frustration of a lease), whether or not resulting consent to any departure from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger guaranty, for all or liquidation of Lessee or any merger or consolidation of the Guarantor into or with any other corporation or partnership or any sale, lease or transfer of any of the assets Obligations; (iv) the existence of Lessee any claim, set-off, defense or other right that any Guarantor may have at any time against any Person, including, without limitation, the Guarantor to Administrative Agent or any other Person;
(h) any change in the ownership of the capital stock of LesseeLenders; or
or (iv) any other occurrence circumstance (other than the indefeasible payment or circumstance whatsoever, whether similar or dissimilar to performance in full of the foregoing and any other circumstance that Obligations) which might otherwise constitute a legal defense available to, or equitable defense or a discharge of the liabilities of a guarantor or surety or that might otherwise limit recourse against the Guarantor. The obligations of the Guarantorof, set forth herein constitute the full recourse obligations of the Guarantor enforceable against it to the full extent of all its assets and properties, notwithstanding any provision in the Lease either Borrower or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor guarantor in respect of any of the obligations guaranteed hereunder whether Obligations or not the such Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or renderedrespect hereof.
Appears in 1 contract
Samples: Loan Agreement (Inamed Corp)
Guarantor’s Obligations Unconditional. (a) The covenants Guarantor hereby guarantees that the Obligations will be paid strictly in accordance with the terms of the Loan Documents to which the Companies are a party, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Agent or the Lenders with respect thereto. The Guarantor agrees that its guarantee constitutes a guaranty of payment when due and agreements not of collection, and waives any right to require that any resort be made by the Agent or the Lenders to any Collateral. The obligations of the Guarantor set forth herein under this Guaranty are independent of the obligations under the Credit Agreement and the other Loan Documents, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Guaranty, irrespective of whether any action is brought against the Companies or whether the Companies are joined in any such action. The liability of the Guarantor hereunder shall be primary obligations of the Guarantor, and such obligations shall be continuing, absolute and unconditional, shall not be subject irrespective of (i) any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto; (ii) any extension or change in the time, manner or place of payment of, or in any other term in respect of, all or any of the Obligations (including, without limitation, any extension for longer than the original period), or any other amendment or waiver of or consent to any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (departure from any provision of any Loan Document other than full and strict compliance this Guaranty (including the creation or existence of any Obligations in excess of the amount permitted by any lending formulas contained in the Loan Documents or the amount evidenced by the Loan Documents); (iii) any exchange or release of, or non-perfection of any lien on or security interest in, any Collateral, or any release or amendment or waiver of or consent to any departure from any other guaranty, for all or any of the Obligations; (iv) the existence of any claim, set-off, defense or other right that the Guarantor with its obligations hereunder)may have against any Person, whether based upon including, without limitation, the Agent or the Lenders, or (v) any claim that Lessee other circumstance which might otherwise constitute a defense available to, or a discharge of, the Companies or any other guarantor in respect of the Obligations or the Guarantor or any other Person may have against Lessor or any other Person or otherwise, in respect hereof.
(b) This Guaranty (i) is a continuing guaranty and shall remain in full force and effect without regard tountil such date on which the Loans, and shall not, to the fullest extent permitted by applicable laws, be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor or Lessee shall have any knowledge or notice thereof) including, without limitation:
(a) any amendment, modification, addition, deletion, supplement or renewal to or other change in the Obligations, the Lease or any other Operative Document or any of the agreements referred to in any thereof, or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee of, or right of offset with respect to, any of the Obligations; or the failure or release of any security or the failure of Lessor to perfect or insure any interest in any collateral, including the Collateral;
(b) any failure, omission or delay on the part of Lessee or Lessor to conform or comply with any term of any instrument or agreement referred to in clause (a) above;
(c) any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset or security referred to in clause (a) above or any obligation or liability of Lessee or Lessor, or any exercise or nonexercise by Lessor of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset or security or any such obligation or liability;
(d) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to Lessee, Lessor or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person or court in any such proceeding;
(e) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee all of the Obligations and all other expenses to be paid by the Guarantor pursuant hereto shall have been satisfied in full, and (ii) shall continue to be effective or shall be reinstated, as the case may be, if at any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, time any payment of any of the foregoingObligations is rescinded or must otherwise be returned by the Agent upon the insolvency, the obligations under the Lease bankruptcy or any other agreement, instrument, guarantee or security referred to in clause (a) above or any term of any thereof;
(f) any defect in the title, compliance with specifications, 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 reorganization of the Aircraft Companies or any part thereof by Lessee or any other Person for any reason whatsoever (includingotherwise, 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 all as though such duration would otherwise constitute a frustration of a lease), whether or payment had not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Guarantor into or with any other corporation or partnership or any sale, lease or transfer of any of the assets of Lessee or the Guarantor to any other Person;
(h) any change in the ownership of the capital stock of Lessee; or
(i) any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing and any other circumstance 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or renderedbeen made.
Appears in 1 contract
Guarantor’s Obligations Unconditional. The covenants and agreements of the Guarantor set forth herein in this Guaranty shall be primary obligations of the Guarantor, and such obligations shall be continuing, absolute and unconditional, shall not be subject to any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunderhereunder or the full and strict compliance by Lessee of all of the Obligations), whether based upon any claim that Lessee or the Guarantor Lessee, Guarantor, or any other Person may have against Lessor any Beneficiary or any other Person or otherwise, and shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor or Lessee shall have any knowledge or notice thereof) including, without limitation:
(a) any Any amendment, modification, addition, deletion, supplement or renewal to or of or other change in the Obligations, the Lease Obligations or any other Operative Document or any of the agreements referred to in any thereof, or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to the AircraftEquipment, or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee of, guaranty of or right of offset with respect to, any of the Obligations; or the failure or release of any security or the failure of Lessor any Beneficiary to perfect or insure any interest in any collateral, including the Collateral;
(b) any Any failure, omission or delay on the part of Lessee or Lessor any Beneficiary to conform or comply with any term of any instrument or agreement referred to in clause CLAUSE (a) above;
(c) any Any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guaranteeguaranty, right of offset or security referred to in clause CLAUSE (a) above or any obligation or liability of Lessee or Lessorany Beneficiary, or any exercise or nonexercise non-exercise by Lessor any Beneficiary of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guaranteeguaranty, right of offset or security or any such obligation or liability;
(d) any Any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to Lessee, Lessor any Beneficiary or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person trustee or receiver or by any court in any such proceeding;
(e) any Any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee guaranty of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease or any other agreement, instrument, guarantee guaranty or security referred to in clause CLAUSE (a) above or any term of any thereof;
(f) any Any defect in the title, compliance with specifications, condition, design, operation or fitness for use of of, or any damage to or loss or destruction of, or any interruption or cessation in the use of any of the Aircraft or any part thereof Equipment by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any Any merger or consolidation of the Lessee or Guarantor into or with any other corporation or partnership or any sale, lease or transfer of any of the assets of Lessee or the Guarantor to any other Person;
(h) any Any change in the ownership of the any shares of capital stock of Lessee or any corporate change in Lessee; or
(i) any Any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing and any other circumstance 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, 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, notwithstanding any provision in the Lease or any other agreement agreements limiting the liability of Lessor any Beneficiary or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or rendered.
Appears in 1 contract
Guarantor’s Obligations Unconditional. The covenants (a) Each Guarantor hereby unconditionally, absolutely and agreements irrevocably guaranties that the Guarantied Obligations will be paid strictly in accordance with the terms of the Loan Documents, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Lender with respect thereto. Each Guarantor set forth herein agrees that this Guaranty constitutes a guaranty of payment when due and not of collection and waives any right to require that any resort be made by the Lender to any Collateral. The obligations of each Guarantor under this Guaranty are independent of any other Credit Party’s obligations under this Financing Agreement and the other Loan Documents, and a separate action or actions may be brought and prosecuted against any Guarantor to enforce this Guaranty, irrespective of whether any action is brought against the Company or any other Credit Party or whether the Company or any other Credit Party is joined in any such action. The liability of each Guarantor hereunder shall be primary obligations absolute and unconditional irrespective of: (i) any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto; (ii) any change in the time, manner or place of payment of, or in any other term in respect of, all or any of the GuarantorGuarantied Obligations, and such obligations shall be continuingor any other amendment or waiver of or consent to any departure from any Loan Document or any agreement or instrument relating thereto; (iii) any exchange or release of, absolute and unconditionalor non-perfection of any lien on or security interest in, shall any Collateral, or any release or amendment or waiver of or consent to any departure from any other guaranty, for all or any of the Guarantied Obligations; (iv) the existence of any claim, set-off, defense or other right that any Guarantor may have at any time against any person, including, without limitation, the Lender; or (v) any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Company or any other Credit Party in respect of the Guarantied Obligations or the Guarantor in respect hereof. This Guaranty will not be subject affected by the occurrence of any Event of Default or Default, by any present or future action of any governmental authority or court amending, modifying, varying, reducing or otherwise affecting or purporting to amend, modify, vary, reduce or otherwise affect any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction of the Guarantied Obligations or by any other circumstances which might constitute a legal or equitable discharge or defense of a surety or guarantor (other than full by complete and strict compliance by irrevocable payment of the Guarantor with its obligations hereunderGuarantied Obligations), whether based upon any claim that Lessee or the Guarantor or any other Person may have against Lessor or any other Person or otherwise, .
(b) This Guaranty (i) is a continuing guaranty and shall remain in full force and effect without regard to, and shall not, to until the fullest extent permitted by applicable laws, be released, discharged or satisfaction in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor or Lessee shall have any knowledge or notice thereof) including, without limitation:
(a) any amendment, modification, addition, deletion, supplement or renewal to or other change in the Obligations, the Lease or any other Operative Document or any full of the agreements referred to in any thereof, or any other instrument or agreement applicable to any Operative Document or any Guarantied Obligations and the payment of the parties other expenses to such agreementsbe paid by each Guarantor pursuant hereto; and (ii) shall continue to be effective or shall be reinstated, or to as the Aircraftcase may be, or if at any assignment, mortgage or transfer thereof or of time any interest therein, or any furnishing or acceptance of additional security for, guarantee of, or right of offset with respect to, any of the Obligations; or the failure or release of any security or the failure of Lessor to perfect or insure any interest in any collateral, including the Collateral;
(b) any failure, omission or delay on the part of Lessee or Lessor to conform or comply with any term of any instrument or agreement referred to in clause (a) above;
(c) any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset or security referred to in clause (a) above or any obligation or liability of Lessee or Lessor, or any exercise or nonexercise by Lessor of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset or security or any such obligation or liability;
(d) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to Lessee, Lessor or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person or court in any such proceeding;
(e) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, payment of any of the foregoingGuarantied Obligations is rescinded or must otherwise be returned by the Lender upon the insolvency, the obligations under the Lease bankruptcy or any other agreement, instrument, guarantee or security referred to in clause (a) above or any term reorganization of any thereof;
(f) any defect in the titleCredit Party or otherwise, compliance with specifications, 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 any part thereof by 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 all as though such duration would otherwise constitute a frustration of a lease), whether or payment had not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Guarantor into or with any other corporation or partnership or any sale, lease or transfer of any of the assets of Lessee or the Guarantor to any other Person;
(h) any change in the ownership of the capital stock of Lessee; or
(i) any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing and any other circumstance 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or renderedbeen made.
Appears in 1 contract
Samples: Second Lien Financing Agreement (Horsehead Holding Corp)
Guarantor’s Obligations Unconditional. The covenants (a) Guarantor hereby guarantees that the Obligations will be paid strictly in accordance with the terms of the Loan Documents, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Lender with respect thereto. Subject to Section 2 above, the Obligations of Guarantor hereunder shall be absolute and agreements unconditional irrespective of: (i) the validity, regularity or enforceability of the Loan Documents or any other instrument or document executed or delivered in connection therewith; (ii) any alteration, amendment, modification, release, termination or cancellation of any Loan Document, or any change in the time, manner or place of payment of, or in any other term in respect of, all or any of the obligations of the Borrower contained in any of the Loan
(iii) any extension of the maturity of the Loan or Note or any waiver of, or consent to any departure from, any of the provisions of any Loan Document; (iv) any exchange, addition, subordination or release of, or non-perfection of any lien on or security interest in, any collateral; (v) any alteration, modification, amendment, release, termination or cancellation of, or waiver of or consent to any departure from, any other indemnity or guaranty given in connection with the Loan; (vi) any negligence by the Lender in the administration or enforcement of the Obligations or any delay in enforcing the Obligations or in realizing on any collateral for the Obligations or any extension in the maturity of the Loan or Note; (vii) the death, incompetence, disability, insolvency or bankruptcy of any Guarantor; (viii) any failure by the Lender to advise Guarantor of adverse changes in the financial condition of the Borrower, or any matters relating to the Loan; or (ix) any other circumstance which might otherwise constitute a defense (legal, equitable or otherwise) available to, or a discharge of, the Borrower or any other guarantor with respect to any or all of the Obligations of the Guarantor set forth herein shall be primary obligations in respect hereof. The Guarantor agrees that any exculpatory language contained in any of the GuarantorLoan Documents shall in no event apply to this Guaranty, and such obligations shall be continuing, absolute and unconditional, shall will not be subject prevent the Lender from proceeding against Guarantor to any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense enforce this Guaranty.
(other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the Guarantor or any other Person may have against Lessor or any other Person or otherwise, b) This Guaranty (i) is a continuing guaranty and shall remain in full force and effect without regard to, and shall not, to until the fullest extent permitted by applicable laws, be released, discharged or satisfaction in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor or Lessee shall have any knowledge or notice thereof) including, without limitation:
(a) any amendment, modification, addition, deletion, supplement or renewal to or other change in the Obligations, the Lease or any other Operative Document or any full of the agreements referred to in any thereof, or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee of, or right of offset with respect to, any of the Obligations; or the failure or release of any security or the failure of Lessor to perfect or insure any interest in any collateral, including the Collateral;
(b) any failure, omission or delay on the part of Lessee or Lessor to conform or comply with any term of any instrument or agreement referred to in clause (a) above;
(c) any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset or security referred to in clause (a) above or any obligation or liability of Lessee or Lessor, or any exercise or nonexercise by Lessor of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset or security or any such obligation or liability;
(d) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to Lessee, Lessor or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person or court in any such proceeding;
(e) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee all of the Obligations and the payment in full of all amounts, if any, which become payable pursuant to Section 4 hereof; and (ii) notwithstanding clause (i) above, shall continue to be effective or shall be reinstated, as the case may be, if at any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, time any payment of any of the foregoingObligations (to the extent payable in money) is rescinded or must otherwise be returned by the Lender to the Borrower or Guarantor or to any guarantor, the obligations under the Lease trustee, receiver or any other agreement, instrument, guarantee or security referred to in clause (a) above or any term of any thereof;
(f) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Guarantor into or with any other corporation or partnership or any sale, lease or transfer representative of any of them, upon the assets of Lessee insolvency, bankruptcy or the Guarantor to any other Person;
(h) any change in the ownership reorganization of the capital stock of Lessee; or
(i) any other occurrence Borrower or circumstance whatsoeverotherwise, whether similar or dissimilar to the foregoing and any other circumstance 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or as though such payment had not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or renderedbeen made.
Appears in 1 contract
Samples: Guaranty of Payment (Cargo Connection Logistics Holding, Inc.)
Guarantor’s Obligations Unconditional. The covenants and agreements of the each Guarantor set forth herein in this Guaranty shall be primary obligations of the such Guarantor, and such obligations shall be continuing, absolute and unconditional, shall not be subject to any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the such Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the Guarantor Company or any other Person may have against Lessor the Agent, any Purchaser or any other Person or otherwise, and shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the any Guarantor or Lessee the Company shall have any knowledge or notice thereof) including, without limitation:
(a) A. any amendment, modification, addition, deletion, supplement or renewal to or of or other change in the Obligations, Liabilities or this Agreement or the Lease other Purchaser Documents or any other Operative Document related instrument or any of the agreements referred to in any thereofagreement, or any other instrument or agreement applicable to any Operative Document thereto or any of the parties to such agreements, or to the Aircraft, or any assignment, mortgage or transfer thereof or of any interest thereincollateral, or any furnishing or acceptance of additional security for, guarantee of, guaranty of or right of offset with respect to, any of the ObligationsLiabilities; or the failure or release of any security or the failure of Lessor the Agent or any Purchaser to perfect or insure any interest in any collateral, including the Collateral;
(b) B. any failure, omission or delay on the part of Lessee any Corporation, the Agent or Lessor any Purchaser to conform or comply with any term of any instrument or agreement referred to in clause (aA) above;
(c) C. any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guaranteeguaranty, right of offset or security referred to in clause (aA) above or any obligation or liability of Lessee any Corporation, the Agent or Lessorany Purchaser, or any exercise or nonexercise non-exercise by Lessor the Agent or any Purchaser of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guaranteeguaranty, right of offset or security or any such obligation or liability;
(d) D. any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to Lesseeany Corporation, Lessor the Agent, any Purchaser or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person trustee or receiver or by any court in any such proceeding;
(e) E. any limitation on the liability or obligations of any Person under the Lease Purchaser Documents or any other Operative Documentrelated instrument or agreement, the ObligationsLiabilities, any collateral security for the Obligations Liabilities or any other guarantee guaranty of the Obligations Liabilities or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease or any other agreement, instrument, guarantee guaranty or security referred to in clause (aA) above or any term of any thereof;
(f) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or F. any merger or consolidation of the Company or any Guarantor into or with any other corporation or partnership Person or any sale, lease or transfer of any of the assets of Lessee the Company or the any Guarantor to any other Person;
(h) G. any change in the ownership of any of the capital stock equity interests of Lesseethe Company or any Guarantor or any corporate change in the Company or any Guarantor; or
(i) H. any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing and any other circumstance 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 a Guarantor. The obligations of the Guarantor, each Guarantor set forth herein constitute the full recourse obligations of the Guarantor such Guarantor, enforceable against it to the full extent of all its assets and properties. Each Guarantor waives any and all notice of the creation, notwithstanding any provision in the Lease renewal, extension or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect accrual of any of the obligations guaranteed hereunder whether Liabilities and notice of or proof of reliance by the Agent and the Purchasers upon this Guaranty or acceptance of this Guaranty, and the Liabilities, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guaranty. Each Guarantor unconditionally waives, to the extent permitted by law: (a) acceptance of this Guaranty and proof of reliance by the Agent and the Purchasers hereon; (b) notice of any of the matters referred to in the foregoing clauses A through H hereof, or any right to consent or assent to any thereof; (c) all notices that may be required by statute, rule of law or otherwise, now or hereafter in effect, to preserve intact any rights against such Guarantor, including without limitation, any demand, presentment, protest, proof or notice of nonpayment under this Agreement or any other Purchaser Document or any related instrument or agreement, and notice of default or any failure on the part of any Corporation to perform and comply with any covenant, agreement, term or condition of this Agreement, any other Purchaser Document or any related instrument or agreement; (d) any right to the enforcement, assertion or exercise against any Corporation of any right, power, privilege or remedy conferred in this Agreement, any other Purchaser Document or any related instrument or agreement or otherwise; (e) any requirement of diligence on the part of any Person; (f) any requirement of the Agent or any Purchaser to take any action whatsoever, to exhaust any remedies or to mitigate the damages resulting from a default under this Agreement, any other Purchaser Document or any related instrument or agreement; (g) any notice of any sale, transfer or other disposition by any Person of any right under, title to or interest in this Agreement, any other Purchaser Document or any related instrument or agreement relating thereto or any collateral for the Liabilities; and (h) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge, release or defense of a guarantor or surety, or that might otherwise limit recourse against a Guarantor (including, without limitation, any and all benefits under California Civil Code Sections 2809, 2810, 2819, 2822, 2825, 2845, 2846, 2847, 2848, 2849, 2850, 2899 and 3433). Without limiting the foregoing, each Guarantor hereby absolutely, unconditionally and irrevocably waives and agrees not to assert or take advantage of any defense based upon an election of remedies by the Agent or any Purchaser, including an election to proceed by non-judicial rather than judicial foreclosure, which destroys or impairs any right of subrogation of such Guarantor or the right of such Guarantor to proceed against any Person for reimbursement or both. Each Guarantor agrees that this Guaranty shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Company or any other Guarantor is rescinded or must be otherwise restored by the Agent or any Purchaser, whether as a party result of any proceedings in bankruptcy or reorganization or otherwise. Each Guarantor further agrees that, without limiting the generality of this Guaranty, if an Event of Default shall have occurred and be continuing and the Agent or any Purchaser is prevented by applicable law from exercising its remedies under the Purchaser Documents, the Agent and the Purchasers shall be entitled to receive hereunder from each Guarantor (but subject to the action or proceeding in Senior Subordination Agreement), upon demand therefor, the sums which would have otherwise been due from the Company had such ruling, order or judgment is issued or renderedremedies been exercised.
Appears in 1 contract
Samples: Note and Warrant Purchase Agreement (Us Home & Garden Inc)
Guarantor’s Obligations Unconditional. The covenants and agreements Guarantor’s obligations hereunder are independent of the Guarantor set forth herein shall be primary obligations of any other Person under the GuarantorOperative Documents, and such each Beneficiary may enforce any of its rights hereunder independently of any other right or remedy that it may at any time hold with respect to the Liabilities or any security or other guaranty therefor. Such obligations shall be continuing, absolute and unconditional, shall not be subject to any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and indefeasible payment and performance of all of the Liabilities and full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the Lessee, the Guarantor or any other Person may have against Lessor any Beneficiary or any other Person or otherwise, and shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor or Lessee any other Person shall have any knowledge or notice thereof) including, without limitation:
(aA) any amendment, modification, addition, deletion, supplement or renewal to or of or other change in the Obligations, the Lease Liabilities or any other Operative Document or any of the agreements referred to in any thereof, or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to the AircraftLeased Property, or any assignment, mortgage mortgage, encumbrance or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee of, guaranty of or right of offset with respect to, any of the Obligations; Liabilities, or the failure or release of any security or the failure of Lessor any Beneficiary or any other Person to perfect or insure any interest in any collateral, including the Collateral;
(bB) any failure, impossibility, illegality, omission or delay on the part of Lessee the Lessor, any Beneficiary or Lessor any other Person to conform or comply with any term of any instrument or agreement referred to in clause (aA) above;
(cC) any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guaranteeguaranty, right of offset or security referred to in clause (aA) above or any obligation or liability of Lessee the Lessor, any Beneficiary or Lessorany other Person, or any exercise or nonexercise non-exercise by Lessor the Lessor, any Beneficiary or any other Person of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guaranteeguaranty, right of offset or security or any such obligation or liability;
(dD) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to the Lessee, Lessor any Beneficiary or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person receiver or court in any such proceeding;
(eE) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the ObligationsLiabilities, any collateral security for the Obligations Liabilities, any other guaranty of the Liabilities or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease foregoing or any other agreement, instrument, guarantee guaranty or security referred to in clause (aA) above or any term of any thereof;
(fF) any defect in the title, compliance with specifications, condition, design, operation or fitness for use of of, or any damage to or loss or destruction of, or any interruption or cessation in the use of the Aircraft Leased Property or any part portion thereof by Lessee Guarantor 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee Guarantor or any other Person;
(gG) any merger or liquidation of Lessee or any merger or consolidation of the Guarantor into or with any other corporation or partnership Person, or any sale, lease or transfer of any of the assets of Lessee or the Guarantor to any other Person;
(hH) any change in the ownership of any membership interests of Guarantor or any other change in organizational structure of Guarantor;
(I) any loan to or other transaction between any of the capital stock Beneficiaries or any other Person and Guarantor;
(J) any recovery of Lesseejudgment against the Lessee or the Guarantor by any levy of any writ or process of execution under any such judgment;
(K) absence of any notice to, or knowledge of, Guarantor of the existence or occurrence of any of the foregoing clauses (A) through (J); or
(iL) any other occurrence or circumstance whatsoeverwhatsoever (other than full and indefeasible payment and performance of all of the Liabilities and all of Guarantor’s obligations hereunder), whether similar or dissimilar to the foregoing foregoing, and any other circumstance 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, 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, notwithstanding any provision in the Lease any Operative Document or any other document or agreement limiting to the liability contrary. Guarantor waives any and all notice of Lessor the creation, renewal, extension or accrual of any other Person. Nothing herein shall prohibit Lessor from exercising its rights against of the Guarantor Liabilities and notice of or proof of reliance by the Lessor, any Beneficiary or any other Person simultaneouslyupon this Guaranty or acceptance of this Guaranty, jointly and the Liabilities, and any of them, shall conclusively be deemed to have been created, contracted or severallyincurred in reliance upon this Guaranty. The Guarantor shall be bound unconditionally waives, to the extent permitted by each law: (a) acceptance of this Guaranty and every ruling, order and judgment obtained proof of reliance by Lessor in respect any Beneficiary or any other Person hereon; (b) notice of any of the obligations guaranteed hereunder whether matters referred to in clauses (A) through (I) above, or not any right to consent or assent to any thereof; (c) all notices that may be required by statute, rule of law or otherwise, now or hereafter in effect, to preserve intact any rights against Guarantor, including, without limitation, any demand, presentment, protest, proof or notice of nonpayment under any Operative Document, and notice of default or any failure on the Guarantor is a party part of and Person to perform and comply with any covenant, agreement, term or condition of any Operative Document; (d) any right to the enforcement, assertion or exercise against the Lessee of any right, power, privilege or remedy conferred in any Operative Document or otherwise; (e) any requirement of diligence on the part of any Person; (f) any requirement of any Beneficiary or any other Person to take any action whatsoever, to exhaust any remedies, proceed first against the Lessee or proceeding to mitigate the damages resulting from a default by any Person under any Operative Document; (g) any notice of any sale, transfer or other disposition by any Person of any right under, title to or interest in any Operative Document or the Leased Property; and (h) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge, release or defense of a guarantor or surety, or that might otherwise limit recourse against Guarantor. Guarantor agrees that this Guaranty shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of itself or the Lessee is rescinded or must be otherwise restored by any Beneficiary, whether as a result of any proceedings in bankruptcy or reorganization or otherwise. Guarantor further agrees that, without limiting the generality of this Guaranty, if any default under any Operative Document shall have occurred and any Beneficiary is prevented by applicable law from exercising its remedies under the Operative Documents, such Beneficiary shall be entitled to receive hereunder from Guarantor, upon demand therefor, the sums which would have otherwise been due had such rulingremedies been exercised. In addition, order Guarantor assumes the responsibility for being and keeping itself informed of the financial condition of the Lessee and of all the circumstances bearing upon the risk of nonpayment of the Liabilities that diligent inquiry would reveal, and that absent a request for such information by Guarantor, the Beneficiaries shall have no duty to advise Guarantor of information known to them regarding such condition or judgment is issued or renderedany such circumstance.
