Guarantors. If indicated as required on the Merchant Application then as a primary inducement to Service Providers to enter into this Agreement, the undersigned Guarantor(s), by signing this Agreement, jointly and severally, unconditionally and irrevocably, guarantee the continuing full and faithful performance and payment by Merchant of each of its duties and obligations to Service Providers pursuant to this Agreement, as it now exists or is amended from time to time, with or without notice. Guarantor(s) understands further that Service Providers may proceed directly against Guarantor(s) without first exhausting its remedies against any other person or entity responsible therefore to it or any security held by Service Providers or Merchant. Guarantor(s) hereby agrees that all rights, remedies, and recourses afforded to Service Providers by reason of this guarantee or otherwise are separate and cumulative and may be pursued separately, successively, or concurrently, as occasion therefore shall arise, and are nonexclusive and shall in no way limit or prejudice any other legal or equitable right, remedy, or recourse which Service Providers may have. Guarantor(s) hereby waive(s) presentment, notice of default or nonpayment, and protest and notice thereof, and consents to any modification or renewal of this Agreement or the guaranteed obligations. Guarantor(s) agree(s) to pay all costs, interest, and reasonable attorney’s fees incurred by Service Providers in collecting any amounts hereby guaranteed, whether from Guarantor(s) or Merchant, and in otherwise enforcing any of the Guaranteed Obligations. This guaranty will not be discharged or affected by the death of the undersigned, will bind all heirs, administrators, representatives, and assigns and may be enforced by or for the benefit of any successor of Service Providers. Guarantor(s) understand(s) that the inducement to Service Providers to enter into this agreement is consideration for the guaranty, and that this guaranty remains in full force and affect even if the Guarantor(s) receive no additional benefit from the guaranty.
Appears in 5 contracts
Samples: Merchant Agreement, Merchant Agreement, Merchant Agreement
Guarantors. If indicated as required on the Merchant Application then (a) The Company will cause any Person that guarantees or otherwise becomes liable at any time, whether as a primary inducement borrower or an additional or co-borrower or otherwise, for or in respect of any Indebtedness under any Material Credit Facility to Service Providers to concurrently therewith:
(i) enter into an agreement in form and substance satisfactory to the Required Holders providing for the guaranty by such Person, on a joint and several basis with all other such Persons, of (x) the prompt payment in full when due of all amounts payable by the Company pursuant to the Notes (whether for principal, interest, Make-Whole Amount or otherwise) and this Agreement, including all indemnities, fees and expenses payable by the undersigned Guarantor(s)Company thereunder and (y) the prompt, by signing this Agreement, jointly and severally, unconditionally and irrevocably, guarantee the continuing full and faithful performance performance, observance and payment discharge by Merchant the Company of each of its duties and obligations to Service Providers every covenant, agreement, undertaking and provision required pursuant to the Notes or this Agreement to be performed, observed or discharged by it (a “Guaranty Agreement”); and
(ii) deliver the following to each holder of a Note:
(A) an executed counterpart of such Guaranty;
(B) a certificate signed by an authorized responsible officer of such Person containing representations and warranties on behalf of such Person to the same effect, mutatis mutandis, as it now exists or is amended from time to timethose contained in Sections 5.1, with or without notice. Guarantor(s) understands further that Service Providers may proceed directly against Guarantor(s) without first exhausting its remedies against any other person or entity responsible therefore to it or any security held by Service Providers or Merchant. Guarantor(s) hereby agrees that all rights5.2, remedies5.6, and recourses afforded to Service Providers by reason of this guarantee or otherwise are separate and cumulative and may be pursued separately, successively, or concurrently, as occasion therefore shall arise, and are nonexclusive and shall in no way limit or prejudice any other legal or equitable right, remedy, or recourse which Service Providers may have. Guarantor(s) hereby waive(s) presentment, notice of default or nonpayment, and protest and notice thereof, and consents to any modification or renewal 5.7 of this Agreement or (but with respect to such Person and such Guaranty rather than the guaranteed obligations. Guarantor(sCompany);
(C) agree(s) all documents as may be reasonably requested by the Required Holders to pay evidence the due organization, continuing existence and, where applicable, good standing of such Person and the due authorization by all costs, interest, and reasonable attorney’s fees incurred by Service Providers in collecting any amounts hereby guaranteed, whether from Guarantor(s) or Merchant, and in otherwise enforcing any requisite action on the part of such Person of the Guaranteed Obligationsexecution and delivery of such Guaranty and the performance by such Person of its obligations thereunder; and
(D) an opinion of counsel reasonably satisfactory to the Required Holders covering such matters relating to such Person and such Guaranty as the Required Holders may reasonably request. This guaranty will not In addition to the foregoing, if the Bank Credit Agreement shall contain (or be discharged amended to contain) covenants, reporting obligations or affected by events of default related to such Bank Guarantor, then the death Company shall deliver an amendment to this Agreement to add similar covenants, reporting obligations and events of the undersigned, will bind all heirs, administrators, representatives, and assigns and may be enforced by or default related to such Bank Guarantor for the benefit of the holders of the Notes, and until such time as such amendment is delivered, this Agreement shall be deemed, without any successor action on the part of Service Providersthe parties hereto, to be amended to include such additional covenants, reporting obligations and events of default as if set forth herein in full. Guarantor(sIf the Bank Credit Agreement shall cease to contain such covenants, reporting obligations or events of default related to such Bank Guarantor, then the Company and the holders of the Notes shall deliver an amendment to this Agreement to remove such similar covenants, reporting obligations and events of default related to such Bank Guarantor, and until such time as such amendment is delivered, this Agreement shall be deemed, without any action on the part of the parties hereto, to be amended to exclude such covenants, reporting obligations and events of default as if set forth herein in full.