Appears in 1 contract
Samples: Guaranty (Terremark Worldwide Inc)
Guarantor’s Obligations Unconditional. The covenants and agreements of the each Guarantor set forth herein in this Guaranty shall be primary obligations of the such Guarantor, and such obligations shall be continuing, absolute and unconditional, shall not be subject to any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the Guarantor Borrower or any other Person may have against Lessor Agent, any Lender or any other Person or otherwise, and shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the any Guarantor or Lessee Borrower shall have any knowledge or notice thereof) including, without limitation:
(a) A. any amendment, modification, addition, deletion, supplement or renewal to or of or other change in the Obligations, Liabilities or this Agreement or the Lease Other Documents or any other Operative Document related instrument or any of the agreements referred to in any thereofagreement, or any other instrument or agreement applicable to any Operative Document thereto or any of the parties to such agreements, or to the Aircraft, or any assignment, mortgage or transfer thereof or of any interest thereincollateral, or any furnishing or acceptance of additional security for, guarantee of, guaranty of or right of offset with respect to, any of the ObligationsLiabilities; or the failure or release of any security or the failure of Lessor Agent or any Lender to perfect or insure any interest in any collateral, including the Collateral;
(b) B. any failure, omission or delay on the part of Lessee any Credit Party, Agent or Lessor any Lender to conform or comply with any term of any instrument or agreement referred to in clause (aA) above;
(c) C. any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guaranteeguaranty, right of offset or security referred to in clause (aA) above or any obligation or liability of Lessee any Credit Party, Agent or Lessorany Lender, or any exercise or nonexercise non-exercise by Lessor Agent or any Lender of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guaranteeguaranty, right of offset or security or any such obligation or liability;
(d) D. any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to Lesseeany Credit Party, Lessor Agent, any Lender or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person trustee or receiver or by any court in any such proceeding;
(e) E. any limitation on the liability or obligations of any Person under the Lease Loan Documents or any other Operative Documentrelated instrument or agreement, the ObligationsLiabilities, any collateral security for the Obligations Liabilities or any other guarantee guaranty of the Obligations Liabilities or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease or any other agreement, instrument, guarantee guaranty or security referred to in clause (aA) above or any term of any thereof;
(f) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or F. any merger or consolidation of the Borrower or any Guarantor into or with any other corporation or partnership Person or any sale, lease or transfer of any of the assets of Lessee Borrower or the any Guarantor to any other Person;
(h) G. any change in the ownership of any of the capital stock equity interests of LesseeBorrower or any Guarantor or any corporate change in Borrower or any Guarantor; or
(i) H. any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing and any other circumstance 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 a Guarantor. The obligations of the Guarantor, each Guarantor set forth herein constitute the full recourse obligations of the Guarantor such Guarantor, enforceable against it to the full extent of all its assets and properties. Each Guarantor waives any and all notice of the creation, notwithstanding any provision in the Lease renewal, extension or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect accrual of any of the obligations guaranteed hereunder whether Liabilities and notice of or proof of reliance by Agent and the Lenders upon this Guaranty or acceptance of this Guaranty, and the Liabilities, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guaranty. Each Guarantor unconditionally waives, to the extent permitted by law: (a) acceptance of this Guaranty and proof of reliance by Agent and the Lenders hereon; (b) notice of any of the matters referred to in the foregoing clauses A through H hereof, or any right to consent or assent to any thereof; (c) all notices that may be required by statute, rule of law or otherwise, now or hereafter in effect, to preserve intact any rights against Guarantor, including without limitation, any demand, presentment, protest, proof or notice of nonpayment under this Agreement or any Other Document or any related instrument or agreement, and notice of default or any failure on the part of any Credit Party to perform and comply with any covenant, agreement, term or condition of this Agreement, any Other Document or any related instrument or agreement; (d) any right to the enforcement, assertion or exercise against any Credit Party of any right, power, privilege or remedy conferred in this Agreement, any Other Document or any related instrument or agreement or otherwise; (e) any requirement of diligence on the part of any Person; (f) any requirement of Agent or any Lender to take any action whatsoever, to exhaust any remedies or to mitigate the damages resulting from a default under this Agreement, any Other Document or any related instrument or agreement; (g) any notice of any sale, transfer or other disposition by any Person of any right under, title to or interest in this Agreement, any Other Document or any related instrument or agreement relating thereto or any collateral for the Liabilities; and (h) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge, release or defense of a guarantor or surety, or that might otherwise limit recourse against a Guarantor (including, without limitation, any and all benefits under California Civil Code Sections 2809, 2810, 2819, 2822, 2825, 2845, 2846, 2847, 2848, 2849, 2850, 2899 and 3433). Without limiting the foregoing, each Guarantor hereby absolutely, unconditionally and irrevocably waives and agrees not to assert or take advantage of any defense based upon an election of remedies by Agent or any Lender, including an election to proceed by non-judicial rather than judicial foreclosure, which destroys or impairs any right of subrogation of such Guarantor or the right of such Guarantor to proceed against any Person for reimbursement or both. Each Guarantor agrees that this Guaranty shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of Borrower or any other Guarantor is rescinded or must be otherwise restored by Agent or any Lender, whether as a party result of any proceedings in bankruptcy or reorganization or otherwise. Each Guarantor further agrees that, without limiting the generality of this Guaranty, if an Event of Default shall have occurred and be continuing and Agent or any Lender is prevented by applicable law from exercising its remedies under the Loan Documents, Agent and the Lenders shall be entitled to receive hereunder from each Guarantor, upon demand therefor, the action or proceeding in sums which would have otherwise been due from Borrower had such ruling, order or judgment is issued or renderedremedies been exercised.
Appears in 1 contract
Samples: Revolving Credit, Term Loan, Guaranty and Security Agreement (Us Home & Garden Inc)
Guarantor’s Obligations Unconditional. The covenants and agreements obligations of the Guarantor set forth herein under this Guaranty shall be primary primary, absolute and unconditional obligations of the Guarantor, and such obligations shall be continuing, absolute and unconditional, shall not be subject to any counterclaim, setoffset-off, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the Guarantor or any other Person person may have against Lessor the Company or any other Person or otherwiseperson, and to the full extent permitted by applicable law shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor or Lessee the Company shall have any knowledge or notice thereof) ), including, without limitation:
(a) any amendmenttermination, modification, addition, deletion, amendment or modification of or deletion from or addition or supplement or renewal to or other change in the Obligations, the Lease or any other Operative Document or any of the agreements referred to in any thereof, Note Documents or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to any of the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or Note Documents;
(b) any furnishing or acceptance of additional security for, guarantee ofany security, or right any release of offset with respect toany security, any of for the Obligations; , or the failure or release of any security or the failure of Lessor any person to perfect or insure any interest in any collateral, including the Collateral;
(bc) any failure, omission or delay on the part of Lessee or Lessor the Company to conform or comply with any term of any of the Note Documents or any other instrument or agreement referred to in clause paragraph (a) above, including, without limitation, failure to give notice to the Guarantor of the occurrence of a “Default” or an “Event of Default” under any Note Document;
(cd) any waiver of the payment, performance or observance of any of the obligations, conditions, covenants or agreements contained in any Note Document, or any other waiver, consent, extension, indulgence, compromise, settlement, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset the Note Documents or security any other instrument or agreement referred to in clause paragraph (a) above or any obligation or liability of Lessee or Lessorthe Company, or any exercise or nonexercise by Lessor non-exercise of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset instrument or security agreement or any such obligation or liability;
(d) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to Lessee, Lessor or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person or court in any such proceeding;
(e) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease or any other agreement, instrument, guarantee or security referred to in clause (a) above or any term of any thereof;
(f) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Guarantor into or with any other corporation or partnership or any sale, lease or transfer of any of the assets of Lessee or the Guarantor to any other Person;
(h) any change in the ownership of the capital stock of Lessee; or
(i) any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing and any other circumstance 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or rendered.
Appears in 1 contract
Samples: Master Note Purchase Agreement (Encore Wire Corp /De/)
Guarantor’s Obligations Unconditional. The covenants (a) Each Guarantor hereby, jointly and agreements severally, guarantees that the Obligations will be paid strictly in accordance with the terms of the Loan Documents to which the Borrower is a party, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Lender with respect thereto. Each Guarantor set forth herein agrees that this Guaranty constitutes a guaranty of payment when due and not of collection and waives any right to require that any resort be made by the Lender to any collateral. The joint and several liability of the Guarantors hereunder shall be primary absolute, unconditional and irrevocable irrespective of: (i) any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto; (ii) any change in the time, manner or place of payment of, or in any other term in respect of, all or any of the Obligations, or any other amendment or waiver of or consent to any departure from any Loan Document (including, without limitation, any increase in the obligations of the GuarantorBorrower resulting from the extension of additional credit to the Borrower or otherwise); (iii) any exchange or release of, and such obligations shall be continuingor non-perfection of any Lien on or security interest in, absolute and unconditionalany collateral, shall not be subject or any release or amendment or waiver of or consent to any counterclaimdeparture from any other guaranty, setofffor all or any of the Obligations; (iv) the existence of any claim, deductionset off, diminutiondefense or other right that the Guarantors may have at any time against any Person, abatementincluding, recoupmentwithout limitation, suspensionthe Lender; or (v) any other circumstance which might otherwise constitute a defense available to, defermentor a discharge of, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the Guarantor Borrower or any other Person may have against Lessor Guarantor in respect of the Obligations or any Guarantor in respect hereof, other Person or otherwise, than payment thereof in full.
(b) This Guaranty (i) is a continuing guaranty and shall remain in full force and effect without regard to, and shall not, to until the fullest extent permitted by applicable laws, be released, discharged or satisfaction in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor or Lessee shall have any knowledge or notice thereof) including, without limitation:
(a) any amendment, modification, addition, deletion, supplement or renewal to or other change in the Obligations, the Lease or any other Operative Document or any of the agreements referred to in any thereof, or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee of, or right of offset with respect to, any of the Obligations; or the failure or release of any security or the failure of Lessor to perfect or insure any interest in any collateral, including the Collateral;
(b) any failure, omission or delay on the part of Lessee or Lessor to conform or comply with any term of any instrument or agreement referred to in clause (a) above;
(c) any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset or security referred to in clause (a) above or any obligation or liability of Lessee or Lessor, or any exercise or nonexercise by Lessor of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset or security or any such obligation or liability;
(d) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to Lessee, Lessor or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person or court in any such proceeding;
(e) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee full of the Obligations and the payment of the other expenses to be paid by the Guarantors pursuant hereto; and (ii) shall continue to be effective or shall be reinstated, as the case may be, if at any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, time any payment of any of the foregoingObligations is rescinded or must otherwise be returned by the Lender upon the insolvency, the obligations under the Lease bankruptcy or any other agreement, instrument, guarantee or security referred to in clause (a) above or any term of any thereof;
(f) any defect in the title, compliance with specifications, 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 reorganization of the Aircraft Borrower or any part thereof by Lessee or any other Person for any reason whatsoever (includingotherwise, 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 all as though such duration would otherwise constitute a frustration of a lease), whether or payment had not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Guarantor into or with any other corporation or partnership or any sale, lease or transfer of any of the assets of Lessee or the Guarantor to any other Person;
(h) any change in the ownership of the capital stock of Lessee; or
(i) any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing and any other circumstance 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or renderedbeen made.
Appears in 1 contract
Guarantor’s Obligations Unconditional. The covenants and agreements obligations of the each Guarantor set forth herein under this Guaranty shall be primary obligations of the Guarantor, and such obligations shall be continuingprimary, absolute and unconditionalunconditional obligations of each Guarantor, shall not be subject to any counterclaim, setoffset-off, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the each Guarantor or any other Person person may have against Lessor the Company or any other Person or otherwiseperson, and to the full extent permitted by applicable law shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the each Guarantor or Lessee the Company shall have any knowledge or notice thereof) ), including, without limitation:
(a) any amendmenttermination, modification, addition, deletion, amendment or modification of or deletion from or addition or supplement or renewal to or other change in the Obligations, the Lease or any other Operative Document or any of the agreements referred to in any thereof, Note Documents or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to any of the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or Note Documents;
(b) any furnishing or acceptance of additional security for, guarantee ofany security, or right any release of offset with respect toany security, any of for the Obligations; , or the failure or release of any security or the failure of Lessor any person to perfect or insure any interest in any collateral, including the Collateral;
(bc) any failure, omission or delay on the part of Lessee or Lessor the Company to conform or comply with any term of any of the Note Documents or any other instrument or agreement referred to in clause paragraph (a) above;, including, without limitation, failure to give notice to any Guarantor of the occurrence of a "Default" or an "Event of Default" under any Note Document; Exhibit 1(b)
(cd) any waiver of the payment, performance or observance of any of the obligations, conditions, covenants or agreements contained in any Note Document, or any other waiver, consent, extension, indulgence, compromise, settlement, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset the Note Documents or security any other instrument or agreement referred to in clause paragraph (a) above or any obligation or liability of Lessee or Lessorthe Company, or any exercise or nonexercise by Lessor non-exercise of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset instrument or security agreement or any such obligation or liability;
(de) any failure, omission or delay on the part of any of the Holders to enforce, assert or exercise any right, power or remedy conferred on such Holder in this Guaranty, or any such failure, omission or delay on the part of such Holder in connection with any Note Document, or any other action on the part of such Holder;
(f) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, liquidation receivership, conservatorship, custodianship, liquidation, marshaling of assets and liabilities or similar proceeding proceedings with respect to Lesseethe Company, Lessor any Guarantor or to any other Person person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person trustee or receiver or by any court in any such proceeding;
(eg) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease Note Documents or any other agreement, instrument, guarantee agreement or security instrument referred to in clause paragraph (a) above or any term of any thereofhereof;
(fh) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Company or any Guarantor into or with any other corporation or partnership corporation, or any sale, lease or transfer of any of the assets of Lessee the Company or the any Guarantor to any other Personperson;
(hi) any change in the ownership of the any shares of capital stock of Lesseethe Company or any change in the corporate relationship between the Company and any Guarantor, or any termination of such relationship;
(j) any release or discharge, by operation of law, of any Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty; or
(ik) any other occurrence occurrence, circumstance, happening or circumstance event whatsoever, whether similar or dissimilar to the foregoing foregoing, whether foreseen or unforeseen, and any other circumstance that which might otherwise constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or that which might otherwise limit recourse against the any 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or rendered.Exhibit 1(b)
Appears in 1 contract
Samples: Note Purchase Agreement (Elkcorp)
Guarantor’s Obligations Unconditional. The covenants and agreements Guarantor's obligations hereunder are independent in respect of any other Person, and, subject to Section 7.5 of the Guarantor set forth herein Loan Agreement, each Beneficiary may enforce any of its rights hereunder independently of any other right or remedy that it may at any time hold with respect to the Liabilities or any security or other guaranty therefor; provided that no double recovery of the same amount shall be primary obligations of the Guarantor, and such permitted. Such obligations shall be continuing, absolute and unconditional, shall not be subject to any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its their obligations hereunder), whether based upon any claim that Lessee or the Guarantor Lessor, Lessee, Administrative Agent, any Beneficiary or any other Person may have against Lessor any Beneficiary or any other Person or otherwise, and shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor or Lessee any other Person shall have any knowledge or notice thereof) including, without limitation:
(a) A. any amendment, modification, addition, deletion, supplement or renewal to or of or other change in the Obligations, the Lease Liabilities or any other Operative Document or any of the agreements referred to in any thereof, or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to the AircraftProperty, or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee of, guaranty of or right of offset with respect to, any of the ObligationsLiabilities; or the failure or release of any security or the failure of Lessor any Beneficiary to perfect or insure any interest in any collateral, including the Collateral;
(b) B. any failure, omission or delay on the part of Lessee Lessor or Lessor any Beneficiary to conform or comply with any term of any instrument or agreement referred to in clause (a) A above;
(c) C. any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guaranteeguaranty, right of offset or security referred to in clause (a) A above or any obligation or liability of Lessee Lessor or Lessorany Beneficiary, or any exercise or nonexercise non-exercise by Lessor any Beneficiary of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guaranteeguaranty, right of offset or security or any such obligation or liability;
(d) D. any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to Lessee, Lessor or any Beneficiary or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person receiver or court in any such proceeding;
(e) E. any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the ObligationsLiabilities, any collateral security for the Obligations Liabilities, any other guaranty of the Liabilities or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease foregoing or any other agreement, instrument, guarantee guaranty or security referred to in clause (a) A above or any term of any thereof;
(f) F. any defect in the title, compliance with specifications, condition, design, operation or fitness for use of of, or any damage to or loss or destruction of, or any interruption or cessation in the use of the Aircraft or any part thereof Property by Lessee or any other Person for any reason whatsoever (including, without limitation, including 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of any Lessee or any other Person;
(g) any merger or liquidation of Lessee or G. any merger or consolidation of the Lessor, Lessee or Guarantor into or with any other corporation or partnership Person, or any sale, lease or transfer of any of the assets of Lessor, Lessee or the Guarantor to any other Person;
(h) H. any change in the ownership of the any shares of capital stock of LesseeLessor, Lessee or Guarantor or any corporate change in Lessor, Lessee or Guarantor; orI. any loan to or other transaction between the Beneficiaries, or any of them, and Lessee or Lessor;
(i) J. any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing foregoing, and any other circumstance 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, Guarantor set forth herein constitute the full recourse obligations of the Guarantor enforceable against it to the full extent of all of its assets and properties, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor Operative Document or any other Persondocument or agreement to the contrary. Nothing herein shall prohibit Lessor from exercising its rights against Guarantor waives any and all notice of the Guarantor creation, renewal, extension or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect accrual of any of the obligations guaranteed hereunder whether Liabilities and notice of or not proof of reliance by any Beneficiary upon this Guaranty or acceptance of this Guaranty, and the Liabilities, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guaranty. Guarantor is a party unconditionally waives, to the extent permitted by law: (a) acceptance of this Guaranty and proof of reliance by any Beneficiary hereon; (b) notice of any of the matters referred to in clauses A through J above, or any right to consent or assent to any thereof; (c) all notices that may be required by statute, rule of law or otherwise, now or hereafter in effect, to preserve intact any rights against Guarantor, including any demand, presentment, protest, proof or notice of nonpayment under any Operative Document, and notice of default or any failure on the part of Lessor to perform and comply with any covenant, agreement, term or condition of any Operative Document; (d) any right to the enforcement, assertion or exercise against Lessor of any right, power, privilege or remedy conferred in any Operative Document or otherwise; (e) any requirement of diligence on the part of any Person; (f) any requirement of any Beneficiary to take any action whatsoever, to exhaust any remedies or proceeding to mitigate the damages resulting from a default by any Person under any Operative Document; (g) any notice of any sale, transfer or other disposition by any Person of any right under, title to or interest in any Operative Document or the Property; and (h) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge, release or defense of a guarantor or surety, or that might otherwise limit recourse against Guarantor. Guarantor agrees that this Guaranty shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of itself or Lessor is rescinded or must be otherwise restored by any Beneficiary whether as a result of any proceedings in bankruptcy or reorganization or otherwise. Guarantor further agrees that, without limiting the generality of this Guaranty, if a Lessee Event of Default shall have occurred and be continuing and any Beneficiary is prevented by Applicable Law from exercising its remedies under the Operative Documents, such Beneficiary shall be entitled to receive hereunder from Guarantor, upon demand therefor, the sums which would have otherwise been due from Lessee had such ruling, order or judgment is issued or renderedremedies been exercised.
Appears in 1 contract
Samples: Guaranty (Reebok International LTD)
Guarantor’s Obligations Unconditional. The covenants and agreements Guarantor's obligations hereunder are independent of the Guarantor set forth herein shall be primary obligations of the GuarantorIssuer, the Trust or any other Person under the Operative Documents, and such each Beneficiary may enforce any of its rights hereunder independently of any other right or remedy that it may at any time hold with respect to the Liabilities or any security or other guaranty therefor. Such obligations shall be continuing, absolute and unconditional, shall not be subject to any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and indefeasible payment and performance of all of the Liabilities and full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the Issuer, the Trust, Guarantor or any other Person may have against Lessor any Beneficiary or any other Person or otherwise, and shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor or Lessee any other Person shall have any knowledge or notice thereof) including, without limitation:
(aA) any amendment, modification, addition, deletion, supplement or renewal to or of or other change in the Obligations, the Lease Liabilities or any other Operative Document or any of the agreements referred to in any thereof, or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to the AircraftProperty, or any assignment, mortgage mortgage, encumbrance or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee of, guaranty of or right of offset with respect to, any of the ObligationsLiabilities; or the failure or release of any security or the failure of Lessor any Beneficiary or any other Person to perfect or insure any interest in any collateral, including the Collateral;
(bB) any failure, impossibility, illegality, omission or delay on the part of Lessee the Agent, any Beneficiary or Lessor any other Person to conform or comply with any term of any instrument or agreement referred to in clause (aA) above;
(cC) any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guaranteeguaranty, right of offset or security referred to in clause (aA) above or any obligation or liability of Lessee the Agent, any Beneficiary or Lessorany other Person, or any exercise or nonexercise non-exercise by Lessor the Agent, any Beneficiary or any other Person of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guaranteeguaranty, right of offset or security or any such obligation or liability;
(dD) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to Lesseethe Issuer, Lessor the Trust, any Beneficiary or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person receiver or court in any such proceeding;
(eE) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the ObligationsLiabilities, any collateral security for the Obligations Liabilities, any other guaranty of the Liabilities or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease foregoing or any other agreement, instrument, guarantee guaranty or security referred to in clause (aA) above or any term of any thereof;
(fF) any defect in the title, compliance with specifications, condition, design, operation or fitness for use of of, or any damage to or loss or destruction of, or any interruption or cessation in the use of the Aircraft Property or any part portion thereof by Lessee Guarantor 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee Guarantor or any other Person;
(gG) any merger or liquidation of Lessee or any merger or consolidation of the Guarantor into or with any other corporation or partnership Person, or any sale, lease or transfer of any of the assets of Lessee or the Guarantor to any other Person;
(hH) any change in the ownership of the any shares of capital stock of LesseeGuarantor or any corporate change in Guarantor;
(I) any loan to or other transaction between any of the Beneficiaries or any other Person and Guarantor;
(J) any recovery of judgment against the Issuer, the Trust, or the Guarantor by any levy of any writ or process of execution under any such judgment;
(K) absence of any notice to, or knowledge of, Guarantor of the existence or occurrence of any of the foregoing clauses (A) through (J); or
(iL) any other occurrence or circumstance whatsoeverwhatsoever (other than full and indefeasible payment and performance of all of the Liabilities and all of Guarantor's obligations hereunder), whether similar or dissimilar to the foregoing foregoing, and any other circumstance 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, 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, notwithstanding any provision in the Lease any Operative Document or any other document or agreement limiting to the liability contrary. Guarantor waives any and all notice of Lessor the creation, renewal, extension or accrual of any other Person. Nothing herein shall prohibit Lessor from exercising its rights against of the Guarantor Liabilities and notice of or proof of reliance by the Agent, any Beneficiary or any other Person simultaneouslyupon this Guarantee or acceptance of this Guarantee, jointly and the Liabilities, and any of them, shall conclusively be deemed to have been created, contracted or severallyincurred in reliance upon this Guarantee. The Guarantor shall be bound unconditionally waives, to the extent permitted by each law: (a) acceptance of this Guarantee and every ruling, order and judgment obtained proof of reliance by Lessor in respect any Beneficiary or any other Person hereon; (b) notice of any of the obligations guaranteed hereunder whether matters referred to in clauses (A) through (I) above, or not any right to consent or assent to any thereof; (c) all notices that may be required by statute, rule of law or otherwise, now or hereafter in effect, to preserve intact any rights against Guarantor, including, without limitation, any demand, presentment, protest, proof or notice of nonpayment under any Operative Document, and notice of default or any failure on the Guarantor is a party part of and Person to perform and comply with any covenant, agreement, term or condition of any Operative Document; (d) any right to the enforcement, assertion or exercise against the Issuer or the Trust of any right, power, privilege or remedy conferred in any Operative Document or otherwise; (e) any requirement of diligence on the part of any Person; (f) any requirement of any Beneficiary or any other Person to take any action whatsoever, to exhaust any remedies, proceed first against the Issuer or proceeding the Trust or to mitigate the damages resulting from a default by any Person under any Operative Document; (g) any notice of any sale, transfer or other disposition by any Person of any right under, title to or interest in any Operative Document or the Property; and (h) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge, release or defense of a guarantor or surety, or that might otherwise limit recourse against Guarantor. Guarantor agrees that this Guarantee shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of itself, the Issuer or the Trust is rescinded or must be otherwise restored by any Beneficiary, whether as a result of any proceedings in bankruptcy or reorganization or otherwise. Guarantor further agrees that, without limiting the generality of this Guarantee, if any default under any Operative Document shall have occurred and be continuing and any Beneficiary is prevented by applicable law from exercising its remedies under the Operative Documents, such Beneficiary shall be entitled to receive hereunder from Guarantor, upon demand therefor, the sums which would have otherwise been due had such rulingremedies been exercised. In addition, order or judgment is issued or renderedGuarantor assumes the responsibility for being and keeping itself informed of the financial condition of the Issuer and the Trust and of all the circumstances bearing upon the risk of nonpayment of the Liabilities that diligent inquiry would reveal, and that absent a request for such information by Guarantor, the Beneficiaries shall have no duty to advise Guarantor of information known to them regarding such condition any such circumstance.