(b) understand(sAt the election of the Company and by written notice to each holder of Notes, any Guarantor that has provided a Guaranty under subparagraph (a) that of this Section 9.8 may be discharged from all of its obligations and liabilities under its Guaranty and shall be automatically released from its obligations thereunder without the inducement to Service Providers to enter into this agreement is consideration need for the guarantyexecution or delivery of any other document by the holders, provided that (i) if such Guarantor is a guarantor or is otherwise liable for or in respect of any Material Credit Facility, then such Guarantor has been released and discharged (or will be released and discharged concurrently with the release of such Guarantor under its Guaranty) under such Material Credit Facility, (ii) at the time of, and that this guaranty remains after giving effect to, such release and discharge, no Default or Event of Default shall be existing, (iii) no amount is then due and payable under such Guaranty, (iv) if in full force connection with such Guarantor being released and affect even if discharged under any Material Credit Facility, any fee or other form of consideration is given to any holder of Indebtedness under such Material Credit Facility for such release, the Guarantor(sholders of the Notes shall receive equivalent consideration substantially concurrently therewith, and (v) receive no additional benefit from each holder shall have received a certificate of a Responsible Officer certifying as to the guarantymatters set forth in clauses (i) through (iv). In the event of any such release, for purposes of Section 10.1, all Indebtedness of such Subsidiary shall be deemed to have been incurred concurrently with such release.
Appears in 2 contracts
Samples: Note Purchase Agreement (Unitil Corp), Note Purchase Agreement (Unitil Corp)
Guarantors. If indicated as required on the Merchant Application then as Each of Energy Future Competitive Holdings Company and Energy Future Intermediate Holding Company LLC (each, a primary inducement to Service Providers to enter into this Agreement“Guarantor,” and together, the undersigned Guarantor(s), by signing this Agreement“Guarantors”) hereby, jointly and severally, fully and unconditionally and irrevocably, guarantee the continuing full and faithful performance and guarantees all payment by Merchant obligations of each of its duties and obligations to Service Providers pursuant to this Agreement, as it now exists or is amended from time to time, with or without noticeMaker hereunder. Guarantor(s) understands further that Service Providers may proceed directly against Guarantor(s) without first exhausting its remedies against any other person or entity responsible therefore to it or any security held by Service Providers or Merchant. Guarantor(s) hereby Each Guarantor agrees that all rightsthis is a guarantee of payment and not a guarantee of collection. Each Guarantor hereby waives diligence, remedies, and recourses afforded to Service Providers by reason of this guarantee or otherwise are separate and cumulative and may be pursued separately, successively, or concurrently, as occasion therefore shall arise, and are nonexclusive and shall in no way limit or prejudice any other legal or equitable right, remedy, or recourse which Service Providers may have. Guarantor(s) hereby waive(s) presentment, notice demand of default payment, filing of claims with a court in the event of insolvency or nonpayment, and protest and notice thereof, and consents to any modification or renewal of this Agreement or the guaranteed obligations. Guarantor(s) agree(s) to pay all costs, interest, and reasonable attorney’s fees incurred by Service Providers in collecting any amounts hereby guaranteed, whether from Guarantor(s) or Merchant, and in otherwise enforcing any bankruptcy of the Guaranteed Obligations. This guaranty will Maker, any right to require a proceeding first against the Maker, protest, notice and all demands whatsoever and covenants that its guarantee shall not be discharged or affected except by the death complete performance of the undersignedobligations contained hereunder. If Payee is required by any court or otherwise to return to the Maker, will bind all heirsthe Guarantors or any custodian, administratorstrustee, representativesliquidator or other similar official acting in relation to either the Maker or the Guarantors, and assigns and may any amount paid to the Payee, each Guarantor agrees that its guarantee, to the extent theretofore discharged, shall be enforced by or for the benefit of any successor of Service Providers. Guarantor(s) understand(s) that the inducement to Service Providers to enter into this agreement is consideration for the guaranty, and that this guaranty remains reinstated in full force and affect even if effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Guarantor(s) receive no additional benefit from the guarantyPayee in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each payment to be made by a Guarantor in respect of its guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.
Appears in 1 contract
Samples: Amendment No. 2 (Energy Future Intermediate Holding CO LLC)
Guarantors. If indicated as required on the Merchant Application then (a) The Company will cause any Person that guarantees or otherwise becomes liable at any time, whether as a primary inducement borrower or an additional or co-borrower or otherwise, for or in respect of any Indebtedness under any Material Credit Facility to Service Providers to concurrently therewith:
(i) enter into an agreement in form and substance satisfactory to the Required Holders providing for the guaranty by such Person, on a joint and several basis with all other such Persons, of (x) the prompt payment in full when due of all amounts payable by the Company pursuant to the Notes (whether for principal, interest, Make-Whole Amount or otherwise) and this Agreement, including all indemnities, fees and expenses payable by the undersigned Guarantor(s)Company thereunder and (y) the prompt, by signing this Agreement, jointly and severally, unconditionally and irrevocably, guarantee the continuing full and faithful performance performance, observance and payment discharge by Merchant the Company of each of its duties and obligations to Service Providers every covenant, agreement, undertaking and provision required pursuant to the Notes or this Agreement to be performed, observed or discharged by it (a “Guaranty Agreement”); and
(ii) deliver the following to each holder of a Note:
(A) an executed counterpart of such Guaranty;
(B) a certificate signed by an authorized responsible officer of such Person containing representations and warranties on behalf of such Person to the same effect, mutatis mutandis, as it now exists or is amended from time to timethose contained in Sections 5.1, with or without notice. Guarantor(s) understands further that Service Providers may proceed directly against Guarantor(s) without first exhausting its remedies against any other person or entity responsible therefore to it or any security held by Service Providers or Merchant. Guarantor(s) hereby agrees that all rights5.2, remedies5.6, and recourses afforded to Service Providers by reason of this guarantee or otherwise are separate and cumulative and may be pursued separately, successively, or concurrently, as occasion therefore shall arise, and are nonexclusive and shall in no way limit or prejudice any other legal or equitable right, remedy, or recourse which Service Providers may have. Guarantor(s) hereby waive(s) presentment, notice of default or nonpayment, and protest and notice thereof, and consents to any modification or renewal 5.7 of this Agreement or (but with respect to such Person and such Guaranty rather than the guaranteed obligations. Guarantor(sCompany); Granite State Gas Transmission, Inc. Note Purchase Agreement
(C) agree(s) all documents as may be reasonably requested by the Required Holders to pay evidence the due organization, continuing existence and, where applicable, good standing of such Person and the due authorization by all costs, interest, and reasonable attorney’s fees incurred by Service Providers in collecting any amounts hereby guaranteed, whether from Guarantor(s) or Merchant, and in otherwise enforcing any requisite action on the part of such Person of the Guaranteed Obligationsexecution and delivery of such Guaranty and the performance by such Person of its obligations thereunder; and
(D) an opinion of counsel reasonably satisfactory to the Required Holders covering such matters relating to such Person and such Guaranty as the Required Holders may reasonably request. This guaranty will not In addition to the foregoing, if the Bank Credit Agreement shall contain (or be discharged amended to contain) covenants, reporting obligations or affected by events of default related to such Bank Guarantor, then the death Company shall deliver an amendment to this Agreement to add similar covenants, reporting obligations and events of the undersigned, will bind all heirs, administrators, representatives, and assigns and may be enforced by or default related to such Bank Guarantor for the benefit of the holders of the Notes, and until such time as such amendment is delivered, this Agreement shall be deemed, without any successor action on the part of Service Providersthe parties hereto, to be amended to include such additional covenants, reporting obligations and events of default as if set forth herein in full. Guarantor(sIf the Bank Credit Agreement shall cease to contain such covenants, reporting obligations or events of default related to such Bank Guarantor, then the Company and the holders of the Notes shall deliver an amendment to this Agreement to remove such similar covenants, reporting obligations and events of default related to such Bank Guarantor, and until such time as such amendment is delivered, this Agreement shall be deemed, without any action on the part of the parties hereto, to be amended to exclude such covenants, reporting obligations and events of default as if set forth herein in full.