Appears in 1 contract
Guarantor’s Obligations Unconditional. The covenants and agreements of the Guarantor set forth herein in this Guaranty shall be primary obligations of the Guarantor, and such obligations shall be continuing, absolute and unconditional, shall not be subject to any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunderhereunder or the full and strict compliance by Obligor of all of the Obligations), whether based upon any claim that Lessee or the Guarantor Obligor, Guarantor, or any other Person may have against Lessor any Beneficiary or any other Person or otherwise, and shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor or Lessee Obligor shall have any knowledge or notice thereof) including, without limitation:
(a) any Any amendment, modification, addition, deletion, supplement or renewal to or of or other change in the Obligations, the Lease Obligations or any other Operative Document or any of the agreements referred to in any thereof, or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to the AircraftAssets, or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee of, guaranty of or right of offset with respect to, any of the Obligations; or the failure or release of any security or the failure of Lessor any Beneficiary to perfect or insure any interest in any collateral, including the Collateral;
(b) any Any failure, omission or delay on the part of Lessee Obligor or Lessor any Beneficiary to conform or comply with any term of any instrument or agreement referred to in clause (a) above;
(c) any Any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guaranteeguaranty, right of offset or security referred to in clause (a) above or any obligation or liability of Lessee Obligor or Lessorany Beneficiary, or any exercise or nonexercise non-exercise by Lessor any Beneficiary of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guaranteeguaranty, right of offset or security or any such obligation or liability;
(d) any Any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to LesseeObligor, Lessor any Beneficiary or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person trustee or receiver or by any court in any such proceeding;
(e) any Any limitation on the liability or obligations of any Person under the Lease Asset Use Agreement, or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee guaranty of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease or any other agreement, instrument, guarantee guaranty or security referred to in clause (a) above or any term of any thereof;
(f) any Any defect in the title, compliance with specifications, condition, design, operation or fitness for use of of, or any damage to or loss or destruction of, or any interruption or cessation in the use of the Aircraft or any part thereof Assets by Lessee Obligor 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee Obligor or any other Person;
(g) any merger or liquidation of Lessee or any Any merger or consolidation of the Obligor or Guarantor into or with any other corporation or partnership or any sale, lease or transfer of any of the assets of Lessee Obligor or the Guarantor to any other Person;
(h) any Any change in the ownership of the any shares of capital stock of LesseeObligor or any corporate change in Obligor or Guarantor; or
(i) any Any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing and any other circumstance 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, 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, notwithstanding any provision in the Lease or any other agreement agreements limiting the liability of Lessor to any Beneficiary or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or rendered.
Appears in 1 contract
Samples: Guaranty (Oxford Automotive Inc)
Guarantor’s Obligations Unconditional. The covenants and agreements of the Guarantor set forth herein in this Guarantee shall be primary obligations of the Guarantor, and such obligations shall be continuing, absolute and unconditional, shall not be subject to any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the Guarantor any Lessee, Guarantor, or any other Person may have against Lessor any Beneficiary or any other Person or otherwise, and shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor or any Lessee shall have any knowledge or notice thereof) including, without limitation:
(a) any amendment, modification, addition, deletion, supplement or renewal to or of or other change in the Obligations, the Lease Obligations or any other Operative Document Agreement or any of the agreements referred to in any thereof, or any other instrument or agreement applicable to any Operative Document Agreement or any of the parties to such agreements, or to the AircraftVehicles, or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee of, guaranty of or right of offset with respect to, any of the Obligations; or the failure or release of any security or the failure of Lessor any Beneficiary to perfect or insure any interest in any collateral, ; or the release or surrender of possession by any Beneficiary of any collateral (including the Collateralwithout limitation any Certificate of Title);
(b) any failure, omission or delay on the part of Lessee Lessees or Lessor any Beneficiary to conform or comply with any term of any instrument or agreement referred to in clause (a) above;
(c) any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guaranteeguaranty, right of offset or security referred to in clause (a) above or any obligation or liability of Lessee Lessees or Lessorany Beneficiary, or any exercise or nonexercise non-exercise by Lessor any Beneficiary of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guaranteeguaranty, right of offset or security or any such obligation or liability;
(d) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to any Lessee, Lessor any Beneficiary or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person trustee or receiver or by any court in any such proceeding;
(e) any limitation on the liability or obligations of any Person under the Lease or any other Operative DocumentAgreement, the Obligations, any collateral security for the Obligations or any other guarantee guaranty of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease or any other agreement, instrument, guarantee guaranty or security referred to in clause (a) above or any term of any thereof;
; (f) any defect in the title, compliance with specifications, condition, design, operation or fitness for use of of, or any damage to or loss or destruction of, or any interruption or cessation in the use of the Aircraft or any part thereof Vehicles by Lessee Lessees 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Guarantor into or with any other corporation or partnership or any sale, lease or transfer of any of the assets of Lessee or the Guarantor to any other Person;
(h) any change in the ownership of the capital stock of Lessee; or
(i) any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing and any other circumstance 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or rendered.
Appears in 1 contract
Samples: Participation Agreement (Consolidated Freightways Corp)
Guarantor’s Obligations Unconditional. The covenants and agreements of the Guarantor set forth herein shall be primary obligations of the GuarantorGuarantors under this Agreement are primary, and such obligations shall be continuingirrevocable, absolute and unconditionalunconditional obligations of the Guarantors, shall are not be subject to any counterclaim, setoffset-off, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the Guarantor Guarantors or any other Person may have against Lessor the Company or any other Person or otherwisePerson, and shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the any Guarantor or Lessee the Company shall have any knowledge or notice thereof) ), including, without limitation, in each case, to the extent permitted by law:
(a) any amendment, modification, addition, deletion, supplement amendment of or renewal to or other change in the Obligations, the Lease or any other Operative Document or any of the agreements referred to in any thereofin, or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee waiver of, or right of offset with respect to, any of the Obligations; or the failure or release of any security or the failure of Lessor to perfect or insure any interest in any collateral, including the CollateralGuaranteed Documents;
(b) any furnishing, acceptance or release of, or any defect in, any security for any of the Guaranteed Obligations;
(c) any failure, omission or delay on the part of Lessee or Lessor the Company to conform or comply with any term of any of the Guaranteed Documents or any other instrument or agreement referred to in clause (a) section 1.1 above, including, without limitation, failure to give notice to any Guarantor of the occurrence of a default or an "Event of Default" under any Guaranteed Document;
(cd) any waiver of the payment, performance or observance of any of the obligations, conditions, covenants or agreements contained in any Guaranteed Document, or any other waiver, consent, extension, indulgence, compromise, settlement, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset the Guaranteed Documents or security any other instrument or agreement referred to in clause (a) section 1.1 above or any obligation or liability of Lessee or Lessorthe Company, or any exercise or nonexercise by Lessor non-exercise of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset instrument or security agreement or any such obligation or liability;
(de) any failure, omission or delay on the part of the holder of any of the Notes to enforce, assert or exercise any right, power or remedy conferred on it in the Note Agreement, or any such failure, omission or delay on the part of such holder in connection with any Guaranteed Document, or any other action on the part of such holder;
(f) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, liquidation receivership, conservatorship, custodianship, liquidation, marshalling of assets and liabilities or similar proceeding proceedings with respect to Lesseethe Company, Lessor any Guarantor or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person trustee or receiver or by any court in any such proceeding;
(eg) any limitation on the liability or obligations of any Person under the Lease Company or any other Operative DocumentPerson under any of the Guaranteed Documents, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease Guaranteed Documents or any other agreement, instrument, guarantee agreement or security instrument referred to in clause (a) section 1.1 above or any term of any thereofhereof;
(fh) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Company or any Guarantor into or with any other corporation or partnership corporation, or any sale, lease or transfer of any of the assets of Lessee the Company or the any Guarantor to any other Person;
(hi) any change in the ownership of the any shares of capital stock of Lesseethe Company, or any change in the corporate relationship between the Company and any Guarantor, or any termination of such relationship;
(j) any release or discharge, by operation of law, of any Guarantor from the performance or observance of any of the Guaranteed Obligations; or
(ik) any other occurrence occurrence, circumstance, happening or circumstance event whatsoever, whether similar or dissimilar to the foregoing foregoing, whether foreseen or unforeseen, and any other circumstance that which might otherwise constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or that which might otherwise limit recourse against the Guarantor. The obligations Guarantors (other than a defense 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, notwithstanding any provision in the Lease payment or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or renderedperformance).
Appears in 1 contract
Samples: Guaranty Agreement (Perma Fix Environmental Services Inc)
Guarantor’s Obligations Unconditional. (a) The covenants and agreements obligations of the Guarantor set forth herein shall be primary constitute the full recourse obligations of the Guarantor enforceable against it to the full extent of all its assets and properties, notwithstanding any provision in the Participation Agreement or any other agreements limiting the liability of the Lessee or any other Person, or any agreement by any Beneficiary to look for payment with respect thereto, solely to collateral.
(b) The Guarantor, and such ’s obligations hereunder are independent of the obligations of the Lessee or any other Person. Each Beneficiary may enforce any of its rights hereunder independently of any other right or remedy that it may hold at any time with respect to the Liabilities or any security or other guaranty therefor. The Guarantor’s obligations hereunder shall be continuing, absolute and unconditional, shall not be subject to any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the Guarantor Lessee, the Guarantor, or any other Person may have against Lessor any Beneficiary or any other Person or otherwise, and shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor or the Lessee shall have any knowledge or notice thereof) including), including without limitation:
(ai) any amendment, modification, addition, deletion, supplement or renewal to or of or other change in the Obligations, the Lease Liabilities or any other Operative Document or any of the agreements instruments referred to in any thereoftherein, or any other instrument or agreement applicable to any Operative Document or any of the parties party to such agreementsinstruments, made in accordance with the terms thereof, or to the AircraftProperty, or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee of, guaranty of or right of offset with respect to, any of the ObligationsLiabilities; or the failure or release of any security or the failure of Lessor any Beneficiary to perfect or insure any interest in any collateral, including the Collateral;
(bii) any failure, omission or delay on the part of the Lessee or Lessor any Beneficiary to conform or comply with any term of any instrument or agreement referred to in clause (ai) above;
(ciii) any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guaranteeguaranty, right of offset or security referred to in clause (ai) above or any obligation or liability of the Lessee or Lessorany Beneficiary, or any exercise or nonexercise non-exercise by Lessor any Beneficiary of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guaranteeguaranty, right of offset or security or any such obligation or liability;
(div) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to the Lessee, Lessor any Beneficiary or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person receiver or court in any such proceeding;
(ev) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the ObligationsLiabilities, any collateral security for the Obligations Liabilities, or any other guarantee guaranty of the Obligations Liabilities or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease foregoing or any other agreement, instrument, guarantee guaranty or security referred to in clause (ai) above or any term of any thereof;
(fvi) any defect in the title, compliance with specifications, condition, design, operation or fitness for use of of, or any damage to or loss or destruction of, or any interruption or cessation in the use of the Aircraft or any part thereof Property by the Lessee or any other Person for any reason whatsoever (including, without limitation, including 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of the Lessee or any other Person;
(gvii) any merger lien, charge or liquidation of Lessee encumbrance on or affecting the Guarantor’s or the Lessee’s respective assets and properties;
(viii) any merger or consolidation of the Lessee or the Guarantor into or with any other corporation or partnership Person or any sale, lease or transfer of any of the assets of the Lessee or the Guarantor to any other Person;
(hix) any change in the ownership of the any shares of capital stock of the Lessee or the Guarantor or any corporate change in the Lessee or the Guarantor;
(x) any change in the name of the Guarantor, the Lessee or any Beneficiary;
(xi) any claim as a result of other dealings between any Beneficiary and the Guarantor or the Lessor;
(xii) the recovery of any judgment against the Lessee, or by the levy of any writ or process of execution under any such judgment, or by any action or proceeding taken by any Beneficiary under any of the Operative Documents for the enforcement thereof, or hereof, or in the exercise of any right or power given or conferred thereby, or hereby, except to the extent that such recovery, levy or other action reduces the outstanding amount of the Liabilities;
(xiii) the acceptance of any additional security or other guaranty, the advance of additional money to the Lessee or any other Person, the renewal or extension of any amounts guaranteed hereby, or the sale, release, substitution or exchange of any security for the amounts guaranteed hereby;
(xiv) any defense (other than the full and indefeasible performance by the Lessee of its obligations under the Operative Documents) whatsoever that the Lessee or any other Person might have to the payment of any of the amounts or obligations guaranteed hereby or to the performance or observance of any of the provisions of any of the Operative Documents, whether through the satisfaction or purported satisfaction by the Lessee 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;
(xv) impossibility or illegality of performance on the part of the Lessee or any other Person of its obligations under the Operative Documents; or
(ixvi) any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing foregoing, and any other circumstance 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.
(c) The Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Liabilities and notice of or proof of reliance by any Beneficiary upon this Guaranty or acceptance of this Guaranty, and the Liabilities, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guaranty. The obligations Guarantor unconditionally waives, to the extent permitted by law:
(i) acceptance of this Guaranty and proof of reliance by any Beneficiary hereon;
(ii) notice of any of the matters referred to in Section 3(b), or any right to consent or assent to any thereof;
(iii) all notices that may be required by statute, rule of law or otherwise, now or hereafter in effect, to preserve intact any rights against the Guarantor, set forth herein constitute including any demand, presentment, protest, proof or notice of nonpayment under any Operative Document, and notice of default or any failure on the full recourse obligations part of the Guarantor enforceable against it Lessee to perform and comply with any covenant, agreement, term or condition of any Operative Document;
(iv) any right to the full extent of all its assets and propertiesenforcement, notwithstanding any provision in the Lease assertion or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights exercise against the Guarantor Lessee of any right, power, privilege or remedy conferred in any Operative Document or otherwise;
(v) any requirement of diligence on the part of any Person;
(vi) any requirement of any Beneficiary to take any action whatsoever, to exhaust any remedies or to mitigate the damages resulting from a default by any Person under any Operative Document or to proceed first against the Lessee;
(vii) any notice of any sale, transfer or other disposition by any Person simultaneouslyof any right under, jointly title to or severally. The Guarantor shall interest in any Operative Document or the Property;
(viii) any and all benefits under Applicable Law;
(ix) presentation, demand for payment, or protest, of any Liability (except such notices to the Lessee as may be bound required under the Operative Documents);
(x) any right to require any Beneficiary to proceed first against the Lessee or against any collateral, security or other support provided or to be provided by each and every ruling, order and judgment obtained by Lessor any Person in respect of any of the obligations guaranteed Operative Documents; and
(xi) any other circumstance that might otherwise constitute a legal or equitable discharge, release or defense of a guarantor or surety, or that might otherwise limit recourse against the Guarantor.
(d) Without limiting the generality of this Guaranty, if an Event of Default under the Master Lease shall have occurred and be continuing and any Beneficiary is prevented by applicable law from exercising its remedies under the Operative Documents, such Beneficiary shall be entitled to receive hereunder whether or from the Guarantor, upon demand therefor, the sums which would have otherwise been due from the Lessee had such remedies been exercised.
(e) In furtherance and not in limitation of the foregoing, the Guarantor is a party hereby agrees upon the bankruptcy or insolvency of the Lessee or the Guarantor, the Notes, the Tranche B Loan, the Equity Investment and all instruments and indebtedness secured by or issued in reliance upon the assignment to the action Agent of the lease payments pursuant to the Master Lease shall be deemed to constitute Liabilities pursuant to this Guaranty and the holders of any such instruments and indebtedness shall be entitled to the rights of a Beneficiary hereunder with respect to such claims.
(f) This Guaranty shall be automatically reinstated if, and to the extent that, for any reason, any payment by or proceeding on behalf of the Lessee or otherwise is rescinded or must be otherwise restored by any Beneficiary, whether as a result of any proceedings in which such ruling, order bankruptcy or judgment is issued reorganization or renderedotherwise.
Appears in 1 contract
Samples: Guaranty (Electronic Arts Inc)
Guarantor’s Obligations Unconditional. The covenants and agreements of the Guarantor each Credit Party set forth herein in this Guaranty of Payment shall be primary obligations of the Guarantorsuch Credit Party, and such obligations shall be continuing, absolute and unconditional, shall not be subject to any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor Credit Party with its obligations hereunder), whether based upon any claim that Lessee or the Guarantor any Credit Party or any other Person may have against Lessor Agent, any Lender or any other Person or otherwise, and shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor Borrowers or Lessee other Company shall have any knowledge or notice thereof) including, without limitation:
(a) any Any amendment, modification, addition, deletion, supplement or renewal to or of or other change in the Obligations, Liabilities or this Agreement or the Lease other Loan Documents or any other Operative Document related instrument or any of the agreements referred to in any thereofagreement, or any other instrument or agreement applicable thereto or to any Operative Document or any of the parties to such agreements, or to the Aircraft, or any assignment, mortgage or transfer thereof or of any interest thereinCollateral, or any furnishing or acceptance of additional security for, guarantee of, guaranty of or right of offset with respect to, any of the ObligationsLiabilities; or the failure or release of any security or the failure of Lessor Agent or any Lender to perfect or insure any interest in any collateral, including the Collateral;
(b) any Any failure, omission or delay on the part of Lessee any Credit Party, Agent or Lessor any Lender to conform or comply with any term of any instrument or agreement referred to in clause subsection (a) above;
(c) any Any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guaranteeguaranty, right of offset or security referred to in clause subsection (a) above or any obligation or liability of Lessee any Credit Party, Agent or Lessorany Lender, or any exercise or nonexercise non-exercise by Lessor Agent or any Lender of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guaranteeguaranty, right of offset or security or any such obligation or liability;
(d) any Any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to Lesseeany Credit Party, Lessor Agent, any Lender or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person interim receiver, receiver and manager, monitor or by any court in any such proceeding;
(e) any Any limitation on the liability or obligations of any Person under this Agreement and the Lease other Loan Documents or any other Operative Documentrelated instrument or agreement, the ObligationsLiabilities, any collateral security for the Obligations Liabilities, or any other guarantee guaranty of the Obligations Liabilities or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease or any other agreement, instrument, guarantee guaranty or security referred to in clause subsection (a) above or any term of any thereof;
(f) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any Any merger or consolidation of the Guarantor Borrowers or any other Credit Party into or with any other corporation or partnership Person or any sale, lease or transfer of any of the assets of Lessee Borrowers or the Guarantor any other Credit Party to any other Person;
(hg) any Any change in the ownership of any of the capital stock equity interests of Lesseeany Borrower or any other Credit Party or any entity change in Borrowers or any other Credit Party; or
(ih) any Any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing and any other circumstance that might otherwise constitute a legal or equitable defense or discharge of the liabilities of a guarantor any Credit Party or surety or that might otherwise limit recourse against the Guarantorany Credit Party. The obligations of the Guarantor, each Credit Party set forth herein constitute the full recourse obligations of the Guarantor such Credit Party, enforceable against it to the full extent of all its assets and properties, notwithstanding any provision in the Lease or any other agreement . Without limiting the liability provisions of Lessor Section 12.1 hereof, each Credit Party waives any and all notice of the creation, renewal, extension or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect accrual of any of the obligations guaranteed hereunder whether Liabilities and notice of or not proof of reliance by Agent and the Guarantor is a party Lenders upon this Guaranty of Payment or acceptance of this Guaranty of Payment, and the Liabilities, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guaranty of Payment. Each Credit Party unconditionally waives, to the extent permitted by law: (a) acceptance of this Guaranty of Payment and proof of reliance by Agent and the Lenders hereon; (b) notice of any of the matters referred to in the foregoing subsections (a) through (h) hereof, or any right to consent or assent to any thereof; (c) all notices that may be required by statute, rule or law or otherwise, now or hereafter in effect, to preserve intact any rights against any Credit Party, including without limitation, any demand, presentment, protest, proof or notice of nonpayment under this Agreement or any other Loan Document or any related instrument or agreement; (d) any right to the enforcement, assertion or exercise against any Credit Party of any right, power, privilege or remedy conferred in this Agreement, any other Loan Document or any related instrument or agreement or otherwise; (e) any requirement of diligence on the part of any Person; (f) any requirement of Agent or any Lender to take any action whatsoever, to exhaust any remedies or proceeding to mitigate the damages resulting from a default under this Agreement, any other Loan Document or any related instrument or agreement; (g) any notice of any sale, transfer or other disposition by any Person of any right under, title to or interest in this Agreement, any other Loan Document or any related instrument or agreement relating thereto or any Collateral for the Liabilities; and (h) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge, release or defense of a guarantor or surety, or that might otherwise limit recourse against a Credit Party. Without limiting the foregoing, each Credit Party hereby absolutely, unconditionally and irrevocably waives and agrees not to assert or take advantage of any defense based upon an election of remedies by Agent or any Lender, including an election to proceed by non-judicial rather than judicial foreclosure, which destroys or impairs any right of subrogation of such rulingCredit Party or the right of such Credit Party to proceed against any Person for reimbursement or both. Each Credit Party agrees that this Guaranty of Payment shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any Borrower or any other Credit Party is rescinded or must be otherwise restored by Agent or any Lender, order whether as a result of any proceedings in bankruptcy or judgment is issued reorganization or renderedotherwise.
Appears in 1 contract
Guarantor’s Obligations Unconditional. The covenants and agreements of the Guarantor set forth herein shall be primary obligations of the Guarantor, and such obligations shall be continuingGuarantors under this Agreement are primary, absolute and unconditionalunconditional obligations of the Guarantors, shall are not be subject to any counterclaim, setoffset-off, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the Guarantor Guarantors or any other Person may have against Lessor the Company or any other Person or otherwisePerson, and shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the any Guarantor or Lessee the Company shall have any knowledge or notice thereof) ), including, without limitation, in each case, to the extent permitted by law:
(a) any amendment, modification, addition, deletion, supplement amendment of or renewal to or other change in the Obligations, the Lease or any other Operative Document or any of the agreements referred to in any thereofin, or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee waiver of, or right of offset with respect to, any of the Obligations; or the failure or release of any security or the failure of Lessor to perfect or insure any interest in any collateral, including the CollateralGuaranteed Documents;
(b) any furnishing, acceptance or release of, or any defect in, any security for any of the Guaranteed Obligations;
(c) any failure, omission or delay on the part of Lessee or Lessor the Company to conform or comply with any term of any of the Guaranteed Documents or any other instrument or agreement referred to in clause (a) section 1.1 above, including, without limitation, failure to give notice to any Guarantor of the occurrence of a default or an "Event of Default" under any Guaranteed Document;
(cd) any waiver of the payment, performance or observance of any of the obligations, conditions, covenants or agreements contained in any Guaranteed Document, or any other waiver, consent, extension, indulgence, compromise, settlement, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset the Guaranteed Documents or security any other instrument or agreement referred to in clause (a) section 1.1 above or any obligation or liability of Lessee or Lessorthe Company, or any exercise or nonexercise by Lessor non-exercise of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset instrument or security agreement or any such obligation or liability;
(de) any failure, omission or delay on the part of the holder of any of the Notes to enforce, assert or exercise any right, power or remedy conferred on it in the Note Agreements, or any such failure, omission or delay on the part of such holder in connection with any Guaranteed Document, or any other action on the part of such holder;
(f) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, liquidation receivership, conservatorship, custodianship, liquidation, marshalling of assets and liabilities or similar proceeding proceedings with respect to Lesseethe Company, Lessor any Guarantor or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person trustee or receiver or by any court in any such proceeding;
(eg) any limitation on the liability or obligations of any Person under the Lease Company or any other Operative DocumentPerson under any of the Guaranteed Documents, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease Guaranteed Documents or any other agreement, instrument, guarantee agreement or security instrument referred to in clause (a) section 1.1 above or any term of any thereofhereof;
(fh) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Company or any Guarantor into or with any other corporation or partnership corporation, or any sale, lease or transfer of any of the assets of Lessee the Company or the any Guarantor to any other Person;
(hi) any change in the ownership of the any shares of capital stock of Lesseethe Company, or any change in the corporate relationship between the Company and any Guarantor, or any termination of such relationship;
(j) any release or discharge, by operation of law, of any Guarantor from the performance or observance of any of the Guaranteed Obligations; or
(ik) any other occurrence occurrence, circumstance, happening or circumstance event whatsoever, whether similar or dissimilar to the foregoing foregoing, whether foreseen or unforeseen, and any other circumstance that which might otherwise constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or that which might otherwise limit recourse against the Guarantor. The obligations Guarantors (other than a defense 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, notwithstanding any provision in the Lease payment or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or renderedperformance).