(b) understand(sAt the election of the Company and by written notice to each holder of Notes, any Guarantor that has provided a Guaranty under subparagraph (a) that of this Section 9.8 may be discharged from all of its obligations and liabilities under its Guaranty and shall be automatically released from its obligations thereunder without the inducement to Service Providers to enter into this agreement is consideration need for the guarantyexecution or delivery of any other document by the holders, provided that (i) if such Guarantor is a guarantor or is otherwise liable for or in respect of any Material Credit Facility, then such Guarantor has been released and discharged (or will be released and discharged concurrently with the release of such Guarantor under its Guaranty) under such Material Credit Facility, (ii) at the time of, and that this guaranty remains after giving effect to, such release and discharge, no Default or Event of Default shall be existing, (iii) no amount is then due and payable under such Guaranty, (iv) if in full force connection with such Guarantor being released and affect even if discharged under any Material Credit Facility, any fee or other form of consideration is given to any holder of Indebtedness under such Material Credit Facility for such release, the Guarantor(sholders of the Notes shall receive equivalent consideration substantially concurrently therewith and (v) receive no additional benefit from each holder shall have received a certificate of a Responsible Officer certifying as to the guaranty.matters set forth in clauses (i) through (iv). In the event of any such release, for purposes of Section 10.1, all Indebtedness of such Subsidiary shall be deemed to have been incurred concurrently with such release. Granite State Gas Transmission, Inc. Note Purchase Agreement
Appears in 1 contract
Guarantors. If indicated as required on the Merchant Application then (a) The Company will cause any Person that guarantees or otherwise becomes liable at any time, whether as a primary inducement borrower or an additional or co-borrower or otherwise, for any Indebtedness of the Company under any Material Credit Facility to Service Providers to concurrently therewith:
(i) enter into an agreement in form and substance satisfactory to the Required Holders providing for the guaranty by such Person, on a joint and several basis with all other such Persons, of (x) the prompt payment in full when due of all amounts payable by the Company pursuant to the Notes (whether for principal, interest, Make-Whole Amount or otherwise) and this Agreement, including all indemnities, fees and expenses payable by the undersigned Guarantor(s)Company thereunder and (y) the prompt, by signing this Agreement, jointly and severally, unconditionally and irrevocably, guarantee the continuing full and faithful performance performance, observance and payment discharge by Merchant the Company of each of its duties and obligations to Service Providers every covenant, agreement, undertaking and provision required pursuant to the Notes or this Agreement to be performed, observed or discharged by it (a “Guaranty Agreement”); and
(ii) deliver the following to each holder of a Note:
(A) an executed counterpart of such Guaranty Agreement;
(B) a certificate signed by an authorized responsible officer of such Person containing representations and warranties on behalf of such Person to the same effect, mutatis mutandis, as it now exists or is amended from time to timethose contained in Sections 5.1, with or without notice. Guarantor(s) understands further that Service Providers may proceed directly against Guarantor(s) without first exhausting its remedies against any other person or entity responsible therefore to it or any security held by Service Providers or Merchant. Guarantor(s) hereby agrees that all rights5.2, remedies5.6, and recourses afforded to Service Providers by reason of this guarantee or otherwise are separate and cumulative and may be pursued separately, successively, or concurrently, as occasion therefore shall arise, and are nonexclusive and shall in no way limit or prejudice any other legal or equitable right, remedy, or recourse which Service Providers may have. Guarantor(s) hereby waive(s) presentment, notice of default or nonpayment, and protest and notice thereof, and consents to any modification or renewal 5.7 of this Agreement (but with respect to such Person and such Guaranty Agreement rather than the Company); Ameren Transmission Company of Illinois Note Purchase Agreement
(C) all documents as may be reasonably requested by the Required Holders to evidence the due organization, continuing existence and, where applicable, good standing of such Person and the due authorization by all requisite action on the part of such Person of the execution and delivery of such Guaranty Agreement and the performance by such Person of its obligations thereunder; and
(D) an opinion of counsel reasonably satisfactory to the Required Holders covering such matters relating to such Person and such Guaranty Agreement as the Required Holders may reasonably request.