Appears in 1 contract
Guarantor’s Obligations Unconditional. The covenants (a) Subject to the limitations set forth in Section 2(b) hereof, Guarantors’ obligations hereunder are independent of Lxxxxx’s obligations under the Lease and agreements the other Operative Documents or in respect of any other Person, and the Administrative Agent, for the benefit of the Guarantor set forth herein shall be primary obligations Beneficiaries, may enforce any of its rights hereunder independently of any other right or remedy that it or any other Beneficiary may at any time hold with respect to the Guarantor, and such Liabilities or any security or other guaranty therefor. Such obligations shall be continuing, absolute and unconditional, shall not be subject to any counterclaim, setoff, deductiondeduction (other than deductions or withholdings in respect of Taxes that are permitted by the Operative Documents), diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by indefeasible payment and performance of all of the Guarantor with its obligations hereunderLiabilities), whether based upon any claim that Lessee or the Lessee, Guarantor or any other Person may have against Lessor any Beneficiary or any other Person or otherwise, and shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (other than full and indefeasible payment and performance of all of the Liabilities or as otherwise expressly permitted by Section 17) (whether or not the any Guarantor or Lessee any other Person shall have any knowledge or notice thereof) ), including, without limitation, any of the following:
(aA) subject to the terms of the Lease and the other Operative Documents, any amendment, modification, addition, deletion, supplement or renewal to or of or other change in the Obligations, the Lease Liabilities or any other Operative Document or any of the agreements referred to in any thereof, or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to the AircraftLeased Property, or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee of, guaranty of or right of offset with respect to, any of the ObligationsLiabilities; or the failure or release of any security or the failure of Lessor any Beneficiary to perfect or insure any interest in any collateral, including the Collateral;
(bB) any failure, omission or delay on the part of Lessee Lessee, any Beneficiary or Lessor any other Guarantor to conform or comply with any term of any instrument or agreement referred to in clause (aA) above;
(cC) any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guaranteeguaranty, right of offset or security referred to in clause (aA) above or any obligation or liability of Lessee or Lessorany Beneficiary or any other Person, or any exercise or nonexercise non-exercise by Lessor any Beneficiary or any other Person of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guaranteeguaranty, right of offset or security or any such obligation or liability;
(dD) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to Lessee, Lessor any Beneficiary, any Guarantor or any other Person guarantor or obligor of any Liabilities or any of their respective properties or creditorsproperties, or any action taken by any trustee, receiver, other Person receiver or court in any such proceeding;; Regeneron Pharmaceuticals, Inc. Third Amended and Restated Guaranty
(eE) subject to Sections 15.15 and 15.16 of the Participation Agreement, any limitation on the liability or obligations of any Person (including, without limitation, Lessee) under the Lease or any other Operative Document, the ObligationsLiabilities, any collateral security for the Obligations Liabilities, any other guaranty of the Liabilities or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease foregoing or any other agreement, instrument, guarantee guaranty or security referred to in clause (aA) above or any term of any thereofthereof (other than any such discharge, termination or cancellation as a result of full and indefeasible payment and performance of all of the Liabilities);
(fF) any defect in the title, compliance with specifications, condition, design, operation or fitness for use of of, or any damage to or loss or destruction of, or any interruption or cessation in the use of the Aircraft or any part thereof Leased Property by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(gG) any merger or liquidation of Lessee or any merger or consolidation of the Lessee or any Guarantor into or with any other corporation or partnership Person, or any sale, lease or transfer of any of the assets of Lessee or the any Guarantor to any other Person, except as otherwise expressly provided by Section 17;
(hH) any change in the ownership of the any shares of capital stock of LesseeLessee or any Guarantor or any corporate change in Lessee or any Guarantor, except as otherwise expressly provided by Section 17;
(I) any recovery of judgment against Lxxxxx, or by any levy of any writ or process of execution under any such judgment (except to the extent such recovery indefeasibly reduces the Liabilities);
(J) any legal characterization of the obligations created by the Lease and the other Operative Documents as a lease, a secured financing or otherwise;
(K) absence of any notice to, or knowledge of, Guarantors of the existence or occurrence of any of the foregoing clauses (A) through (J); or
(iL) any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing foregoing, and any other circumstance 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 GuarantorGuarantors (other than full and indefeasible payment and performance of all of the Liabilities or as otherwise expressly permitted by Section 17). The Regeneron Pharmaceuticals, Inc. Third Amended and Restated Guaranty
(b) Subject to the provisions of the last sentence of this paragraph, the obligations of the Guarantor, Guarantors set forth herein constitute the full recourse obligations of the Guarantor Guarantors enforceable against it them on a joint and several basis to the full extent of all its their respective assets and properties, notwithstanding any provision in the Lease or any other agreement limiting Operative Documents Notwithstanding the foregoing or anything to the contrary set forth herein or in any other Operative Document, no Subsidiary Guarantor shall have any liability of Lessor or obligations hereunder (i) unless and until such Subsidiary Guarantor, as a Subsidiary Borrower (as defined in the Bank Credit Agreement), shall make a Borrowing (as defined in the Bank Credit Agreement) under the Bank Credit Agreement and (ii) then only for so long as such Borrowing (or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against Borrowing made by such Subsidiary Borrower) remains outstanding.
(c) Each Guarantor waives any and all notice of the Guarantor creation, renewal, extension or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect accrual of any of the obligations guaranteed hereunder whether Liabilities and notice of or proof of reliance by any Beneficiary upon this Guaranty or acceptance of this Guaranty, and the Liabilities, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guaranty; provided that the foregoing shall not constitute a waiver of any notice specifically required to be given to such Guarantor by any Beneficiary under any of the Operative Documents. Each Guarantor is a party unconditionally waives, to the extent permitted by law: (a) acceptance of this Guaranty and proof of reliance by any Beneficiary hereon; (b) notice of any of the matters referred to in clauses (A) through (L) above (other than any notice specifically required to be given to such Guarantor by any Beneficiary under any of the Operative Documents), or any right to consent or assent to any thereof (except to the extent the consent of such Guarantor with respect thereto is specifically required under any of the Operative Documents); (c) all notices that may be required by statute, rule of law or otherwise, now or hereafter in effect, to preserve intact any rights against Guarantor, including, without limitation, any demand, presentment, protest, proof or notice of nonpayment under any Operative Document, and notice of default or any failure on the part of Lessee to perform and comply with any covenant, agreement, term or condition of any Operative Document (in any such case, other than any notice specifically required to be given to such Guarantor by any Beneficiary under any of the Operative Documents); (d) any right to the enforcement, assertion or exercise against Lessee of any right, power, privilege or remedy conferred in any Operative Document or otherwise; (e) any requirement of diligence on the part of any Person; (f) any requirement of any Beneficiary to take any action whatsoever, to exhaust any remedies or proceeding to mitigate the damages resulting from a default by any Person under any Operative Document; (g) any notice of any sale, transfer or other disposition by any Person of any right under, title to or interest in any Operative Document or the Leased Property; and (h) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge, release or defense of a guarantor or surety, or that might otherwise limit recourse against any Guarantor (other than full and indefeasible payment and performance of all of the Liabilities or as otherwise expressly permitted by Section 17).
(d) Subject to the provisions of Section 2(b), each Guarantor agrees that this Guaranty shall be automatically reinstated if and to the extent that for any reason any payment under any Operative Document by or on behalf of itself or Lessee is rescinded or must be otherwise disgorged or restored by any Beneficiary whether as a result of any proceedings in bankruptcy or reorganization or otherwise.
(e) Each Guarantor further agrees that, without limiting the generality of this Guaranty but subject to the limitations of Section 2(b), if an Event of Default shall have occurred and be continuing and any Beneficiary is prevented by Applicable Law from exercising its remedies under the Operative Documents, the Administrative Agent shall be entitled to receive hereunder from Guarantors, upon demand therefor, the sums which would have otherwise been due from Lessee to any such rulingBeneficiary had such remedies been exercised. Regeneron Pharmaceuticals, order Inc. Third Amended and Restated Guaranty
(f) Notwithstanding anything to the contrary herein, nothing contained in this Section 2 shall (i) prevent the assertion by any Guarantor or judgment is issued Lessee of any claim such Person may have against any Beneficiary by separate suit or renderedproceedings or by compulsory counterclaim or (ii) constitute a waiver of any such claim, including, without limitation, any such claim arising from any breach or non-compliance by any Beneficiary of any Operative Document or any term of any instrument or agreement referred to in clause (A) of the first paragraph of this Section 2.
Appears in 1 contract
Guarantor’s Obligations Unconditional. The covenants and agreements Guarantor's obligations hereunder are independent in respect of any other Person, and, subject to Section 7.5 of the Guarantor set forth herein Loan Agreement, each Beneficiary may enforce any of its rights hereunder independently of any other right or remedy that it may at any time hold with respect to the Liabilities or any security or other guaranty therefor; PROVIDED that no double recovery of the same amount shall be primary obligations of the Guarantor, and such permitted. Such obligations shall be continuing, absolute and unconditional, shall not be subject to any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its their obligations hereunder), whether based upon any claim that Lessee or the Guarantor Lessor, Lessee, Administrative Agent, any Beneficiary or any other Person may have against Lessor any Beneficiary or any other Person or otherwise, and shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor or Lessee any other Person shall have any knowledge or notice thereof) including, without limitation:
(a) A. any amendment, modification, addition, deletion, supplement or renewal to or of or other change in the Obligations, the Lease Liabilities or any other Operative Document or any of the agreements referred to in any thereof, or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to the AircraftProperty, or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee of, guaranty of or right of offset with respect to, any of the ObligationsLiabilities; or the failure or release of any security or the failure of Lessor any Beneficiary to perfect or insure any interest in any collateral, including the Collateral;
(b) B. any failure, omission or delay on the part of Lessee Lessor or Lessor any Beneficiary to conform or comply with any term of any instrument or agreement referred to in clause (a) CLAUSE A above;
(c) C. any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guaranteeguaranty, right of offset or security referred to in clause (a) CLAUSE A above or any obligation or liability of Lessee Lessor or Lessorany Beneficiary, or any exercise or nonexercise non-exercise by Lessor any Beneficiary of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guaranteeguaranty, right of offset or security or any such obligation or liability;
(d) D. any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to Lessee, Lessor or any Beneficiary or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person receiver or court in any such proceeding;
(e) E. any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the ObligationsLiabilities, any collateral security for the Obligations Liabilities, any other guaranty of the Liabilities or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease foregoing or any other agreement, instrument, guarantee guaranty or security referred to in clause (a) A above or any term of any thereof;
(f) F. any defect in the title, compliance with specifications, condition, design, operation or fitness for use of of, or any damage to or loss or destruction of, or any interruption or cessation in the use of the Aircraft or any part thereof Property by Lessee or any other Person for any reason whatsoever (including, without limitation, including 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of any Lessee or any other Person;
(g) any merger or liquidation of Lessee or G. any merger or consolidation of the Lessor, Lessee or Guarantor into or with any other corporation or partnership Person, or any sale, lease or transfer of any of the assets of Lessor, Lessee or the Guarantor to any other Person;
(h) H. any change in the ownership of the any shares of capital stock or partnership interests of Lessee; orLessor, Lessee or Guarantor or any corporate change in Lessor, Lessee or Guarantor;
(i) I. any loan to or other transaction, between the Beneficiaries, or any of them, and Lessee or Lessor;
J. any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing foregoing, and any other circumstance 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, Guarantor set forth herein constitute the full recourse obligations of the Guarantor enforceable against it to the full extent of all of its assets and properties, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor Operative Document or any other Persondocument or agreement to the contrary. Nothing herein shall prohibit Lessor from exercising its rights against Guarantor waives any and all notice of the Guarantor creation, renewal, extension or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect accrual of any of the obligations guaranteed hereunder whether Liabilities and notice of or not proof of reliance by any Beneficiary upon this Guaranty or acceptance of this Guaranty, and the Liabilities, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guaranty. Guarantor is a party Guarantor agrees that this Guaranty shall be automatically reinstated if and to the action extent that for any reason any payment by or proceeding on behalf of itself or Lessor is rescinded or must be otherwise restored by any Beneficiary whether as a result of any proceedings in bankruptcy or reorganization or otherwise. Guarantor further agrees that, without limiting the generality of this Guaranty, if a Lessee Event of Default shall have occurred and be continuing and any Beneficiary is prevented by Applicable Law from exercising its remedies under the Operative Documents, such Beneficiary shall be entitled to receive hereunder from Guarantor, upon demand therefor, the sums which would have otherwise been due from Lessee had such ruling, order or judgment is issued or renderedremedies been exercised.
Appears in 1 contract
Samples: Guaranty (Reebok International LTD)
Guarantor’s Obligations Unconditional. The covenants and agreements obligations of the each Guarantor set forth herein under this Guaranty shall be primary obligations of the Guarantor, and such obligations shall be continuingprimary, absolute and unconditionalunconditional obligations of each Guarantor, shall not be subject to any counterclaim, setoffset-off, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the each Guarantor or any other Person may have against Lessor the Company or any other Person or otherwisePerson, and to the full extent permitted by applicable law shall remain in full force and effect without regard to, and except as provided in Section 9.7(b) of the Note Purchase Agreement, shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever other than indefeasibly payment in full of the Obligations (whether or not the each Guarantor or Lessee the Company shall have any knowledge or notice thereof) ), including, without limitation:
(a) any amendmenttermination, modification, addition, deletion, amendment or modification of or deletion from or addition or supplement or renewal to or other change in the Obligations, the Lease or any other Operative Document or any of the agreements referred to in any thereof, Note Documents or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to any of the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or Note Documents;
(b) any furnishing or acceptance of additional security for, guarantee ofany security, or right any release of offset with respect toany security, any of for the Obligations; , or the failure or release of any security or the failure of Lessor any Person to perfect or insure any interest in any collateral, including the Collateral;
(bc) any failure, omission or delay on the part of Lessee or Lessor the Company to conform or comply with any term of any of the Note Documents or any other instrument or agreement referred to in clause paragraph (a) above, including, without limitation, failure to give notice to any Guarantor of the occurrence of a “Default” or an “Event of Default” under any Note Document;
(cd) any waiver of the payment, performance or observance of any of the obligations, conditions, covenants or agreements contained in any Note Document, or any other waiver, consent, extension, indulgence, compromise, settlement, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset the Note Documents or security any other instrument or agreement referred to in clause paragraph (a) above or any obligation or liability of Lessee or Lessorthe Company, or any exercise or nonexercise by Lessor non-exercise of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset instrument or security agreement or any such obligation or liability;
(de) any failure, omission or delay on the part of any of the Holders to enforce, assert or exercise any right, power or remedy conferred on such Holder in this Guaranty, or any such failure, omission or delay on the part of such Holder in connection with any Note Document, or any other action on the part of such Holder;
(f) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, liquidation receivership, conservatorship, custodianship, liquidation, marshaling of assets and liabilities or similar proceeding proceedings with respect to Lesseethe Company, Lessor any Guarantor or to any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person trustee or receiver or by any court in any such proceeding;
(eg) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease Note Documents or any other agreement, instrument, guarantee agreement or security instrument referred to in clause paragraph (a) above or any term of any thereofhereof;
(fh) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Company or any Guarantor into or with any other corporation or partnership corporation, or any sale, lease or transfer of any of the assets of Lessee the Company or the any Guarantor to any other Person;
(hi) any change in the ownership of the any shares of capital stock of Lesseethe Company or any change in the corporate relationship between the Company and any Guarantor, or any termination of such relationship;
(j) any release or discharge, by operation of law, of any Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty; or
(ik) any other occurrence occurrence, circumstance, happening or circumstance event whatsoever, whether similar or dissimilar to the foregoing foregoing, whether foreseen or unforeseen, and any other circumstance that which might otherwise constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or that which might otherwise limit recourse against the any 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or rendered.
Appears in 1 contract
Guarantor’s Obligations Unconditional. The covenants Guarantors' obligations hereunder are independent in respect of any other Person, and agreements each Beneficiary may enforce any of its rights hereunder independently of any other right or remedy that it may at any time hold with respect to the Liabilities or any security or other guaranty therefor; provided that no double recovery of the Guarantor set forth herein same amount shall be primary obligations of the Guarantor, and such permitted. Such obligations shall be continuing, absolute and unconditional, shall not be subject to any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor Guarantors with its their obligations hereunder), whether based upon any claim that Lessee or the Guarantor Lessor, Lessee, Agent, any Beneficiary or any other Person may have against Lessor any Beneficiary or any other Person or otherwise, and shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor Guarantors or Lessee any other Person shall have any knowledge or notice thereof) including, without limitation:
(a) A. any amendment, modification, addition, deletion, supplement or renewal to or of or other change in the Obligations, the Lease Liabilities or any other Operative Document or any of the agreements referred to in any thereof, or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to the AircraftSites, or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee of, guaranty of Structural Guaranty or right of offset with respect to, any of the ObligationsLiabilities; or the failure or release of any security or the failure of Lessor any Beneficiary to perfect or insure any interest in any collateral, including the Collateral;
(b) B. any failure, omission or delay on the part of Lessee Lessor or Lessor any Beneficiary to conform or comply with any term of any instrument or agreement referred to in clause (aA) above;
(c) C. any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guaranteeguaranty, right of offset or security referred to in clause (aA) above or any obligation or liability of Lessee Lessor or Lessorany Beneficiary, or any exercise or nonexercise non-exercise by Lessor any Beneficiary of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guaranteeguaranty, right of offset or security or any such obligation or liability;
(d) D. any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to Lessee, Lessor or any Beneficiary or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person receiver or court in any such proceeding;
(e) E. any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the ObligationsLiabilities, any collateral security for the Obligations Liabilities, any other guaranty of the Liabilities or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease foregoing or any other agreement, instrument, guarantee guaranty or security referred to in clause (aA) above or any term of any thereof;
(f) F. any defect in the title, compliance with specifications, condition, design, operation or fitness for use of of, or any damage to or loss or destruction of, or any interruption or cessation in the use of the Aircraft or any part thereof Sites by 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 Structural Guaranty thereof (even though such duration would otherwise constitute a frustration of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or G. any merger or consolidation of the Guarantor Lessor, Lessee or Guarantors into or with any other corporation or partnership Person, or any sale, lease or transfer of any of the assets of Lessor, Lessee or the Guarantor Guarantors to any other Person;
(h) H. any change in the ownership of the any shares of capital stock of LesseeLessor, Lessee or Guarantors or any corporate change in Lessor, Lessee or Guarantors;
I. any loan to or other transaction between the Beneficiaries, or any of them, and Lessee or Lessor; or
(i) J. any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing foregoing, and any other circumstance 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 GuarantorGuarantors. The obligations of the Guarantor, Guarantors set forth herein constitute the full recourse obligations of the Guarantor Guarantors enforceable against it them to the full extent of all its of their assets and properties, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor Operative Document or any other Persondocument or agreement to the contrary. Nothing herein shall prohibit Lessor from exercising its rights against Guarantors waive any and all notice of the Guarantor creation, renewal, extension or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect accrual of any of the obligations guaranteed hereunder whether Liabilities and notice of or not proof of reliance by any Beneficiary upon this Guaranty or acceptance of this Guaranty, and the Guarantor is a party Liabilities, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guaranty. Guarantors unconditionally waive, to the extent permitted by law: (a) acceptance of this Guaranty and proof of reliance by any Beneficiary hereon; (b) notice of any of the matters referred to in clauses A through J above, or any right to consent or assent to any thereof; (c) all notices that may be required by statute, rule of law or otherwise, now or hereafter in effect, to preserve intact any rights against Guarantors, including, without limitation, any demand, presentment, protest, proof or notice of nonpayment under any Operative Document, and notice of default or any failure on the part of Lessor to perform and comply with any covenant, agreement, term or condition of any Operative Document; (d) any right to the enforcement, assertion or exercise against Lessor of any right, power, privilege or remedy conferred in any Structural Guaranty Operative Document or otherwise; (e) any requirement of diligence on the part of any Person; (f) any requirement of any Beneficiary to take any action whatsoever, to exhaust any remedies or proceeding to mitigate the damages resulting from a default by any Person under any Operative Document; (g) any notice of any sale, transfer or other disposition by any Person of any right under, title to or interest in any Operative Document or the Sites; and (h) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge, release or defense of a guarantor or surety, or that might otherwise limit recourse against Guarantors. Guarantors agree that this Guaranty shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of itself or Lessor is rescinded or must be otherwise restored by any Beneficiary whether as a result of any proceedings in bankruptcy or reorganization or otherwise. Guarantors further agree that, without limiting the generality of this Guaranty, if an Event of Default shall have occurred and be continuing and any Beneficiary is prevented by applicable law from exercising its remedies under the Operative Documents, such Beneficiary shall be entitled to receive hereunder from Guarantors, upon demand therefor, the sums which would have otherwise been due from Lessee had such ruling, order or judgment is issued or renderedremedies been exercised.
Appears in 1 contract
Samples: Guaranty and Agreement of Suretyship (Genesis Health Ventures Inc /Pa)
Guarantor’s Obligations Unconditional. (a) The covenants and agreements obligations of the Guarantor set forth herein shall be primary constitute the full recourse obligations of the Guarantor enforceable against it to the full extent of all its assets and properties, notwithstanding any provision in the Participation Agreement or any other agreements limiting the liability of the Lessee or any other Person, or any agreement by any Beneficiary to look for payment with respect thereto, solely to collateral.
(b) The Guarantor, and such ’s obligations hereunder are independent of the obligations of the Lessee or any other Person. Each Beneficiary may enforce any of its rights hereunder independently of any other right or remedy that it may hold at any time with respect to the Liabilities or any security or other guaranty therefor. The Guarantor’s obligations hereunder shall be continuing, absolute and unconditional, shall not be subject to any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the Guarantor Lessee, the Guarantor, or any other Person may have against Lessor any Beneficiary or any other Person or otherwise, and shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor or the Lessee shall have any knowledge or notice thereof) including), including without limitation:
(ai) any amendment, modification, addition, deletion, supplement or renewal to or of or other change in the Obligations, the Lease Liabilities or any other Operative Document or any of the agreements instruments referred to in any thereoftherein, or any other instrument or agreement applicable to any Operative Document or any of the parties party to such agreementsinstruments, made in accordance with the terms thereof, or to the AircraftProperty, or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee of, guaranty of or right of offset with respect to, any of the ObligationsLiabilities; or the failure or release of any security or the failure of Lessor any Beneficiary to perfect or insure any interest in any collateral, including the Collateral;
(bii) any failure, omission or delay on the part of the Lessee or Lessor any Beneficiary to conform or comply with any term of any instrument or agreement referred to in clause (ai) above;
(ciii) any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guaranteeguaranty, right of offset or security referred to in clause (ai) above or any obligation or liability of the Lessee or Lessorany Beneficiary, or any exercise or nonexercise non-exercise by Lessor any Beneficiary of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guaranteeguaranty, right of offset or security or any such obligation or liability;
(div) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to the Lessee, Lessor any Beneficiary or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person receiver or court in any such proceeding;
(ev) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the ObligationsLiabilities, any collateral security for the Obligations Liabilities, or any other guarantee guaranty of the Obligations Liabilities or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease foregoing or any other agreement, instrument, guarantee guaranty or security referred to in clause (ai) above or any term of any thereof;
(fvi) any defect in the title, compliance with specifications, condition, design, operation or fitness for use of of, or any damage to or loss or destruction of, or any interruption or cessation in the use of the Aircraft or any part thereof Property by the Lessee or any other Person for any reason whatsoever (including, without limitation, including 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of the Lessee or any other Person;
(gvii) any merger lien, charge or liquidation of Lessee encumbrance on or affecting the Guarantor’s or the Lessee’s respective assets and properties;
(viii) any merger or consolidation of the Lessee or the Guarantor into or with any other corporation or partnership Person or any sale, lease or transfer of any of the assets of the Lessee or the Guarantor to any other Person;
(hix) any change in the ownership of the any shares of capital stock of the Lessee or the Guarantor or any corporate change in the Lessee or the Guarantor;
(x) any change in the name of the Guarantor, the Lessee or any Beneficiary;
(xi) any claim as a result of other dealings between any Beneficiary and the Guarantor or the Lessor;
(xii) the recovery of any judgment against the Lessee, or by the levy of any writ or process of execution under any such judgment, or by any action or proceeding taken by any Beneficiary under any of the Operative Documents for the enforcement thereof, or hereof, or in the exercise of any right or power given or conferred thereby, or hereby, except to the extent that such recovery, levy or other action reduces the outstanding amount of the Liabilities;
(xiii) the acceptance of any additional security or other guaranty, the advance of additional money to the Lessee or any other Person, the renewal or extension of any amounts guaranteed hereby, or the sale, release, substitution or exchange of any security for the amounts guaranteed hereby;
(xiv) any defense (other than the full and indefeasible performance by the Lessee of its obligations under the Operative Documents) whatsoever that the Lessee or any other Person might have to the payment of any of the amounts or obligations guaranteed hereby or to the performance or observance of any of the provisions of any of the Operative Documents, whether through the satisfaction or purported satisfaction by the Lessee 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;
(xv) impossibility or illegality of performance on the part of the Lessee or any other Person of its obligations under the Operative Documents; or
(ixvi) any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing foregoing, and any other circumstance 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.
(c) The Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Liabilities and notice of or proof of reliance by any Beneficiary upon this Guaranty or acceptance of this Guaranty, and the Liabilities, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guaranty. The obligations Guarantor unconditionally waives, to the extent permitted by law:
(i) acceptance of this Guaranty and proof of reliance by any Beneficiary hereon;
(ii) notice of any of the matters referred to in Section 3(b), or any right to consent or assent to any thereof;
(iii) all notices that may be required by statute, rule of law or otherwise, now or hereafter in effect, to preserve intact any rights against the Guarantor, set forth herein constitute including any demand, presentment, protest, proof or notice of nonpayment under any Operative Document, and notice of default or any failure on the full recourse obligations part of the Guarantor enforceable against it Lessee to perform and comply with any covenant, agreement, term or condition of any Operative Document;
(iv) any right to the full extent of all its assets and propertiesenforcement, notwithstanding any provision in the Lease assertion or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights exercise against the Guarantor Lessee of any right, power, privilege or remedy conferred in any Operative Document or otherwise;
(v) any requirement of diligence on the part of any Person;
(vi) any requirement of any Beneficiary to take any action whatsoever, to exhaust any remedies or to mitigate the damages resulting from a default by any Person under any Operative Document or to proceed first against the Lessee;
(vii) any notice of any sale, transfer or other disposition by any Person simultaneouslyof any right under, jointly title to or severally. The Guarantor shall interest in any Operative Document or the Property;
(viii) any and all benefits under Applicable Law;
(ix) presentation, demand for payment, or protest, of any Liability (except such notices to the Lessee as may be bound required under the Operative Documents);
(x) any right to require any Beneficiary to proceed first against the Lessee or against any collateral, security or other support provided or to be provided by each and every ruling, order and judgment obtained by Lessor any Person in respect of any of the obligations guaranteed Operative Documents; and
(xi) any other circumstance that might otherwise constitute a legal or equitable discharge, release or defense of a guarantor or surety, or that might otherwise limit recourse against the Guarantor.
(d) Without limiting the generality of this Guaranty, if a Lease Event of Default under the Master Lease shall have occurred and be continuing and any Beneficiary is prevented by applicable law from exercising its remedies under the Operative Documents, such Beneficiary shall be entitled to receive hereunder whether or from the Guarantor, upon demand therefor, the sums which would have otherwise been due from the Lessee had such remedies been exercised.
(e) In furtherance and not in limitation of the foregoing, the Guarantor is a party hereby agrees upon the bankruptcy or insolvency of the Lessee or the Guarantor, the Notes, and all instruments and indebtedness secured by or issued in reliance upon the assignment to the action Collateral Agent of the lease payments pursuant to the Master Lease shall be deemed to constitute Liabilities pursuant to this Guaranty and the holders of any such instruments and indebtedness shall be entitled to the rights of a Beneficiary hereunder with respect to such claims.
(f) This Guaranty shall be automatically reinstated if, and to the extent that, for any reason, any payment by or proceeding on behalf of the Lessee or otherwise is rescinded or must be otherwise restored by any Beneficiary, whether as a result of any proceedings in which such ruling, order bankruptcy or judgment is issued reorganization or renderedotherwise.
Appears in 1 contract
Samples: Guaranty (Electronic Arts Inc)
Guarantor’s Obligations Unconditional. The covenants Guarantor’s obligations hereunder are independent of Lessee’s obligations under the Lease and agreements the other Operative Documents or in respect of the Guarantor set forth herein shall be primary obligations of the Guarantorany other Person, and each Beneficiary may enforce any of its rights hereunder independently of any other right or remedy that it may at any time hold with respect to the Liabilities or any security or other guaranty therefor. To the extent permitted by Law, such obligations shall be continuing, absolute and unconditional, shall not be subject to any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by indefeasible payment and performance of all of the Guarantor with its obligations hereunderLiabilities), whether based upon any claim that Lessee or the Lessee, Guarantor or any other Person may have against Lessor any Beneficiary or any other Person or otherwise, and shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (other than full and indefeasible payment and performance of all of the Liabilities) (whether or not the Guarantor or Lessee any other Person shall have any knowledge or notice thereof) including, without limitation:
(aA) subject to the terms of the Lease and the other Operative Documents, any amendment, modification, addition, deletion, supplement or renewal to or of or other change in the Obligations, the Lease Liabilities or any other Operative Document or any of the agreements referred to in any thereof, or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to the AircraftLeased Property, or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee of, guaranty of or right of offset with respect to, any of the ObligationsLiabilities; or the failure or release of any security or the failure of Lessor any Beneficiary to perfect or insure any interest in any collateral, including the Collateral;
(bB) any failure, omission or delay on the part of Lessee Lessee, any Beneficiary or Lessor any other Person to conform or comply with any term of any instrument or agreement referred to in clause clause
(aA) above;
(cC) any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guaranteeguaranty, right of offset or security referred to in clause (aA) above or any obligation or liability of Lessee or Lessorany Beneficiary or any other Person, or any exercise or nonexercise non-exercise by Lessor any Beneficiary or any other Person of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guaranteeguaranty, right of offset or security or any such obligation or liability;
(dD) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to Lessee, Lessor Lessee or any Beneficiary or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person receiver or court in any such proceeding;
(eE) any limitation on the liability or obligations of any Person (including, without limitation, Lessee) under the Lease or any other Operative Document, the ObligationsLiabilities, any collateral security for the Obligations Liabilities, any other guaranty of the Liabilities or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease foregoing or any other agreement, instrument, guarantee guaranty or security referred to in clause (aA) above or any term of any thereof;
(fF) any defect in the title, compliance with specifications, condition, design, operation or fitness for use of of, or any damage to or loss or destruction of, or any interruption or cessation in the use of the Aircraft or any part thereof Leased Property by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(gG) any merger or liquidation of Lessee or any merger or consolidation of the Lessee or Guarantor into or with any other corporation or partnership Person, or any sale, lease or transfer of any of the assets of Lessee or the Guarantor to any other Person;
(hH) any change in the ownership of the any shares of capital stock of Lessee or Guarantor or any corporate change in Lessee or Guarantor;
(I) any recovery of judgment against Lessee, or by any levy of any writ or process of execution under any such judgment (except to the extent such recovery indefeasibly reduces the Liabilities);
(J) any legal characterization of the obligations created by the Lease and the other Operative Documents as a lease, a secured financing or otherwise;
(K) absence of any notice to, or knowledge of, Guarantor of the existence or occurrence of any of the foregoing clauses (A) through (J); or
(iL) any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing foregoing, and any other circumstance 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, 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, notwithstanding any provision in the Lease or any other agreement limiting Operative Documents. Guarantor waives any and all notice of the liability of Lessor creation, renewal, extension or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect accrual of any of the obligations guaranteed hereunder whether Liabilities and notice of or not proof of reliance by any Beneficiary upon this Guaranty or acceptance of this Guaranty, and the Liabilities, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guaranty. Guarantor is a party unconditionally waives, to the extent permitted by law:
(a) acceptance of this Guaranty and proof of reliance by any Beneficiary hereon; (b) notice of any of the matters referred to in clauses (A) through (L) above, or any right to consent or assent to any thereof; (c) all notices that may be required by statute, rule of law or otherwise, now or hereafter in effect, to preserve intact any rights against Guarantor, including, without limitation, any demand, presentment, protest, proof or notice of nonpayment under any Operative Document, and notice of default or any failure on the part of Lessee to perform and comply with any covenant, agreement, term or condition of any Operative Document; (d) any right to the enforcement, assertion or exercise against Lessee of any right, power, privilege or remedy conferred in any Operative Document or otherwise; (e) any requirement of diligence on the part of any Person; (f) any requirement of any Beneficiary to take any action whatsoever, to exhaust any remedies or proceeding to mitigate the damages resulting from a default by any Person under any Operative Document; (g) any notice of any sale, transfer or other disposition by any Person of any right under, title to or interest in any Operative Document or the Leased Property; and (h) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge, release or defense of a guarantor or surety, or that might otherwise limit recourse against Guarantor. Guarantor agrees that this Guaranty shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of itself or Lessee is rescinded or must be otherwise restored by any Beneficiary whether as a result of any proceedings in bankruptcy or reorganization or otherwise. Norfolk Southern Corporation Guaranty Guarantor further agrees that, without limiting the generality of this Guaranty, if an Event of Default shall have occurred and be continuing and any Beneficiary is prevented by Applicable Law from exercising its remedies under the Operative Documents, such Beneficiary shall be entitled to receive hereunder from Guarantor, upon demand therefor, the sums which would have otherwise been due from Lessee had such ruling, order or judgment is issued or renderedremedies been exercised.
Appears in 1 contract
Samples: Guaranty
Guarantor’s Obligations Unconditional. The covenants and agreements obligations of the Guarantor set forth herein under this Guaranty shall be primary primary, absolute and unconditional obligations of the Guarantor, and such obligations shall be continuing, absolute and unconditional, shall not be subject to any counterclaim, setoffset-off, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the Guarantor or any other Person person may have against Lessor the Company or any other Person or otherwiseperson, and to the full extent permitted by applicable law shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor or Lessee the Company shall have any knowledge or notice thereof) ), including, without limitation:
(a) any amendmenttermination, modification, addition, deletion, amendment or modification of or deletion from or addition or supplement or renewal to or other change in the Obligations, the Lease or any other Operative Document or any of the agreements referred to in any thereof, Note Documents or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to any of the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or Note Documents;
(b) any furnishing or acceptance of additional security for, guarantee ofany security, or right any release of offset with respect toany security, any of for the Obligations; , or the failure or release of any security or the failure of Lessor any person to perfect or insure any interest in any collateral, including the Collateral;
(bc) any failure, omission or delay on the part of Lessee or Lessor the Company to conform or comply with any term of any of the Note Documents or any other instrument or agreement referred to in clause paragraph (a) above, including, without limitation, failure to give notice to the Guarantor of the occurrence of a “Default” or an “Event of Default” under any Note Document;
(cd) any waiver of the payment, performance or observance of any of the obligations, conditions, covenants or agreements contained in any Note Document, or any other waiver, consent, extension, indulgence, compromise, settlement, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset the Note Documents or security any other instrument or agreement referred to in clause paragraph (a) above or any obligation or liability of Lessee or Lessorthe Company, or any exercise or nonexercise by Lessor non-exercise of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset instrument or security agreement or any such obligation or liability;
(de) any failure, omission or delay on the part of any of the Holders to enforce, assert or exercise any right, power or remedy conferred on such Holder in this Guaranty, or any such failure, omission or delay on the part of such Holder in connection with any Note Document, or any other action on the part of such Holder;
(f) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, liquidation receivership, conservatorship, custodianship, liquidation, marshaling of assets and liabilities or similar proceeding proceedings with respect to Lesseethe Company, Lessor the Guarantor or to any other Person person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person trustee or receiver or by any court in any such proceeding;
(e) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease or any other agreement, instrument, guarantee or security referred to in clause (a) above or any term of any thereof;
(f) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Guarantor into or with any other corporation or partnership or any sale, lease or transfer of any of the assets of Lessee or the Guarantor to any other Person;
(h) any change in the ownership of the capital stock of Lessee; or
(i) any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing and any other circumstance 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or rendered.
Appears in 1 contract
Guarantor’s Obligations Unconditional. The covenants and agreements obligations of the each Guarantor set forth herein under this Guaranty shall be primary obligations of the Guarantor, and such obligations shall be continuingprimary, absolute and unconditionalunconditional obligations of each Guarantor, shall not be subject to any counterclaim, setoffset-off, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the each Guarantor or any other Person person may have against Lessor the Company or any other Person or otherwiseperson, and to the full extent permitted by applicable law shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the each Guarantor or Lessee the Company shall have any knowledge or notice thereof) ), including, without limitation:
(a) any amendmenttermination, modification, addition, deletion, amendment or modification of or deletion from or addition or supplement or renewal to or other change in the Obligations, the Lease or any other Operative Document or any of the agreements referred to in any thereof, Notes Documents or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to any of the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or Notes Documents;
(b) any furnishing or acceptance of additional security for, guarantee ofany security, or right any release of offset with respect toany security, any of for the Notes Obligations; , or the failure or release of any security or the failure of Lessor any person to perfect or insure any interest in any collateral, including the Collateral;
(bc) any failure, omission or delay on the part of Lessee or Lessor the Company to conform or comply with any term of any of the Notes Documents or any other instrument or agreement referred to in clause paragraph (a) above, including, without limitation, failure to give notice to any Guarantor of the occurrence of a “Default” or an “Event of Default” under any Notes Document;
(cd) any waiver of the payment, performance or observance of any of the obligations, conditions, covenants or agreements contained in any Notes Document, or any other waiver, consent, extension, indulgence, compromise, settlement, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset the Notes Documents or security any other instrument or agreement referred to in clause paragraph (a) above or any obligation or liability of Lessee or Lessorthe Company, or any exercise or nonexercise by Lessor non-exercise of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset instrument or security agreement or any such obligation or liability;
(de) any failure, omission or delay on the part of Noteholder Representative or any of the Noteholders to enforce, assert or exercise any right, power or remedy conferred on Noteholder Representative or such Noteholder in this Guaranty, or any such failure, omission or delay on the part of Noteholder Representative or such Noteholder in connection with any Notes Document, or any other action on the part of Noteholder Representative or such Noteholder;
(f) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, liquidation receivership, conservatorship, custodianship, liquidation, marshaling of assets and liabilities or similar proceeding proceedings with respect to Lesseethe Company, Lessor or any other Person Guarantor or to any other person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person trustee or receiver or by any court in any such proceeding;
(eg) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease Notes Documents or any other agreement, instrument, guarantee agreement or security instrument referred to in clause paragraph (a) above or any term of any thereofhereof;
(fh) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Company or any Guarantor into or with any other corporation or partnership Person, or any sale, lease or transfer of any of the assets of Lessee the Company or the any Guarantor to any other Personperson;
(hi) any change in the ownership of the any shares of capital stock of Lesseethe Company or any change in the corporate relationship between the Company and any Guarantor, or any termination of such relationship;
(j) any release or discharge, by operation of law, of any other Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty; or
(ik) any other occurrence occurrence, circumstance, happening or circumstance event whatsoever, whether similar or dissimilar to the foregoing foregoing, whether foreseen or unforeseen, and any other circumstance that which might otherwise constitute a legal or equitable defense (other than the defense of payment) or discharge of the liabilities of a guarantor or surety or that which might otherwise limit recourse against the any 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or rendered.
Appears in 1 contract
Guarantor’s Obligations Unconditional. The covenants and agreements Guarantor's obligations hereunder are independent of the Guarantor set forth herein shall be primary obligations of the GuarantorSeller or any other Person, and such each Beneficiary may enforce any of its rights hereunder independently of any other right or remedy that it may at any time hold with respect to the Liabilities or any security or other guaranty therefor. Such obligations shall be continuing, absolute and unconditional, shall not be subject to any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by indefeasible payment and performance of all of the Guarantor with its obligations hereunderLiabilities), whether based upon any claim that Lessee or the Guarantor Seller, the Guarantor, any Beneficiary or any other Person may have against Lessor any Beneficiary or any other Person or otherwise, and shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (other than full and indefeasible payment and performance of all of the Liabilities) (whether or not the Guarantor Guarantor, the Seller or Lessee any other Person shall have any knowledge or notice thereof) including, without limitation:
(aA) subject to the terms of the Transaction Documents, any amendment, modification, addition, deletion, supplement or renewal to or of or other change in the Obligations, the Lease Liabilities or any other Operative Transaction Document or any of the agreements referred to in any thereof, or any other instrument or agreement applicable to any Operative Transaction Document or any of the parties to such agreements, or to the AircraftPurchaser Interest, the Receivables or any portion thereof, or any assignment, mortgage mortgage, encumbrance or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee of, guaranty of or right of offset with respect to, any of the ObligationsLiabilities; or the failure or release of any security or the failure of Lessor any Beneficiary or any other Person to perfect or insure any interest in any collateral, including the Collateral;
(bB) any failure, omission impossibility, illegality, omission, limitation or delay on the part of Lessee the Seller, any Beneficiary or Lessor any other Person to conform or comply with any term of any instrument or agreement referred to in clause (aA) above;
(cC) any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any Transaction Document, any instrument, agreement, guaranteeguaranty, right of offset or security referred to in clause (aA) above or any obligation or liability of Lessee the Seller, any Beneficiary or Lessorany other Person, or any exercise or nonexercise non-exercise by Lessor any Beneficiary or any other Person of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guaranteeguaranty, right of offset or security or any such obligation or liability;
(dD) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation liquidation, administration or similar proceeding with respect to Lesseethe Seller, Lessor any Beneficiary or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person receiver or court in any such proceeding;
(eE) any limitation on the liability or obligations of any Person (including, without limitation, the Seller) under the Lease or any other Operative Transaction Document, the ObligationsLiabilities, any collateral security for the Obligations Liabilities, or any other guarantee guaranty of the Obligations Liabilities or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease foregoing or any other agreement, instrument, guarantee guaranty or security referred to in clause (aA) above or any term of any thereof;
(fF) any defect in the titletitle of, compliance with specificationsthe definition of “Eligible Receivable” with respect to, condition, design, operation or fitness for use of or any damage to or loss or destruction oflien on, or any interruption or cessation in the use failure of the Aircraft or any part thereof by Lessee or any other Person for any reason whatsoever (including, without limitationan Obligor to make payment on, 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 of a lease)Receivable, whether or not resulting from accident and whether or not without fault on the part of Lessee the Seller or any other Person;
(gG) any merger or liquidation of Lessee or any merger or consolidation of the Seller or the Guarantor into or with any other corporation or partnership Person or any sale, lease or transfer of any of the assets of Lessee the Seller or the Guarantor to any other Person;
(hH) any change in the ownership of the any shares of capital stock of Lesseethe Seller or the Guarantor or any corporate change in the Seller or the Guarantor;
(I) any change in, limitation to or cessation of the commercial dealings, contractual relationship, economic interests or other support agreements, rights or benefits between the Guarantor and the Seller;
(J) any loan to or other transaction between any of the Beneficiaries or any other Person and the Guarantor or the Seller;
(K) any recovery of judgment against the Seller, or by any levy of any writ or process of execution under any such judgment (except to the extent such recovery indefeasibly reduces the Liabilities);
(L) absence of any notice to, or knowledge of, the Guarantor of the existence or occurrence of any of the foregoing clauses (A) through (K); or
(iM) any other occurrence or circumstance whatsoeverwhatsoever (other than full and indefeasible payment and performance of all of the Liabilities), whether similar or dissimilar to the foregoing foregoing, and any other circumstance 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, 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, notwithstanding any provision in the Lease Receivables Purchase Agreement, any other Transaction Document or any other document or agreement limiting to the liability contrary. The Guarantor waives any and all notice of Lessor the creation, renewal, extension or accrual of any of the Liabilities and notice of or proof of reliance by any Beneficiary or other PersonPerson upon this Guarantee or acceptance of this Guarantee, and the Liabilities, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guarantee. Nothing herein shall prohibit Lessor from exercising its rights against the The Guarantor unconditionally waives: (a) acceptance of this Guarantee and proof of reliance by any Beneficiary or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect hereon; (b) notice of any of the obligations guaranteed hereunder whether matters referred to in clauses (A) through (M) above, or not any right to consent or assent to any thereof; (c) all notices that may be required by statute, rule of law or otherwise, now or hereafter in effect, to preserve intact any rights against the Guarantor is a party Guarantor, including, without limitation, any demand, presentment, protest, proof or notice of nonpayment under any Transaction Document, and notice of default or any failure on the part of the Seller to perform and comply with any covenant, agreement, term or condition of any Transaction Document; (d) any right to the enforcement, assertion or exercise against the Seller of any right, power, privilege or remedy conferred in any Transaction Document or otherwise; (e) any requirement of diligence on the part of any Person; (f) any requirement of any Beneficiary or any other Person to take any action whatsoever, to exhaust any remedies, proceed first against the Seller, or proceeding to mitigate the damages resulting from a default by any Person under any Transaction Document; (g) any notice of any sale, transfer or other disposition by any Person of any right under, title to or interest in which such rulingany Transaction Document; and (h) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge, order release or judgment defense of a guarantor or surety, or that might otherwise limit, prohibit, curtail, diminish or prevent recourse against the Guarantor. The Guarantor agrees that this Guarantee shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of itself or the Seller is issued rescinded or renderedmust be otherwise restored by any Beneficiary, whether as a result of any proceedings in bankruptcy or reorganization or otherwise.
Appears in 1 contract
Samples: Parent Guarantee (Meredith Corp)
Guarantor’s Obligations Unconditional. The covenants and ------------------------------------- agreements of the Guarantor set forth herein in this Guaranty shall be primary obligations of the Guarantor, and such obligations shall be continuing, absolute and unconditional, shall not be subject to any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the Guarantor any Lessee, Guarantor, or any other Person may have against Lessor any Beneficiary or any other Person or otherwise, and shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor or any Lessee shall have any knowledge or notice thereof) including, without limitation:
(a) any amendment, modification, addition, deletion, supplement or renewal to or of or other change in the Obligations, the Lease Obligations or any other Operative Document Agreement or any of the agreements referred to in any thereof, or any other instrument or agreement applicable to any Operative Document Agreement or any of the parties to such agreements, or to the AircraftCollateral, or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee of, guaranty of or right of offset with respect to, any of the Obligations; or the failure or release of any security or the failure of Lessor any Beneficiary to perfect or insure any interest in any collateral, including Collateral; or the Collateral;
(b) release or surrender of possession by any failure, omission or delay on the part of Lessee or Lessor to conform or comply with any term Beneficiary of any instrument or agreement referred to in clause (a) aboveCollateral;
(c) any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guaranteeguaranty, right of offset or security referred to in clause ------ (a) above or any obligation or liability of Lessee Lessees or Lessorany --- Beneficiary, or any exercise or nonexercise non-exercise by Lessor any Beneficiary of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guaranteeguaranty, right of offset or security or any such obligation or liability;
(d) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to any Lessee, Lessor any Beneficiary or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person trustee or receiver or by any court in any such proceeding;
(e) any limitation on the liability or obligations of any Person under the Lease or any other Operative DocumentAgreement, the Obligations, any collateral security for the Obligations or any other guarantee guaranty of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease or any other agreement, instrument, guarantee or security referred to in clause (a) above or any term of any thereof;the
(f) any defect in the title, compliance with specifications, condition, design, operation or fitness for use of of, or any damage to or loss or destruction of, or any interruption or cessation in the use of the Aircraft or any part thereof Collateral by Lessee Lessees 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee Lessees or any other Person;
(g) any merger or liquidation consolidation of any Lessee or any merger or consolidation of the Guarantor into or with any other corporation or partnership Person or any sale, lease or transfer of any of the assets of any Lessee or the Guarantor to any other Person;
(h) any change in the ownership of the any shares of capital stock of any Lessee, or any corporate change in any Lessee; or
(i) any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing and any other circumstance 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or rendered.
Appears in 1 contract
Samples: Guaranty (Jp Foodservice Inc)
Guarantor’s Obligations Unconditional. The covenants Guarantors’ obligations hereunder are independent of Lessee’s obligations under the Lease and agreements the other Operative Documents or in respect of any other Person, and the Administrative Agent, for the benefit of the Guarantor set forth herein shall be primary obligations Beneficiaries, may enforce any of its rights hereunder independently of any other right or remedy that it or any other Beneficiary may at any time hold with respect to the Guarantor, and such Liabilities or any security or other guaranty therefor. Such obligations shall be continuing, absolute and unconditional, shall not be subject to any counterclaim, setoff, deductiondeduction (other than deductions or withholdings in respect of Taxes that are permitted by the Operative Documents), diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by indefeasible payment and performance of all of the Guarantor with its obligations hereunderLiabilities), whether based upon any claim that Lessee or the Lessee, Guarantor or any other Person may have against Lessor any Beneficiary or any other Person or otherwise, and shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (other than full and indefeasible payment and performance of all of the Liabilities or as otherwise expressly permitted by Section 17) (whether or not the any Guarantor or Lessee any other Person shall have any knowledge or notice thereof) ), including, without limitation, any of the following:
(aA) subject to the terms of the Lease and the other Operative Documents, any amendment, modification, addition, deletion, supplement or renewal to or of or other change in the Obligations, the Lease Liabilities or any other Operative Document or any of the agreements referred to in any thereof, or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to the AircraftLeased Property, or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee of, guaranty of or right of offset with respect to, any of the ObligationsLiabilities; or the failure or release of any security or the failure of Lessor any Beneficiary to perfect or insure any interest in any collateral, including the Collateral;
(bB) any failure, omission or delay on the part of Lessee Lessee, any Beneficiary or Lessor any other Guarantor to conform or comply with any term of any instrument or agreement referred to in clause (aA) above;
(cC) any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guaranteeguaranty, right of offset or security referred to in clause (aA) above or any obligation or liability of Lessee or Lessorany Beneficiary or any other Person, or any exercise or nonexercise non-exercise by Lessor any Beneficiary or any other Person of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guaranteeguaranty, right of offset or security or any such obligation or liability;
(dD) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to Lessee, Lessor any Beneficiary, any Guarantor or any other Person guarantor or obligor of any Liabilities or any of their respective properties or creditorsproperties, or any action taken by any trustee, receiver, other Person receiver or court in any such proceeding;
(eE) subject to Sections 15.15 and 15.16 of the Participation Agreement, any limitation on the liability or obligations of any Person (including, without limitation, Lessee) under the Lease or any other Operative Document, the ObligationsLiabilities, any collateral security for the Obligations Liabilities, any other guaranty of the Liabilities or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease foregoing or any other agreement, instrument, guarantee guaranty or security referred to in clause (aA) above or any term of any thereof;thereof (other than any such discharge, termination or cancellation as a result of full and indefeasible payment and performance of all of the Liabilities); Regeneron Pharmaceuticals, Inc. Second Amended and Restated Guaranty
(fF) any defect in the title, compliance with specifications, condition, design, operation or fitness for use of of, or any damage to or loss or destruction of, or any interruption or cessation in the use of the Aircraft or any part thereof Leased Property by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(gG) any merger or liquidation of Lessee or any merger or consolidation of the Lessee or any Guarantor into or with any other corporation or partnership Person, or any sale, lease or transfer of any of the assets of Lessee or the any Guarantor to any other Person, except as otherwise expressly provided by Section 17;
(hH) any change in the ownership of the any shares of capital stock of Lessee or any Guarantor or any corporate change in Lessee or any Guarantor, except as otherwise expressly provided by Section 17;
(I) any recovery of judgment against Lessee, or by any levy of any writ or process of execution under any such judgment (except to the extent such recovery indefeasibly reduces the Liabilities);
(J) any legal characterization of the obligations created by the Lease and the other Operative Documents as a lease, a secured financing or otherwise;
(K) absence of any notice to, or knowledge of, Guarantors of the existence or occurrence of any of the foregoing clauses (A) through (J); or
(iL) any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing foregoing, and any other circumstance 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 GuarantorGuarantors (other than full and indefeasible payment and performance of all of the Liabilities or as otherwise expressly permitted by Section 17). The obligations of the Guarantor, Guarantors set forth herein constitute the full recourse obligations of the Guarantor Guarantors enforceable against it them on a joint and several basis to the full extent of all its their respective assets and properties, notwithstanding any provision in the Lease or any other agreement limiting Operative Documents. Regeneron Pharmaceuticals, Inc. Second Amended and Restated Guaranty Each Guarantor waives any and all notice of the liability of Lessor creation, renewal, extension or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect accrual of any of the obligations guaranteed hereunder whether Liabilities and notice of or proof of reliance by any Beneficiary upon this Guaranty or acceptance of this Guaranty, and the Liabilities, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guaranty; provided that the foregoing shall not constitute a waiver of any notice specifically required to be given to such Guarantor by any Beneficiary under any of the Operative Documents. Each Guarantor is a party unconditionally waives, to the extent permitted by law: (a) acceptance of this Guaranty and proof of reliance by any Beneficiary hereon; (b) notice of any of the matters referred to in clauses (A) through (L) above (other than any notice specifically required to be given to such Guarantor by any Beneficiary under any of the Operative Documents), or any right to consent or assent to any thereof (except to the extent the consent of such Guarantor with respect thereto is specifically required under any of the Operative Documents); (c) all notices that may be required by statute, rule of law or otherwise, now or hereafter in effect, to preserve intact any rights against Guarantor, including, without limitation, any demand, presentment, protest, proof or notice of nonpayment under any Operative Document, and notice of default or any failure on the part of Lessee to perform and comply with any covenant, agreement, term or condition of any Operative Document (in any such case, other than any notice specifically required to be given to such Guarantor by any Beneficiary under any of the Operative Documents); (d) any right to the enforcement, assertion or exercise against Lessee of any right, power, privilege or remedy conferred in any Operative Document or otherwise; (e) any requirement of diligence on the part of any Person; (f) any requirement of any Beneficiary to take any action whatsoever, to exhaust any remedies or proceeding to mitigate the damages resulting from a default by any Person under any Operative Document; (g) any notice of any sale, transfer or other disposition by any Person of any right under, title to or interest in any Operative Document or the Leased Property; and (h) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge, release or defense of a guarantor or surety, or that might otherwise limit recourse against any Guarantor (other than full and indefeasible payment and performance of all of the Liabilities or as otherwise expressly permitted by Section 17). Each Guarantor agrees that this Guaranty shall be automatically reinstated if and to the extent that for any reason any payment under any Operative Document by or on behalf of itself or Lessee is rescinded or must be otherwise disgorged or restored by any Beneficiary whether as a result of any proceedings in bankruptcy or reorganization or otherwise. Each Guarantor further agrees that, without limiting the generality of this Guaranty, if an Event of Default shall have occurred and be continuing and any Beneficiary is prevented by Applicable Law from exercising its remedies under the Operative Documents, the Administrative Agent shall be entitled to receive hereunder from Guarantors, upon demand therefor, the sums which would have otherwise been due from Lessee to any such rulingBeneficiary had such remedies been exercised. Notwithstanding anything to the contrary herein, order nothing contained in this Section 2 shall (i) prevent the assertion by any Guarantor or judgment is issued Lessee of any claim such Person may have against any Beneficiary by separate suit or rendered.proceedings or by compulsory counterclaim or (ii) constitute a waiver of any such claim, including, without limitation, any such claim arising from any breach or non-compliance by any Beneficiary of any Operative Document or any term of any instrument or agreement referred to in clause (A) of the first paragraph of this Section 2. Regeneron Pharmaceuticals, Inc. Second Amended and Restated Guaranty
Appears in 1 contract
Guarantor’s Obligations Unconditional. The covenants (a) Each Guarantor hereby unconditionally, absolutely and agreements irrevocably guaranties that the Guarantied Obligations will be paid strictly in accordance with the terms of the Loan Documents, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Agent and the Lenders with respect thereto. Each Guarantor set forth herein agrees that this Guaranty constitutes a guaranty of payment when due and not of collection and waives any right to require that any resort be made by the Agent and the Lenders to any Collateral. The obligations of each Guarantor under this Guaranty are independent of any other Credit Party’s obligations under this Financing Agreement and the other Loan Documents, and a separate action or actions may be brought and prosecuted against any Guarantor to enforce this Guaranty, irrespective of whether any action is brought against the Company or any other Credit Party or whether the Company or any other Credit Party is joined in any such action. The liability of each Guarantor hereunder shall be primary obligations absolute and unconditional irrespective of: (i) any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto; (ii) any change in the time, manner or place of payment of, or in any other term in respect of, all or any of the GuarantorGuarantied Obligations, and such obligations shall be continuingor any other amendment or waiver of or consent to any departure from any Loan Document or any agreement or instrument relating thereto; (iii) any exchange or release of, absolute and unconditionalor non-perfection of any lien on or security interest in, shall any Collateral, or any release or amendment or waiver of or consent to any departure from any other guaranty, for all or any of the Guarantied Obligations; (iv) the existence of any claim, set-off, defense or other right that any Guarantor may have at any time against any person, including, without limitation, the Agent or any Lender; or (v) any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Company or any other Credit Party in respect of the Guarantied Obligations or the Guarantor in respect hereof. This Guaranty will not be subject affected by the occurrence of any Event of Default or Default, by any present or future action of any governmental authority or court amending, modifying, varying, reducing or otherwise affecting or purporting to amend, modify, vary, reduce or otherwise affect any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction of the Guarantied Obligations or by any other circumstances which might constitute a legal or equitable discharge or defense of a surety or guarantor (other than full by complete and strict compliance by irrevocable payment of the Guarantor with its obligations hereunderGuarantied Obligations), whether based upon any claim that Lessee or the Guarantor or any other Person may have against Lessor or any other Person or otherwise, .
(b) This Guaranty (i) is a continuing guaranty and shall remain in full force and effect without regard to, and shall not, to until the fullest extent permitted by applicable laws, be released, discharged or satisfaction in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor or Lessee shall have any knowledge or notice thereof) including, without limitation:
(a) any amendment, modification, addition, deletion, supplement or renewal to or other change in the Obligations, the Lease or any other Operative Document or any full of the agreements referred to in any thereof, or any other instrument or agreement applicable to any Operative Document or any Guarantied Obligations and the payment of the parties other expenses to such agreementsbe paid by each Guarantor pursuant hereto; and (ii) shall continue to be effective or shall be reinstated, or to as the Aircraftcase may be, or if at any assignment, mortgage or transfer thereof or of time any interest therein, or any furnishing or acceptance of additional security for, guarantee of, or right of offset with respect to, any of the Obligations; or the failure or release of any security or the failure of Lessor to perfect or insure any interest in any collateral, including the Collateral;
(b) any failure, omission or delay on the part of Lessee or Lessor to conform or comply with any term of any instrument or agreement referred to in clause (a) above;
(c) any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset or security referred to in clause (a) above or any obligation or liability of Lessee or Lessor, or any exercise or nonexercise by Lessor of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset or security or any such obligation or liability;
(d) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to Lessee, Lessor or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person or court in any such proceeding;
(e) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, payment of any of the foregoing, Guarantied Obligations is rescinded or must otherwise be returned by the obligations under the Lease Agent or any other agreementLender upon the insolvency, instrument, guarantee bankruptcy or security referred to in clause (a) above or any term reorganization of any thereof;
(f) any defect in the titleCredit Party or otherwise, compliance with specifications, 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 any part thereof by 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 all as though such duration would otherwise constitute a frustration of a lease), whether or payment had not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Guarantor into or with any other corporation or partnership or any sale, lease or transfer of any of the assets of Lessee or the Guarantor to any other Person;
(h) any change in the ownership of the capital stock of Lessee; or
(i) any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing and any other circumstance 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or renderedbeen made.
Appears in 1 contract
Guarantor’s Obligations Unconditional. The covenants and agreements 2.1 Guarantor's obligations hereunder are independent of the Guarantor set forth herein shall be primary obligations of Lessee, the GuarantorTrust, Certificate Trustee, or any other Person, and each Beneficiary may enforce any of its rights hereunder independently of any other right or remedy that it may at any time hold with respect to the Liabilities or any security or other guaranty therefor. To the extent permitted by law, such obligations shall be continuing, absolute and unconditional, shall not be subject to any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and indefeasible payment and performance of all of the Liabilities and full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or Lessee, the Guarantor Trust, Certificate Trustee, Guarantor, any Beneficiary or any other Person may have against Lessor any Beneficiary or any other Person or otherwise, and shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (other than full and indefeasible payment and performance of all of the Liabilities and all of Guarantor's obligations hereunder), whether or not Lessee, the Trust, Certificate Trustee, Guarantor or Lessee any other Person shall have any knowledge or notice thereof) , including, without limitation:
(a) A. any amendment, modification, addition, deletion, supplement or renewal to or of or other change in the Obligations, the Lease Liabilities or any other Operative Document or any of the agreements referred to in any thereof, or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to the AircraftLeased Property, any other Teletech Collateral, or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee of, guaranty of or right of offset with respect to, any of the ObligationsLiabilities; or the failure or release of any security or the failure of Lessor any Beneficiary to perfect or insure any interest in the Leased Property or any collateral, including the other Teletech Collateral;
(b) B. any failure, omission or delay on the part of Lessee Lessee, the Trust, Certificate Trustee, any Beneficiary or Lessor any other Person to conform or comply with any term of any instrument or agreement referred to in clause (aA) above;
(c) C. any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guaranteeguaranty, right of offset or security referred to in clause CLAUSE (aA) above or any obligation or liability of Lessee Lessee, Certificate Trustee or Lessorany Beneficiary, or any exercise or nonexercise non-exercise by Lessor any Beneficiary of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guaranteeguaranty, right of offset or security or any such obligation or liability;
(d) D. any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to Lessee, Lessor the Trust, Certificate Trustee, any Beneficiary or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person receiver or court in any such proceeding;
(e) E. except as provided in the second sentence of SECTION 2.2 hereof, any limitation on the liability or obligations of any Person (including Lessee, the Trust or the Certificate Trustee) under the Lease or any other Operative Document, the ObligationsLiabilities, any collateral security for the Obligations Liabilities (including the Teletech Collateral), or any other guarantee guaranty of the Obligations Liabilities or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease foregoing or any other agreement, instrument, guarantee guaranty or security referred to in clause CLAUSE (aA) above or any term of any thereof;
(f) F. any defect in the title, compliance with specifications, condition, design, operation or fitness for use of of, or any damage to or loss or destruction of, or any interruption or cessation in the use of the Aircraft Leased Property or any part thereof other Teletech Collateral by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee Lessee, the Trust, Certificate Trustee or any other Person;
(g) any merger or liquidation of Lessee or G. any merger or consolidation of Lessee, the Trust or Guarantor into or with any other corporation or partnership Person or any sale, lease or transfer of any of the assets of Lessee Lessee, the Trust, Certificate Trustee or the Guarantor to any other Person;
(h) H. any change in the ownership of the any shares of capital stock of Lessee or Guarantor or any corporate change in or reorganization of Lessee or Guarantor;
I. any loan to or other transaction between any of the Beneficiaries and Guarantor, the Trust, Certificate Trustee or Lessee; or
(i) J. any other occurrence or circumstance whatsoeverwhatsoever (other than full and indefeasible payment and performance of all of the Liabilities and all of Guarantor's obligations hereunder), whether similar or dissimilar to the foregoing foregoing, and any other circumstance 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. .
2.2 The obligations of the Guarantor, 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, notwithstanding any provision in the Lease Participation Agreement, any other Operative Document or any other document or agreement limiting to the liability contrary. Guarantor's obligations hereunder will be reduced by the amount of Lessor or any other Personall non-refundable payments made by Lessee under and pursuant to the terms of the Operative Documents. Nothing herein shall prohibit Lessor from exercising its rights against Notwithstanding the Guarantor or any other Person simultaneouslyforegoing, jointly or severally. The Guarantor shall not be bound by each and every rulingrequired to pay more under this Guarantee than Lessee is required to pay pursuant to the Operative Documents, order and judgment obtained by Lessor solely as a result of (i) in respect of any connection with a Condemnation or Casualty, the application of the obligations guaranteed hereunder whether provisions of Sections 14.1(e) or not 15.2(b) of the Guarantor is a party to Lease, or (ii) if Lessee elects the action or proceeding in which such rulingSale Option, order or judgment is issued or rendered.the limitation of Lessee's liability at Section 20.1(k)
Appears in 1 contract
Guarantor’s Obligations Unconditional. The covenants and agreements of the Guarantor set forth herein shall be primary obligations of the Guarantor, and such obligations shall be continuingGuarantor under this Agreement are primary, absolute and unconditionalunconditional obligations of Guarantor, shall are not be subject to any counterclaim, setoffset-off, deduction, diminution, abatement, recoupment, suspension, deferment, reduction deferment or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the Guarantor or any other Person person may have against Lessor Grantee, Beneficiary or any other Person or otherwiseperson, and shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor or Lessee Grantee shall have any knowledge or notice thereof) ), including, without limitation:
(a) any amendmentamendment of or change in, modification, addition, deletion, supplement or renewal to termination or other change in the Obligationswaiver of, the Lease or any other Operative Document or any of the agreements referred to in any thereof, or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee of, or right of offset with respect to, any of the Obligations; or the failure or release of any security or the failure of Lessor to perfect or insure any interest in any collateral, including the CollateralIRU Agreement;
(b) any failurefurnishing, omission acceptance or delay on release of, or any defect in any security for, any of the part of Lessee or Lessor to conform or comply with any term of any instrument or agreement referred to in clause (a) aboveGuaranteed Obligations;
(c) any waiver of the payment, performance or observance of any of the obligations, conditions, covenants or agreements contained in the IRU Agreement, or any other waiver, consent, extension, indulgence, compromise, settlement, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset or security referred to in clause (a) above or any obligation or liability of Lessee or Lessor, or any exercise or nonexercise by Lessor of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset or security or any such obligation or liabilitythe IRU Agreement;
(d) any failure, omission or delay on the part of Beneficiary to enforce, assert or exercise any right, power or remedy conferred on it in this Agreement;
(e) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, liquidation receivership, conservatorship, custodianship, liquidation, marshalling of assets and liabilities or similar proceeding proceedings with respect to Lessee, Lessor Grantee or any other Person person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person trustee or receiver or by any court in any such proceeding;
(ef) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease or any other agreement, instrument, guarantee or security referred to in clause (a) above or any term of any thereof;
(f) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other PersonIRU Agreement;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Grantee or Guarantor into or with any other corporation or partnership corporation, or any sale, lease or transfer of any of the assets of Lessee Grantee or the Guarantor to any other Personperson;
(h) any change in the ownership of any [membership interests in][capital stock of] Grantee, or any change in the capital stock corporate relationship between Grantee and Guarantor, or any termination of Lesseesuch relationship; or
(i) any other occurrence occurrence, circumstance, happening or circumstance event whatsoever, whether similar or dissimilar to the foregoing foregoing, whether foreseen or unforeseen, and any other circumstance that which might otherwise constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or that which 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or rendered.
Appears in 1 contract
Samples: Cost Sharing and Iru Agreement (Nextlink Communications Inc / De)
Guarantor’s Obligations Unconditional. The covenants and agreements of the Guarantor each Credit Party set forth herein in this Guaranty of Payment shall be primary obligations of the Guarantorsuch Credit Party, and such obligations shall be continuing, absolute and unconditional, shall not be subject to any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor Credit Party with its obligations hereunder), whether based upon any claim that Lessee or the Guarantor any Credit Party or any other Person may have against Lessor Agent, any Lender or any other Person or otherwise, and shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor Borrowers or Lessee other Company shall have any knowledge or notice thereof) including, without limitation:
(a) any Any amendment, modification, addition, deletion, supplement or renewal to or of or other change in the Obligations, Liabilities or this Agreement or the Lease other Loan Documents or any other Operative Document related instrument or any of the agreements referred to in any thereofagreement, or any other instrument or agreement applicable thereto or to any Operative Document or any of the parties to such agreements, or to the Aircraft, or any assignment, mortgage or transfer thereof or of any interest thereinCollateral, or any furnishing or acceptance of additional security for, guarantee of, guaranty of or right of offset with respect to, any of the ObligationsLiabilities; or the failure or release of any security or the failure of Lessor Agent or any Lender to perfect or insure any interest in any collateral, including the Collateral;
(b) any Any failure, omission or delay on the part of Lessee any Credit Party, Agent or Lessor any Lender to conform or comply with any term of any instrument or agreement referred to in clause subsection (a) above;
(c) any Any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guaranteeguaranty, right of offset or security referred to in clause subsection (a) above or any obligation or liability of Lessee any Credit Party, Agent or Lessorany Lender, or any exercise or nonexercise non-exercise by Lessor Agent or any Lender of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guaranteeguaranty, right of offset or security or any such obligation or liability;
(d) any Any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to Lesseeany Credit Party, Lessor Agent, any Lender or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person monitor or receiver or by any court in any such proceeding;
(e) any Any limitation on the liability or obligations of any Person under this Agreement and the Lease other Loan Documents or any other Operative Documentrelated instrument or agreement, the ObligationsLiabilities, any collateral security for the Obligations Liabilities, or any other guarantee guaranty of the Obligations Liabilities or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease or any other agreement, instrument, guarantee guaranty or security referred to in clause subsection (a) above or any term of any thereof;
(f) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any Any merger or consolidation of the Guarantor Borrowers or any other Credit Party into or with any other corporation or partnership Person or any sale, lease or transfer of any of the assets of Lessee Borrowers or the Guarantor any other Credit Party to any other Person;
(hg) any Any change in the ownership of any of the capital stock equity interests of Lesseeany Borrower or any other Credit Party or any entity change in Borrowers or any other Credit Party; or
(ih) any Any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing and any other circumstance that might otherwise constitute a legal or equitable defense or discharge of the liabilities of a guarantor any Credit Party or surety or that might otherwise limit recourse against the Guarantorany Credit Party. The obligations of the Guarantor, each Credit Party set forth herein constitute the full recourse obligations of the Guarantor such Credit Party, enforceable against it to the full extent of all its assets and properties, notwithstanding any provision in the Lease or any other agreement . Without limiting the liability provisions of Lessor Section 12.1 hereof, each Credit Party waives any and all notice of the creation, renewal, extension or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect accrual of any of the obligations guaranteed hereunder whether Liabilities and notice of or not proof of reliance by Agent and the Guarantor is a party Lenders upon this Guaranty of Payment or acceptance of this Guaranty of Payment, and the Liabilities, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guaranty of Payment. Each Credit Party unconditionally waives, to the extent permitted by law: (a) acceptance of this Guaranty of Payment and proof of reliance by Agent and the Lenders hereon; (b) notice of any of the matters referred to in the foregoing subsections (a) through (h) hereof, or any right to consent or assent to any thereof; (c) all notices that may be required by statute, rule or law or otherwise, now or hereafter in effect, to preserve intact any rights against any Credit Party, including without limitation, any demand, presentment, protest, proof or notice of nonpayment under this Agreement or any other Loan Document or any related instrument or agreement; (d) any right to the enforcement, assertion or exercise against any Credit Party of any right, power, privilege or remedy conferred in this Agreement, any other Loan Document or any related instrument or agreement or otherwise; (e) any requirement of diligence on the part of any Person; (f) any requirement of Agent or any Lender to take any action whatsoever, to exhaust any remedies or proceeding to mitigate the damages resulting from a default under this Agreement, any other Loan Document or any related instrument or agreement; (g) any notice of any sale, transfer or other disposition by any Person of any right under, title to or interest in this Agreement, any other Loan Document or any related instrument or agreement relating thereto or any Collateral for the Liabilities; and (h) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge, release or defense of a guarantor or surety, or that might otherwise limit recourse against a Credit Party. Without limiting the foregoing, each Credit Party hereby absolutely, unconditionally and irrevocably waives and agrees not to assert or take advantage of any defense based upon an election of remedies by Agent or any Lender, including an election to proceed by non-judicial rather than judicial foreclosure, which destroys or impairs any right of subrogation of such rulingCredit Party or the right of such Credit Party to proceed against any Person for reimbursement or both. Each Credit Party agrees that this Guaranty of Payment shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any Borrower or any other Credit Party is rescinded or must be otherwise restored by Agent or any Lender, order whether as a result of any proceedings in bankruptcy or judgment is issued reorganization or renderedotherwise.
Appears in 1 contract
Guarantor’s Obligations Unconditional. The covenants and agreements 2.1 Guarantor's obligations hereunder are independent of the Guarantor set forth herein shall be primary obligations of the GuarantorLessee, any other PPL Group Member, or any other Person, and such each Beneficiary may enforce any of its rights hereunder independently of any other right or remedy that it may at any time hold with respect to the Liabilities or any security or other guaranty therefor. Such obligations shall be continuing, absolute and unconditional, shall not be subject to any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and indefeasible payment and performance of all of the Liabilities and full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the Guarantor Lessee, Guarantor, any Beneficiary or any other Person may have against Lessor any Beneficiary or any other Person or otherwise, and shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (other than full and indefeasible payment and performance of all of the Liabilities and all of Guarantor's obligations hereunder) (whether or not the Guarantor Guarantor, Lessee, any other PPL Group Member, or Lessee any other Person shall have any knowledge or notice thereof) ), including, without limitation:
(a) any amendment, modification, addition, deletion, supplement or renewal to or of or other change in the Obligations, the Lease Liabilities or any other Operative Document Agreement or any of the agreements referred to in any thereof, or any other instrument or agreement applicable to any Operative Document Agreement or any of the parties to such agreements, or to the AircraftAssets or the other Collateral, or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee of, guaranty of or right of offset with respect to, any of the ObligationsLiabilities; or the failure or release of any security or the failure of Lessor any Beneficiary to perfect or insure any interest in any collateral, including the Collateral;
(b) any failure, omission or delay on the part of Lessee or Lessor to conform or comply with any term of any instrument or agreement referred to in clause (a) above;
(c) any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guaranteeguaranty (including the PPL Corporation Guarantee), right of offset or security referred to in clause (a) above or any obligation or liability of Lessee or Lessorany ---------- Beneficiary, or any exercise or nonexercise non-exercise by Lessor any Beneficiary of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guaranteeguaranty, right of offset or security or any such obligation or liability;
(d) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to Lessee, Lessor any other PPL Group Member, any Beneficiary or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person receiver or court in any such proceeding;
(e) except as provided in the second sentence of Section 2.2 hereof, ----------- any limitation on the liability or obligations of any Person under the Lease (including, without limitation, Lessee or any other PPL Group Member) under any Operative DocumentAgreement, the ObligationsLiabilities, any collateral security for the Obligations Liabilities including the Assets and the other Collateral, or any other guarantee guaranty of the Obligations Liabilities or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease foregoing or any other agreement, instrument, guarantee guaranty or security referred to in clause (a) above or ---------- any term of any thereof;
(f) any defect in the title, compliance with specifications, condition, design, operation or fitness for use of of, or any damage to or loss or destruction of, or any interruption or cessation in the use of the Aircraft Assets or the other Collateral by Lessee, any part thereof by Lessee other PPL Group Member, 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee Lessee, any other PPL Group Member, or any other Person;
(g) any merger or liquidation consolidation of Lessee Lessee, the Trust, Trustee, Guarantor or any merger or consolidation of the Guarantor other PPL Group Member into or with any other corporation or partnership Person or any sale, lease or transfer of any of the assets of Lessee Lessee, the Trust, Trustee , Guarantor or the Guarantor any other PPL Group Member to any other Person;
(h) any change in the ownership of the any shares of capital stock of Lessee; orLessee or Guarantor or any corporate change in or reorganization of Lessee or Guarantor;
(i) any loan to or other transaction between any of the Beneficiaries and Guarantor, the Trust, Trustee, Lessee, or any other PPL Group Member;
(j) any other occurrence or circumstance whatsoeverwhatsoever (other than full and indefeasible payment and performance of all of the Liabilities and all of Guarantor's obligations hereunder), whether similar or dissimilar to the foregoing foregoing, and any other circumstance 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 Guarantor; or
(k) any assignment or grant of a security interest by any Participant of such Participant's right, title and interest in its Certificate or Note or in the Guarantor. Collateral.
2.2 The obligations of the Guarantor, 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, notwithstanding any provision in the Lease Participation Agreement, any other Operative Agreement or any other document or agreement limiting to the contrary. Notwithstanding the foregoing, Guarantor shall not be required to pay more under this Guarantee than Lessee is required to pay pursuant to the Operative Agreements, solely as a result of the application of a limitation on the recourse liability of Lessor Lessee as set forth at (i) Sections 3.2(c) or 3.4(c) of the Supervisory Agreement or Section 16.3 of the Participation Agreement to the extent Lessee's liability to make payment is limited to the Aggregate C&A Recourse Amount, the applicable Lease Supplement Recourse Amount or the Aggregate Permitted Asset Balance or (ii) if Lessee elects the Sale Option, Article XX of the Lease. Except as specifically stated in the immediately preceding sentence, the limitations set forth in the immediately preceding sentence will not effect or limit any of the other Personobligations of Guarantor under this Guarantee. Nothing herein shall prohibit Lessor from exercising its rights against Guarantor waives any and all notice of the Guarantor creation, renewal, extension or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect accrual of any of the obligations guaranteed hereunder whether Liabilities and notice of or not proof of reliance by any Beneficiary upon this Guarantee or acceptance of this Guarantee, and the Liabilities, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guarantee. Guarantor is a party unconditionally waives, to the extent permitted by law: (a) acceptance of this Guarantee and proof of reliance by any Beneficiary hereon; (b) notice of any of the matters referred to in clauses (a) through (k) of Section 2.1 hereof, or any ----------- --- ----------- right to consent or assent to any thereof; (c) all notices that may be required by statute, rule of law or otherwise, now or hereafter in effect, to preserve intact any rights against Guarantor, including, without limitation, any demand, presentment, protest, proof or notice of nonpayment under any Operative Agreement, and notice of default or any failure on the part of Lessee to perform and comply with any covenant, agreement, term or condition of any Operative Agreement; (d) any right to the enforcement, assertion or exercise against Lessee or PPL Corporation of any right, power, privilege or remedy conferred in any Operative Agreement or otherwise; (e) any requirement of diligence on the part of any Person; (f) any requirement of any Beneficiary to take any action whatsoever, to exhaust any remedies or proceeding to mitigate the damages resulting from a default by any Person under any Operative Agreement; (g) any notice of any sale, transfer or other disposition by any Person of any right under, title to or interest in any Operative Agreement or the Assets including the other Collateral or any other collateral and (h) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge, release or defense of a guarantor or surety, or that might otherwise limit recourse against Guarantor.
2.3 Guarantor agrees that this Guarantee shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of Lessee, or PPL Corporation as guarantor under the PPL Corporation Guarantee, is rescinded or must be otherwise restored by any Beneficiary, whether as a result of any proceedings in bankruptcy or reorganization or otherwise.
2.4 Guarantor further agrees that, without limiting the generality of this Guarantee, if an Event of Default shall have occurred and be continuing and any Beneficiary is prevented by Applicable Laws from exercising its remedies under the Operative Agreements (except where such Beneficiary is prevented from exercising its remedies due solely to such Beneficiary's own willful failure to perform, or willful breach of, any of such Beneficiary's obligations set forth in the Operative Agreements), such Beneficiary shall be entitled to receive hereunder from Guarantor, upon demand therefor, the sums which would otherwise have been due from Lessee had such ruling, order or judgment is issued or renderedremedies been exercised.
Appears in 1 contract
Guarantor’s Obligations Unconditional. The covenants (a) Each Guarantor hereby, jointly and agreements severally, guarantees that the Obligations will be paid strictly in accordance with the terms of the Loan Documents to which the Borrower is a party, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Agent or the Lenders with respect thereto. Each Guarantor set forth herein agrees that this Guaranty constitutes a guaranty of payment when due and not of collection and waives any right to require that any resort be made by the Agent or any Lender to any collateral. The joint and several liability of the Guarantors hereunder shall be primary absolute, unconditional and irrevocable irrespective of: (i) any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto; (ii) any change in the time, manner or place of payment of, or in any other term in respect of, all or any of the Obligations, or any other amendment or waiver of or consent to any departure from any Loan Document (including, without limitation, any increase in the obligations of the GuarantorBorrower resulting from the extension of additional credit to the Borrower or otherwise); (iii) any exchange or release of, and such obligations shall be continuingor non-perfection of any lien on or security interest in, absolute and unconditionalany collateral, shall not be subject or any release or amendment or waiver of or consent to any counterclaimdeparture from any other guaranty, setofffor all or any of the Obligations; (iv) the existence of any claim, deductionset off, diminutiondefense or other right that the Guarantors may have at any time against any Person, abatementincluding, recoupmentwithout limitation, suspensionthe Agent and Lenders; or (v) any other circumstance which might otherwise constitute a defense available to, defermentor a discharge of, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the Guarantor Borrower or any other Person may have against Lessor Guarantor in respect of the Obligations or any Guarantor in respect hereof, other Person or otherwise, than payment thereof in full.
(b) This Guaranty (i) is a continuing guaranty and shall remain in full force and effect without regard to, and shall not, to until the fullest extent permitted by applicable laws, be released, discharged or satisfaction in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor or Lessee shall have any knowledge or notice thereof) including, without limitation:
(a) any amendment, modification, addition, deletion, supplement or renewal to or other change in the Obligations, the Lease or any other Operative Document or any of the agreements referred to in any thereof, or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee of, or right of offset with respect to, any of the Obligations; or the failure or release of any security or the failure of Lessor to perfect or insure any interest in any collateral, including the Collateral;
(b) any failure, omission or delay on the part of Lessee or Lessor to conform or comply with any term of any instrument or agreement referred to in clause (a) above;
(c) any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset or security referred to in clause (a) above or any obligation or liability of Lessee or Lessor, or any exercise or nonexercise by Lessor of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset or security or any such obligation or liability;
(d) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to Lessee, Lessor or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person or court in any such proceeding;
(e) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee full of the Obligations and the payment of the other expenses to be paid by the Guarantors pursuant hereto; and (ii) shall continue to be effective or shall be reinstated, as the case may be, if at any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, time any payment of any of the foregoing, Obligations is rescinded or must otherwise be returned by the obligations under the Lease Agent or any other agreementLender upon the insolvency, instrument, guarantee bankruptcy or security referred to in clause (a) above or any term of any thereof;
(f) any defect in the title, compliance with specifications, 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 reorganization of the Aircraft Borrower or any part thereof by Lessee or any other Person for any reason whatsoever (includingotherwise, 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 all as though such duration would otherwise constitute a frustration of a lease), whether or payment had not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Guarantor into or with any other corporation or partnership or any sale, lease or transfer of any of the assets of Lessee or the Guarantor to any other Person;
(h) any change in the ownership of the capital stock of Lessee; or
(i) any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing and any other circumstance 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or renderedbeen made.
Appears in 1 contract
Samples: Guaranty (Talbots Inc)
Guarantor’s Obligations Unconditional. (a) The covenants Guarantor hereby guarantees that the Obligations will be paid strictly in accordance with the terms of the Credit Documents to which the Companies are a party, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Administrative Agent or the Lenders with respect thereto. The Guarantor agrees that its guarantee constitutes a guaranty of payment when due and agreements not of collection, and waives any right to require that any resort be made by the Administrative Agent or the Lenders to any Collateral. The obligations of the Guarantor set forth herein under this Guaranty are independent of the obligations under the Credit Agreement and the other Credit Documents, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Guaranty, irrespective of whether any action is brought against the Companies or whether the Companies are joined in any such action. The liability of the Guarantor hereunder shall be primary obligations of the Guarantor, and such obligations shall be continuing, absolute and unconditional, shall not be subject irrespective of (i) any lack of validity or enforceability of any Credit Document or any agreement or instrument relating thereto; (ii) any extension or change in the time, manner or place of payment of, or in any other term in respect of, all or any of the Obligations (including, without limitation, any extension for longer than the original period), or any other amendment or waiver of or consent to any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (departure from any provision of any Credit Document other than full and strict compliance this Guaranty (including the creation or existence of any Obligations in excess of the amount permitted by any lending formulas contained in the Credit Documents or the amount evidenced by the Credit Documents); (iii) any exchange or release of, or non-perfection of any lien on or security interest in, any Collateral, or any release or amendment or waiver of or consent to any departure from any other guaranty, for all or any of the Obligations; (iv) the existence of any claim, set-off, defense or other right that the Guarantor with its obligations hereunder)may have against any Person, whether based upon including, without limitation, the Administrative Agent or the Lenders, or (v) any claim that Lessee other circumstance which might otherwise constitute a defense available to, or a discharge of, the Companies or any other guarantor in respect of the Obligations or the Guarantor or any other Person may have against Lessor or any other Person or otherwise, in respect hereof.
(b) This Guaranty (i) is a continuing guaranty and shall remain in full force and effect without regard tountil such date on which the Loans, and shall not, to the fullest extent permitted by applicable laws, be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor or Lessee shall have any knowledge or notice thereof) including, without limitation:
(a) any amendment, modification, addition, deletion, supplement or renewal to or other change in the Obligations, the Lease or any other Operative Document or any of the agreements referred to in any thereof, or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee of, or right of offset with respect to, any of the Obligations; or the failure or release of any security or the failure of Lessor to perfect or insure any interest in any collateral, including the Collateral;
(b) any failure, omission or delay on the part of Lessee or Lessor to conform or comply with any term of any instrument or agreement referred to in clause (a) above;
(c) any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset or security referred to in clause (a) above or any obligation or liability of Lessee or Lessor, or any exercise or nonexercise by Lessor of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset or security or any such obligation or liability;
(d) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to Lessee, Lessor or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person or court in any such proceeding;
(e) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee all of the Obligations and all other expenses to be paid by the Guarantor pursuant hereto shall have been satisfied in full, and (ii) shall continue to be effective or shall be reinstated, as the case may be, if at any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, time any payment of any of the foregoingObligations is rescinded or must otherwise be returned by the Administrative Agent upon the insolvency, the obligations under the Lease bankruptcy or any other agreement, instrument, guarantee or security referred to in clause (a) above or any term of any thereof;
(f) any defect in the title, compliance with specifications, 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 reorganization of the Aircraft Companies or any part thereof by Lessee or any other Person for any reason whatsoever (includingotherwise, 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 all as though such duration would otherwise constitute a frustration of a lease), whether or payment had not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Guarantor into or with any other corporation or partnership or any sale, lease or transfer of any of the assets of Lessee or the Guarantor to any other Person;
(h) any change in the ownership of the capital stock of Lessee; or
(i) any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing and any other circumstance 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or renderedbeen made.
Appears in 1 contract
Samples: Mortgage Loan Warehousing Agreement (Emergent Group Inc)
Guarantor’s Obligations Unconditional. The covenants and agreements (a) Guarantor hereby guarantees that the Obligations will be paid strictly in accordance with the terms of the Loan Documents, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Agent or the Lenders with respect thereto. Guarantor set forth herein shall agrees that its guarantee and suretyship constitutes a guaranty of payment when due and not of collection and waives any right to require that any resort be primary made by the Agent or the Lenders to any Collateral. The obligations of Guarantor under this Guaranty are independent of the Guarantorobligations under the Financing Agreement and the other Loan Documents, and such obligations shall a separate action or actions may be continuingbrought and prosecuted against Guarantor to enforce this Guaranty, absolute and unconditional, shall not be subject to irrespective of whether any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon action is brought against any claim that Lessee or the Guarantor Borrower or any other Person may have against Lessor Loan Party or whether any Borrower or any other Person Loan Party is joined in any such action. The liability of Guarantor hereunder shall be absolute, unlimited and unconditional irrespective of: (i) any lack of validity or otherwiseenforceability of any Loan Document or any agreement or instrument relating thereto; (ii) any change in the time, manner or place of payment of, or in any other term in respect of, all or any of the Obligations, or any other amendment or waiver of or consent to any departure from any provision of any Loan Document (including the creation or existence of any Obligations in excess of the amount evidenced by the Loan Documents); (iii) any exchange or release of, or non-perfection of any Lien on or security interest in, any Collateral, or any release or amendment or waiver of or consent to any departure from any other guaranty, for all or any of the Obligations; (iv) the existence of any claim, set-off, defense or other right that Guarantor may have at any time against any Person, including, without limitation, the Agent or any of the Lenders, or (v) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Borrower or any Loan Party in respect of the Obligations or Guarantor in respect hereof.
(b) This Guaranty (i) is a continuing guaranty and suretyship and shall remain in full force and effect without regard tountil such date on which all of the Obligations and all other expenses to be paid by the Guarantor pursuant hereto shall have been Paid in Full and (ii) shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment of any of the Obligations is rescinded or must otherwise be returned by the Agent or any Lender, in connection with an Insolvency Proceeding with respect to a Borrower or otherwise, all as though such payment had not been made. As used herein, “Paid in Full” means the indefeasible, full and shall notfinal payment in cash, to in immediately available funds, of all the fullest extent permitted by applicable laws, be released, discharged or in any way affected by, any circumstance or condition whatsoever Obligations (whether or not the Guarantor or Lessee shall have any knowledge or notice thereof) including, without limitation:
(a) any amendment, modification, addition, deletion, supplement or renewal to or other change in the Obligations, the Lease or any other Operative Document or any of the agreements referred Obligations shall have been voided, disallowed or subordinated pursuant to in any thereofprovision of the Bankruptcy Code, or any applicable state fraudulent conveyance law, any other instrument law in connection with an Insolvency Proceeding or agreement applicable to any Operative Document otherwise). The expressions “prior payment in full”, “payment in full”, “paid or any of the parties to such agreements, or to the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee of, or right of offset with respect to, any of the Obligations; or the failure or release of any security or the failure of Lessor to perfect or insure any interest satisfied in any collateral, including the Collateral;
full” and “paid in full” (b) any failure, omission or delay on the part of Lessee or Lessor to conform or comply with any term of any instrument or agreement referred to in clause (a) above;
(c) any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset or security referred to in clause (a) above or any obligation or liability of Lessee or Lessor, or any exercise or nonexercise by Lessor of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset or security or any such obligation or liability;
(d) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to Lessee, Lessor or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person or court in any such proceeding;
(e) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease or any other agreement, instrument, guarantee or security referred to in clause (a) above or any term of any thereof;
(f) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident such expressions are capitalized) and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Guarantor into or with any other corporation or partnership or any sale, lease or transfer of any of the assets of Lessee or the Guarantor to any other Person;
(h) any change in the ownership of the capital stock of Lessee; or
(i) any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing and any other circumstance 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein phrases shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or renderedhave correlative meanings.
Appears in 1 contract
Guarantor’s Obligations Unconditional. The covenants and agreements obligations of the each Guarantor set forth herein under this Guaranty shall be primary obligations of the Guarantor, and such obligations shall be continuingprimary, absolute and unconditionalunconditional obligations of each Guarantor, shall not be subject to any counterclaim, setoffset-off, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the each Guarantor or any other Person person may have against Lessor the Company or any other Person or otherwiseperson, and to the full extent permitted by applicable law shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected byby (other than a release of Guarantor herefrom pursuant to Section 9.6(b) of the Note Purchase Agreement), any circumstance or condition whatsoever (whether or not the each Guarantor or Lessee the Company shall have any knowledge or notice thereof) ), including, without limitation:
(a) any amendmenttermination, modification, addition, deletion, amendment or modification of or deletion from or addition or supplement or renewal to or other change in the Obligations, the Lease or any other Operative Document or any of the agreements referred to in any thereof, Note Documents or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to any of the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or Note Documents;
(b) any furnishing or acceptance of additional security for, guarantee ofany security, or right any release of offset with respect toany security, any of for the Obligations; , or the failure or release of any security or the failure of Lessor any person to perfect or insure any interest in any collateral, including the Collateral;
(bc) any failure, omission or delay on the part of Lessee or Lessor the Company to conform or comply with any term of any of the Note Documents or any other instrument or agreement referred to in clause paragraph (a) above, including, without limitation, failure to give notice to any Guarantor of the occurrence of a “Default” or an “Event of Default” under any Note Document;
(cd) any waiver of the payment, performance or observance of any of the obligations, conditions, covenants or agreements contained in any Note Document, or any other waiver, consent, extension, indulgence, compromise, settlement, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset the Note Documents or security any other instrument or agreement referred to in clause paragraph (a) above or any obligation or liability of Lessee or Lessorthe Company, or any exercise or nonexercise by Lessor non-exercise of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset instrument or security agreement or any such obligation or liability;
(de) any failure, omission or delay on the part of any of the Holders to enforce, assert or exercise any right, power or remedy conferred on such Holder in this Guaranty, or any such failure, omission or delay on the part of such Holder in connection with any Note Document, or any other action on the part of such Holder;
(f) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, liquidation receivership, conservatorship, custodianship, liquidation, marshaling of assets and liabilities or similar proceeding proceedings with respect to Lesseethe Company, Lessor any Guarantor or to any other Person person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person trustee or receiver or by any court in any such proceeding;
(eg) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease Note Documents or any other agreement, instrument, guarantee agreement or security instrument referred to in clause paragraph (a) above or any term of any thereofhereof;
(fh) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Company or any Guarantor into or with any other corporation or partnership corporation, or any sale, lease or transfer of any of the assets of Lessee the Company or the any Guarantor to any other Personperson;
(hi) any change in the ownership of the any shares of capital stock of Lesseethe Company or any change in the corporate relationship between the Company and any Guarantor, or any termination of such relationship;
(j) any release or discharge, by operation of law, of any Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty; or
(ik) any other occurrence occurrence, circumstance, happening or circumstance event whatsoever, whether similar or dissimilar to the foregoing foregoing, whether foreseen or unforeseen, and any other circumstance that which might otherwise constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or that which might otherwise limit recourse against the any 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or rendered.
Appears in 1 contract
Guarantor’s Obligations Unconditional. The covenants and agreements Each Guarantor hereby guarantees that all the Borrower Obligations will be paid strictly in accordance with the terms of the Loan Documents, regardless of any Law now or hereafter in effect in any jurisdiction affecting any such terms or the rights of any Bank Party with respect thereto. The obligations and liabilities of each Guarantor set forth herein under this Guaranty shall be primary obligations absolute and unconditional irrespective of:
(1) any lack of validity or enforceability of any of the GuarantorBorrower Obligations, and such obligations shall be continuingany Loan Documents, absolute and unconditional, shall not be subject to any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the Guarantor or any other Person may have against Lessor agreement or instrument relating thereto; (2) any other Person change in the time, manner or otherwiseplace of payment of, and shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, be released, discharged or in any way affected byother term in respect of, any circumstance or condition whatsoever (whether or not the Guarantor or Lessee shall have any knowledge or notice thereof) including, without limitation:
(a) any amendment, modification, addition, deletion, supplement or renewal to or other change in the Obligations, the Lease or any other Operative Document all or any of the agreements referred to in any thereofBorrower Obligations, or any other instrument amendment or agreement applicable waiver of or consent to any Operative Document departure from any Loan Documents or any other documents or instruments executed in connection with or related to the Borrower Obligations; (3) any exchange or release of, or non-perfection of any Lien on or in, any Collateral, or any release or amendment or waiver of or consent to any departure from any other guaranty, for all or any of the parties to such agreementsBorrower Obligations; or (4) any other circumstances which might otherwise constitute a defense available to, or a discharge of, the Borrower or any other guarantor in respect of the Borrower Obligations or any Guarantor in respect of this Guaranty.
(1) the payment in full of all the Borrower Obligations (after the Termination Date), and (2) the payment of the other expenses to be paid by the AircraftGuarantors pursuant hereto. This Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment, or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee of, or right of offset with respect to, any of the Obligations; or the failure or release of any security or the failure of Lessor to perfect or insure any interest in any collateral, including the Collateral;
(b) any failure, omission or delay on the part of Lessee or Lessor to conform or comply with any term of any instrument or agreement referred to in clause (a) above;
(c) any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset or security referred to in clause (a) above or any obligation or liability of Lessee or Lessor, or any exercise or nonexercise by Lessor of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset or security or any such obligation or liability;
(d) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to Lessee, Lessor or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person or court in any such proceeding;
(e) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in partthereof, of any of the foregoingBorrower Obligations is rescinded or must otherwise be returned by any Bank Party upon the insolvency, the obligations under the Lease bankruptcy, dissolution, liquidation or any other agreement, instrument, guarantee or security referred to in clause (a) above or any term of any thereof;
(f) any defect in the title, compliance with specifications, 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 reorganization of the Aircraft Borrower or otherwise, all as though such payment had not been made. The obligations and liabilities of each Guarantor under this Guaranty shall not be conditioned or contingent upon the pursuit by any part thereof by Lessee Bank Party or any other Person for at any reason whatsoever (including, without limitation, time of any governmental prohibition right or restriction, condemnation, requisition, seizure remedy against the Borrower or any other act on the Person which may be or become liable in respect of all or any part of the Borrower Obligations or against any governmental Collateral or military authoritysecurity or guarantee therefor or right of setoff with respect thereto. Each Guarantor hereby consents that, without the necessity of any reservation of rights against any Guarantor and without notice to or further assent by any act of God or of the public enemy) regardless of the duration thereof (even though such duration would otherwise constitute a frustration of a lease)Guarantor, whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Guarantor into or with any other corporation or partnership or any sale, lease or transfer demand for payment of any of the assets of Lessee or the Guarantor to Borrower Obligations made by any other Person;
(h) any change in the ownership of the capital stock of Lessee; or
(i) any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing Bank Party may be rescinded by such Bank Party and any other circumstance 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which Borrower Obligations continued after such ruling, order or judgment is issued or renderedrescission.
Appears in 1 contract
Samples: Credit Agreement (Boundless Corp)
Guarantor’s Obligations Unconditional. The covenants and agreements of the Guarantor set forth herein shall be primary obligations of the Guarantor, and such obligations shall be continuingGuarantor under this Agreement are primary, absolute and unconditionalunconditional obligations of Guarantor, shall are not be subject to any counterclaim, setoffset-off, deduction, diminution, abatement, recoupment, suspension, deferment, reduction deferment or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the Guarantor or any other Person person may have against Lessor Grantor, Beneficiary or any other Person or otherwiseperson, and shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor or Lessee Grantor shall have any knowledge or notice thereof) ), including, without limitation:
(a) any amendmentamendment of or change in, modification, addition, deletion, supplement or renewal to termination or other change in the Obligationswaiver of, the Lease or any other Operative Document or any of the agreements referred to in any thereof, or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee of, or right of offset with respect to, any of the Obligations; or the failure or release of any security or the failure of Lessor to perfect or insure any interest in any collateral, including the CollateralIRU Agreement;
(b) any failurefurnishing, omission acceptance or delay on release of, or any defect in any security for, any of the part of Lessee or Lessor to conform or comply with any term of any instrument or agreement referred to in clause (a) aboveGuaranteed Obligations;
(c) any waiver of the payment, performance or observance of any of the obligations, conditions, covenants or agreements contained in the IRU Agreement, or any other waiver, consent, extension, indulgence, compromise, settlement, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset or security referred to in clause (a) above or any obligation or liability of Lessee or Lessor, or any exercise or nonexercise by Lessor of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset or security or any such obligation or liabilitythe IRU Agreement;
(d) any failure, omission or delay on the part of Beneficiary to enforce, assert or exercise any right, power or remedy conferred on it in this Agreement;
(e) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, liquidation receivership, conservatorship, custodianship, liquidation, marshalling of assets and liabilities or similar proceeding proceedings with respect to Lessee, Lessor Grantor or any other Person person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person trustee or receiver or by any court in any such proceeding;
(ef) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease or any other agreement, instrument, guarantee or security referred to in clause (a) above or any term of any thereof;
(f) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other PersonIRU Agreement;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Grantor or Guarantor into or with any other corporation or partnership corporation, or any sale, lease or transfer of any of the assets of Lessee Grantor or the Guarantor to any other Personperson;
(h) any change in the ownership of any membership interests in Grantor, or any change in the capital stock corporate relationship between Grantor and Guarantor, or any termination of Lesseesuch relationship; or
(i) any other occurrence occurrence, circumstance, happening or circumstance event whatsoever, whether similar or dissimilar to the foregoing foregoing, whether foreseen or unfore seen, and any other circumstance that which might otherwise constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or that which 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or rendered.
Appears in 1 contract
Samples: Cost Sharing and Iru Agreement (Nextlink Communications Inc / De)
Guarantor’s Obligations Unconditional. (a) The covenants Guarantor hereby guarantees that the Obligations will be paid strictly in accordance with the terms of the Loan Agreement and agreements each other Loan Document to which the Borrower is a party, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Administrative Agent or any Lender with respect thereto. The Guarantor agrees that this Guaranty constitutes a guaranty of payment when due and not of collection and waives any right to require that any resort be made by the Administrative Agent or any Lender to any collateral, if any. The obligations of the Guarantor set forth herein under this Guaranty are independent of the obligations under the other Loan Documents, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Guaranty, irrespective of whether any action is brought against the Borrower or any other Loan Party, or whether the Borrower or any other Loan Party is joined in any such action. For so long as all or any of the Obligations remain outstanding, the liability of the Guarantor hereunder shall be primary absolute and unconditional irrespective of: (i) any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto; (ii) any change in the time, manner or place of payment of, or in any other term in respect of, all or any of the Obligations, or any other amendment or waiver of or consent to any departure from any Loan Document (including, without limitation, any increase in the obligations of the GuarantorBorrower resulting from the extension of additional credit to the Borrower or otherwise); (iii) any exchange or release of, and such obligations shall be continuingor non-perfection of any lien on or security interest in, absolute and unconditionalany collateral, shall not be subject if any, or any release or amendment or waiver of or consent to any counterclaimdeparture from any other guaranty, setofffor all or any of the Obligations; (iv) the existence of any claim, deductionset-off, diminution, abatement, recoupment, suspension, deferment, reduction defense or defense (other than full and strict compliance by right that the Guarantor with its obligations hereunder)may have at any time against any Person, whether based upon including, without limitation, the Administrative Agent or any claim that Lessee Lender; (v) the consummation or the failure to consummate the Merger or the Subsequent Merger; or (vi) any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Borrower or any other guarantor in respect of the Obligations or the Guarantor or any other Person may have against Lessor or any other Person or otherwise, in respect hereof.
(b) This Guaranty (i) is a continuing guaranty and shall remain in full force and effect without regard to, and shall not, to until the fullest extent permitted by applicable laws, be released, discharged or satisfaction in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor or Lessee shall have any knowledge or notice thereof) including, without limitation:
(a) any amendment, modification, addition, deletion, supplement or renewal to or other change in the Obligations, the Lease or any other Operative Document or any of the agreements referred to in any thereof, or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee of, or right of offset with respect to, any of the Obligations; or the failure or release of any security or the failure of Lessor to perfect or insure any interest in any collateral, including the Collateral;
(b) any failure, omission or delay on the part of Lessee or Lessor to conform or comply with any term of any instrument or agreement referred to in clause (a) above;
(c) any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset or security referred to in clause (a) above or any obligation or liability of Lessee or Lessor, or any exercise or nonexercise by Lessor of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset or security or any such obligation or liability;
(d) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to Lessee, Lessor or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person or court in any such proceeding;
(e) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee full of the Obligations and the payment of the other expenses to be paid by the Guarantor pursuant hereto; and (ii) shall continue to be effective or shall be reinstated, as the case may be, if at any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, time any payment of any of the foregoing, Obligations is rescinded or must otherwise be returned by the obligations under the Lease Administrative Agent or any other agreementLender upon the insolvency, instrument, guarantee bankruptcy or security referred to in clause (a) above or any term of any thereof;
(f) any defect in the title, compliance with specifications, 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 reorganization of the Aircraft Borrower or any part thereof by Lessee or any other Person for any reason whatsoever (includingotherwise, 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 all as though such duration would otherwise constitute a frustration of a lease), whether or payment had not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Guarantor into or with any other corporation or partnership or any sale, lease or transfer of any of the assets of Lessee or the Guarantor to any other Person;
(h) any change in the ownership of the capital stock of Lessee; or
(i) any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing and any other circumstance 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or renderedbeen made.
Appears in 1 contract
Samples: Unlimited Guaranty (Teva Pharmaceutical Industries LTD)
Guarantor’s Obligations Unconditional. (1) The covenants Guarantor hereby guarantees that the Obligations will be paid strictly in accordance with the terms of the Financing Documents, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Lenders with respect thereto. The obligations and agreements liabilities of the Guarantor set forth herein under this Guaranty shall be primary obligations absolute and unconditional irrespective of: (a) any lack of validity or enforceability of any of the GuarantorObligations, and such obligations shall be continuingthe Financing Documents or any agreement or instrument relating thereto; (b) any change in the time, absolute and unconditionalmanner or place of payment of, shall not be subject or in any other term in respect of, all or any of the Obligations, or any other amendment or waiver of or consent to any counterclaimdeparture from the Financing Documents or any other documents or instruments executed in connection with or related to the Obligations; (c) any exchange or release of, setoffor non-perfection of any lien on or security interest in, deductionany Collateral, diminutionor any release or amendment or waiver of, abatementor consent to any departure from any other guaranty, recoupmentfor all or any of the Obligations; or (d) any other circumstance which might otherwise constitute a defense available to, suspensionor a discharge of, deferment, reduction the Borrower or defense (any other than full and strict compliance by guarantor in respect of the Guarantor with its obligations hereunder), whether based upon any claim that Lessee Obligations or the Guarantor or any other Person may have against Lessor or any other Person or otherwise, in respect of this Guaranty.
(2) This Guaranty is a guaranty of payment and not of collection. This Guaranty is a continuing guaranty and shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor or Lessee shall have any knowledge or notice thereof) including, without limitation:
until (a) any amendment, modification, addition, deletion, supplement or renewal to or other change the payment in the Obligations, the Lease or any other Operative Document or any full of the agreements referred Obligations and (b) the payment of the other expenses to in be paid by the Guarantor pursuant hereto. This Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any thereoftime any payment, or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee of, or right of offset with respect to, any of the Obligations; or the failure or release of any security or the failure of Lessor to perfect or insure any interest in any collateral, including the Collateral;
(b) any failure, omission or delay on the part of Lessee or Lessor to conform or comply with any term of any instrument or agreement referred to in clause (a) above;
(c) any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset or security referred to in clause (a) above or any obligation or liability of Lessee or Lessor, or any exercise or nonexercise by Lessor of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset or security or any such obligation or liability;
(d) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to Lessee, Lessor or any other Person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person or court in any such proceeding;
(e) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in partthereof, of any of the foregoingObligations is rescinded or must otherwise be returned by a Lender upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the obligations under the Lease Borrower or any other agreementotherwise, instrument, guarantee or security referred to in clause (a) above or any term of any thereof;all as though such payment had not been made.
(f3) any defect in the title, compliance with specifications, 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 The obligations and liabilities of the Aircraft Guarantor under this Guaranty shall not be conditioned or contingent upon the pursuit by any part thereof by Lessee Lenders or any other Person for at any reason whatsoever (including, without limitation, time of any governmental prohibition right or restriction, condemnation, requisition, seizure remedy against the Borrower or any other act on the Person which may be or become liable in respect of all or any part of the Obligations or against any governmental Collateral or military authority, security or any act guarantee therefor or right of God or of the public enemy) regardless of the duration thereof (even though such duration would otherwise constitute a frustration of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;set-off with respect thereto.
(g4) The Guarantor hereby consents that, without the necessity of any merger or liquidation reservation of Lessee or any merger or consolidation of rights against the Guarantor into and without notice to or with further assent by the Guarantor, any other corporation or partnership or any sale, lease or transfer demand for payment of any of the assets of Lessee or the Guarantor to Obligations made by any other Person;
(h) any change in the ownership of the capital stock of Lessee; or
(i) any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing Lenders may be rescinded by such Lender and any other circumstance 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which Obligations continued after such ruling, order or judgment is issued or renderedrescission.
Appears in 1 contract
Samples: Guaranty (Devlieg Bullard Inc)
Guarantor’s Obligations Unconditional. (a) The covenants Guarantor hereby guarantees that the Obligations will be paid strictly in accordance with the terms of the Loan Documents to which the Company is a party and any other agreements and instruments relating to the Obligations, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Lender with respect thereto. The obligations and liabilities of the Guarantor set forth herein under this Guarantee shall be primary obligations absolute and unconditional irrespective of (x) any lack of value, validity, genuineness, regularity or enforceability of any of the Obligations, any of the Loan Documents, or any agreement or instrument relating thereto, (y) any substitution, exchange, release, amendment, or waiver of or consent to any departure from the terms, of any of the Obligations, Loan Documents or any guarantee of or security for all or any of the Obligations, and (z) to the fullest extent permitted by applicable law, irrespective of any other circumstance which might otherwise constitute a legal or equitable defense available to, or a discharge of, the Guarantor in respect of the Obligations or the Guarantor in respect of this Guarantee. Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of the following shall not alter, impair or release the liability of the Guarantor hereunder which shall remain absolute and unconditional as described above:
(i) at any time or from time to time, without notice to the Guarantor, and such obligations the time for any performance of or compliance with any of the Obligations shall be continuingextended, absolute and unconditional, or such performance or compliance shall not be subject to waived;
(ii) any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by of the Guarantor with its obligations hereunder), whether based upon acts mentioned in any claim that Lessee of the provisions of the Credit Agreement or the Guarantor Notes or any other Person may have against Lessor Loan Document shall be done, omitted or waived;
(iii) the maturity of any of the Obligations shall be accelerated;
(iv) any of the Obligations shall be modified, supplemented or amended in any respect, or any right or obligation under the Credit Agreement, the Notes, any other Person Loan Document, any guarantee of any of the Obligations or otherwiseany security therefor shall be waived, released or exchanged in whole or in part or otherwise dealt with; or
(v) any lien or security interest granted to, or in favor of, the Lender as security for any of the Obligations shall be amended or waived or shall fail to be perfected.
(b) This Guarantee is a continuing guarantee and shall remain in full force and effect without regard to, and shall not, to until (i) the fullest extent permitted by applicable laws, be released, discharged or payment in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor or Lessee shall have any knowledge or notice thereof) including, without limitation:
(a) any amendment, modification, addition, deletion, supplement or renewal to or other change in full of the Obligations, (ii) the Lease Lender shall have no commitment to make any Loan to the Company under the Credit Agreement, and (iii) the payment of all expenses to be paid by the Guarantor pursuant hereto.
(c) The obligations and liabilities of the Guarantor under this Guarantee are not conditioned or contingent upon the enforcement by the Lender or any other Operative Document Person at any time (i) of any right or remedy against the Company, any other party to any Loan Documents, other agreements or instruments or any person or entity which may be liable for payment of the agreements referred to in any thereof, all or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee of, or right of offset with respect to, any 3 -3- part of the Obligations; or (ii) against any collateral security for or guarantee of payment of the failure obligations or release of any security or the failure of Lessor to perfect or insure any interest in any collateral, including the Collateral;
(b) any failure, omission or delay on the part of Lessee or Lessor to conform or comply with any term of any instrument or agreement referred to in clause (a) above;
(c) any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset or security referred to in clause (a) above or any obligation or liability of Lessee or Lessor, or any exercise or nonexercise by Lessor of any right, remedy, power or privilege under or in set-off with respect of any such instrument, agreement, guarantee, right of offset or security or any such obligation or liability;thereto.
(d) The Guarantor hereby consents that, without the necessity of any bankruptcyreservation of rights against the Guarantor and without notice to or further assent by the Guarantor, insolvencyany demand for payment of the Obligations made by the Lender may be rescinded by the Lender and any of the Obligations may be continued after such rescission.
(e) If claim is ever made upon the Lender for repayment or recovery of any amount or amounts received by the Lender in payment or on account of any of the Obligations, reorganizationand the Lender repays all or part of said amount by reason of (i) any judgment, arrangement, readjustment, composition, liquidation decree or similar proceeding with respect to Lessee, Lessor order of any Governmental Authority having jurisdiction over the Company or any other Person the Guarantor or any of their respective properties properties, including without limitation any such judgment, decree or creditorsorder pursuant to the Federal Bankruptcy Code or similar insolvency laws, or (ii) any action taken by any trustee, receiver, other Person settlement or court in compromise of any such proceeding;
(e) claim, then and in such event the Guarantor agrees that any limitation on such judgment, decree, order, settlement or compromise shall be binding upon the liability Guarantor and, notwithstanding any termination hereof or obligations the cancellation of any Person under the Lease or any other Operative Document, the Obligations, any collateral security this Guarantee shall be reinstated and the Guarantor shall be and remain liable to the Lender hereunder for the Obligations amounts so repaid or recovered to the same extent as if such amount had never originally been received by the Lender. The Guarantor agrees that it will indemnify the Lender on demand for all costs and expenses (including reasonable actual attorneys fees and expenses) incurred by the Lender in connection with such claim, including any other guarantee such costs and expenses incurred in defending against any claim alleging that payments in account of the Obligations constituted a preference, fraudulent transfer or similar payment under any reductionsbankruptcy, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity insolvency or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease or any other agreement, instrument, guarantee or security referred to in clause (a) above or any term of any thereof;similar law affecting creditor's rights generally.
(f) any defect in the title, compliance with specifications, condition, design, operation or fitness for use of or any damage This Guarantee shall be enforceable as to or loss or destruction of, or any interruption or cessation in the use all of the Aircraft Obligations and expenses of collection thereof and hereof, despite the Company's discharge in bankruptcy or any part thereof by Lessee adjustment of debts, liabilities and obligations in insolvency proceedings 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Guarantor into or with any other corporation or partnership or any sale, lease or transfer of any of the assets of Lessee or the Guarantor pursuant to any other Person;
compromise with creditors. If an event permitting the acceleration of the maturity of the principal amount of the Obligations shall at any time have occurred and be continuing, and if such acceleration (hor any consequences thereof) any change provided for in the ownership Loan Documents shall at such time be prevented by reason of the capital stock pendency against the Company of Lessee; or
(i) any a case or proceeding under the Federal Bankruptcy Code or other occurrence or circumstance whatsoeverinsolvency law, whether similar or dissimilar the Guarantor agrees that, for purposes of this Guarantee and the Guarantor's obligations hereunder, the maturity of such principal amount shall be deemed to have been accelerated, with all attendant consequences as provided in the foregoing Loan Documents, as if such acceleration and any other circumstance that might otherwise constitute a legal or equitable defense or discharge consequences had been accomplished in accordance with the terms of the liabilities of a guarantor or surety or that might otherwise limit recourse against the Guarantor. The obligations of the GuarantorLoan Documents, set forth herein constitute the full recourse obligations of the Guarantor enforceable against it to the full extent of all its assets and properties, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of forthwith pay any of the obligations amounts guaranteed hereunder whether upon such acceleration, without further notice or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or rendereddemand.
Appears in 1 contract
Samples: Guarantee (Caminus Corp)
Guarantor’s Obligations Unconditional. The covenants and agreements of the Guarantor set forth herein shall be primary obligations of the Guarantor, and such obligations shall be continuing, absolute and unconditional, shall not be subject to any counterclaim, setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the Guarantor or any other Person may have against Lessor or any other Person or otherwise, and under this Agreement shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor or Lessee shall have any knowledge or notice thereof) including, without limitation:
(a) any amendmentamendment of or change in, modificationor termination or waiver of, addition, deletion, supplement or renewal to or other change in the Obligations, the Lease or any other Operative Document or any of the agreements referred to in Acquisition Documents;
(b) any thereoffurnishing, acceptance or release of, or any other instrument or agreement applicable to defect in any Operative Document or any of the parties to such agreements, or to the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or any furnishing or acceptance of additional security for, guarantee of, or right of offset with respect to, any of the Obligations; or the failure or release of any security or the failure of Lessor to perfect or insure any interest in any collateral, including the Collateral;
(bc) any failure, omission or delay on the part of Lessee or Lessor Seller to conform or comply with any term of any instrument or agreement referred to in clause (a) aboveof the Acquisition Documents;
(cd) any waiver of the payment, performance or observance of any of the obligations, conditions, covenants or agreements contained in any Acquisition Document, or any other waiver, consent, extension, indulgence, compromise, settlement, release or other action or inaction under or in respect of any instrumentof the Acquisition Documents;
(e) any failure, agreementomission or delay on the part of Buyer or other Buyer Related Party to enforce, guarantee, right of offset assert or security referred to in clause (a) above or any obligation or liability of Lessee or Lessor, or any exercise or nonexercise by Lessor of any right, remedy, power or privilege under or remedy conferred on it in respect of any such instrument, agreement, guarantee, right of offset or security or any such obligation or liabilitythis Agreement;
(df) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, liquidation receivership, conservatorship, custodianship, liquidation, marshalling of assets and liabilities or similar proceeding proceedings with respect to Lessee, Lessor Seller or any other Person or any of their respective properties or creditors, Guarantor or any action taken by any trustee, receiver, other Person trustee or receiver or by any court in any such proceeding;
(e) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease or any other agreement, instrument, guarantee or security referred to in clause (a) above or any term of any thereof;
(f) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Seller or Guarantor into or with any other corporation or partnership corporation, or any sale, lease or transfer of any of the assets of Lessee Seller or the Guarantor to any other Person;person; or
(h) any change in the ownership of the any shares of capital stock of Lessee; or
(i) Seller, or any other occurrence or circumstance whatsoever, whether similar or dissimilar to change in the foregoing corporate relationship between Seller and any other circumstance 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, notwithstanding any provision in the Lease or any other agreement limiting the liability termination of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or renderedrelationship.
Appears in 1 contract
Samples: Parent Guaranty Agreement (Leslie Building Products Inc)
Guarantor’s Obligations Unconditional. The covenants and agreements obligations of the Guarantor set forth herein under this Guaranty shall be primary primary, absolute and unconditional obligations of the Guarantor, and such obligations shall be continuing, absolute and unconditional, shall not be subject to any counterclaim, setoffset-off, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the Guarantor or any other Person person may have against Lessor Nordson Holdings or any other Person or otherwiseperson, and to the full extent permitted by applicable law shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the Guarantor or Lessee Nordson Holdings shall have any knowledge or notice thereof) ), including, without limitation:
(a) any amendmenttermination, modification, addition, deletion, amendment or modification of or deletion from or addition or supplement or renewal to or other change in the Obligations, the Lease or any other Operative Document or any of the agreements referred to in any thereof, Note Documents or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to any of the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or Note Documents;
(b) any furnishing or acceptance of additional security for, guarantee ofany security, or right any release of offset with respect toany security, any of for the Obligations; , or the failure or release of any security or the failure of Lessor any person to perfect or insure any interest in any collateral, including the Collateral;
(bc) any failure, omission or delay on the part of Lessee or Lessor Nordson Holdings to conform or comply with any term of any of the Note Documents or any other instrument or agreement referred to in clause paragraph (a) above, including, without limitation, failure to give notice to the Guarantor of the occurrence of a “Default” or an “Event of Default” under any Note Document;
(cd) any waiver of the payment, performance or observance of any of the obligations, conditions, covenants or agreements contained in any Note Document, or any other waiver, consent, extension, indulgence, compromise, settlement, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset the Note Documents or security any other instrument or agreement referred to in clause paragraph (a) above or any obligation or liability of Lessee or LessorNordson Holdings, or any exercise or nonexercise by Lessor non-exercise of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset instrument or security agreement or any such obligation or liability;
(de) any failure, omission or delay on the part of any of the Holders to enforce, assert or exercise any right, power or remedy conferred on such Holder in this Guaranty, or any such failure, omission or delay on the part of such Holder in connection with any Note Document, or any other action on the part of such Holder;
(f) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, liquidation receivership, conservatorship, custodianship, liquidation, marshaling of assets and liabilities or similar proceeding proceedings with respect to LesseeNordson Holdings, Lessor the Guarantor or to any other Person person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person trustee or receiver or by any court in any such proceeding;
(eg) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease Note Documents or any other agreement, instrument, guarantee agreement or security instrument referred to in clause paragraph (a) above or any term of any thereofhereof;
(fh) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of Nordson Holdings or the Guarantor into or with any other corporation or partnership corporation, or any sale, lease or transfer of any of the assets of Lessee Nordson Holdings or the Guarantor to any other Personperson;
(hi) any change in the ownership of the any shares of capital stock of LesseeNordson Holdings or any change in the corporate relationship between Nordson Holdings and the Guarantor, or any termination of such relationship;
(j) any release or discharge, by operation of law, of the Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty; or
(ik) any other occurrence occurrence, circumstance, happening or circumstance event whatsoever, whether similar or dissimilar to the foregoing foregoing, whether foreseen or unforeseen, and any other circumstance that which might otherwise constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or that which 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or rendered.
Appears in 1 contract
Samples: Note Purchase and Private Shelf Agreement (Nordson Corp)
Guarantor’s Obligations Unconditional. The covenants and agreements obligations of the each Guarantor set forth herein under this Guaranty shall be primary obligations of the Guarantor, and such obligations shall be continuingprimary, absolute and unconditionalunconditional obligations of each Guarantor, shall not be subject to any counterclaim, setoffset-off, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by the Guarantor with its obligations hereunder), whether based upon any claim that Lessee or the each Guarantor or any other Person person may have against Lessor the Company or any other Person or otherwiseperson, and to the full extent permitted by applicable law shall remain in full force and effect without regard to, and shall not, to the fullest extent permitted by applicable laws, not be released, discharged or in any way affected by, any circumstance or condition whatsoever (whether or not the each Guarantor or Lessee the Company shall have any knowledge or notice thereof) ), including, without limitation:
(a) any amendmenttermination, modification, addition, deletion, amendment or modification of or deletion from or addition or supplement or renewal to or other change in the Obligations, the Lease or any other Operative Document or any of the agreements referred to in any thereof, Note Documents or any other instrument or agreement applicable to any Operative Document or any of the parties to such agreements, or to any of the Aircraft, or any assignment, mortgage or transfer thereof or of any interest therein, or Note Documents;
(b) any furnishing or acceptance of additional security for, guarantee ofany security, or right any release of offset with respect toany security, any of for the Obligations; , or the failure or release of any security or the failure of Lessor any person to perfect or insure any interest in any collateral, including the Collateral;
(bc) any failure, omission or delay on the part of Lessee or Lessor the Company to conform or comply with any term of any of the Note Documents or any other instrument or agreement referred to in clause paragraph (a) above, including, without limitation, failure to give notice to any Guarantor of the occurrence of a “Default” or an “Event of Default” under any Note Document;
(cd) any waiver of the payment, performance or observance of any of the obligations, conditions, covenants or agreements contained in any Note Document, or any other waiver, consent, extension, indulgence, compromise, settlement, release or other action or inaction under or in respect of any instrument, agreement, guarantee, right of offset the Note Documents or security any other instrument or agreement referred to in clause paragraph (a) above or any obligation or liability of Lessee or Lessorthe Company, or any exercise or nonexercise by Lessor non-exercise of any right, remedy, power or privilege under or in respect of any such instrument, agreement, guarantee, right of offset instrument or security agreement or any such obligation or liability;
(de) any failure, omission or delay on the part of any of the Holders to enforce, assert or exercise any right, power or remedy conferred on such Holder in this Guaranty, or any such failure, omission or delay on the part of such Holder in connection with any Note Document, or any other action on the part of such Holder;
(f) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, liquidation receivership, conservatorship, custodianship, liquidation, marshaling of assets and liabilities or similar proceeding proceedings with respect to Lesseethe Company, Lessor or any other Person Guarantor or to any other person or any of their respective properties or creditors, or any action taken by any trustee, receiver, other Person trustee or receiver or by any court in any such proceeding;
(eg) any limitation on the liability or obligations of any Person under the Lease or any other Operative Document, the Obligations, any collateral security for the Obligations or any other guarantee of the Obligations or any reductions, limitation, impairment, discharge, termination, cancellation, frustration, irregularity, invalidity or unenforceability, in whole or in part, of any of the foregoing, the obligations under the Lease Note Documents or any other agreement, instrument, guarantee agreement or security instrument referred to in clause paragraph (a) above or any term of any thereofhereof;
(fh) any defect in the title, compliance with specifications, 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 any part thereof by 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 of a lease), whether or not resulting from accident and whether or not without fault on the part of Lessee or any other Person;
(g) any merger or liquidation of Lessee or any merger or consolidation of the Company or any Guarantor into or with any other corporation or partnership Person, or any sale, lease or transfer of any of the assets of Lessee the Company or the any Guarantor to any other Personperson;
(hi) any change in the ownership of the any shares of capital stock of Lesseethe Company or any change in the corporate relationship between the Company and any Guarantor, or any termination of such relationship;
(j) any release or discharge, by operation of law, of any other Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty; or
(ik) any other occurrence occurrence, circumstance, happening or circumstance event whatsoever, whether similar or dissimilar to the foregoing foregoing, whether foreseen or unforeseen, and any other circumstance that which might otherwise constitute a legal or equitable defense (other than the defense of payment) or discharge of the liabilities of a guarantor or surety or that which might otherwise limit recourse against the any 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, notwithstanding any provision in the Lease or any other agreement limiting the liability of Lessor or any other Person. Nothing herein shall prohibit Lessor from exercising its rights against the Guarantor or any other Person simultaneously, jointly or severally. The Guarantor shall be bound by each and every ruling, order and judgment obtained by Lessor in respect of any of the obligations guaranteed hereunder whether or not the Guarantor is a party to the action or proceeding in which such ruling, order or judgment is issued or rendered.
Appears in 1 contract
Samples: Guaranty (Tetra Technologies Inc)