(b) At the election of the Company and by written notice to each holder of Notes, any Guarantor may be discharged from all of its obligations and liabilities under its Guaranty Agreement and shall be automatically released from its obligations thereunder without the need for the execution or delivery of any other document by the guaranteed obligations. Guarantor(sholders, provided that (i) agree(sif such Guarantor is or was a guarantor or is or was otherwise liable for or in respect of any Material Credit Facility, then such Guarantor has been released and discharged (or will be released and discharged concurrently with the release of such Guarantor under its Guaranty Agreement) to pay all costsunder such Material Credit Facility, interest(ii) at the time of, and reasonable attorney’s fees after giving effect to, such release and discharge, no Default or Event of Default shall be existing, (iii) no amount is then due and payable under such Guaranty Agreement, (iv) if in connection with such Guarantor being released and discharged under any Material Credit Facility, any fee or other form of consideration is given to any holder of Indebtedness under such Material Credit Facility for such release, the holders of the Notes shall receive equivalent consideration substantially concurrently therewith and (v) each holder shall have received a certificate of a Responsible Officer certifying as to the matters set forth in clauses (i) through (iv). In the event of any such release, for purposes of Section 10.7, all Indebtedness of such Person shall be deemed to have been incurred by Service Providers in collecting any amounts hereby guaranteed, whether from Guarantor(s) or Merchant, and in otherwise enforcing any of the Guaranteed Obligations. This guaranty will not be discharged or affected by the death of the undersigned, will bind all heirs, administrators, representatives, and assigns and may be enforced by or for the benefit of any successor of Service Providers. Guarantor(s) understand(s) that the inducement to Service Providers to enter into this agreement is consideration for the guaranty, and that this guaranty remains in full force and affect even if the Guarantor(s) receive no additional benefit from the guarantysuch Person concurrently with such release.
Appears in 1 contract
Guarantors. If indicated as required on the Merchant Application then (a) The Company will cause any Person that guarantees or otherwise becomes liable at any time, whether as a primary inducement borrower or an additional or co-borrower or otherwise, for or in respect of any Indebtedness under any Material Credit Facility to Service Providers to concurrently therewith:
(i) enter into an agreement in form and substance satisfactory to the Required Holders providing for the guaranty by such Person, on a joint and several basis with all other such Persons, of (x) the prompt payment in full when due of all amounts payable by the Company pursuant to the Notes (whether for principal, interest, Make-Whole Amount or otherwise) and this Agreement, including all indemnities, fees and expenses payable by the undersigned Guarantor(s)Company thereunder and (y) the prompt, by signing this Agreement, jointly and severally, unconditionally and irrevocably, guarantee the continuing full and faithful performance performance, observance and payment discharge by Merchant the Company of each of its duties and obligations to Service Providers every covenant, agreement, undertaking and provision required pursuant to the Notes or this Agreement to be performed, observed or discharged by it (a “Guaranty Agreement”); and
(ii) deliver the following to each holder of a Note:
(A) an executed counterpart of such Guaranty;
(B) a certificate signed by an authorized responsible officer of such Person containing representations and warranties on behalf of such Person to the same effect, mutatis mutandis, as it now exists or is amended from time to timethose contained in Sections 5.1, with or without notice. Guarantor(s) understands further that Service Providers may proceed directly against Guarantor(s) without first exhausting its remedies against any other person or entity responsible therefore to it or any security held by Service Providers or Merchant. Guarantor(s) hereby agrees that all rights5.2, remedies5.6, and recourses afforded to Service Providers by reason of this guarantee or otherwise are separate and cumulative and may be pursued separately, successively, or concurrently, as occasion therefore shall arise, and are nonexclusive and shall in no way limit or prejudice any other legal or equitable right, remedy, or recourse which Service Providers may have. Guarantor(s) hereby waive(s) presentment, notice of default or nonpayment, and protest and notice thereof, and consents to any modification or renewal 5.7 of this Agreement or (but with respect to such Person and such Guaranty rather than the guaranteed obligations. Guarantor(sCompany);
(C) agree(s) all documents as may be reasonably requested by the Required Holders to pay evidence the due organization, continuing existence and, where applicable, good standing of such Person and the due authorization by all costs, interest, and reasonable attorney’s fees incurred by Service Providers in collecting any amounts hereby guaranteed, whether from Guarantor(s) or Merchant, and in otherwise enforcing any requisite action on the part of such Person of the Guaranteed Obligationsexecution and delivery of such Guaranty and the performance by such Person of its obligations thereunder; and
(D) an opinion of counsel reasonably satisfactory to the Required Holders covering such matters relating to such Person and such Guaranty as the Required Holders may reasonably request. This guaranty will not In addition to the foregoing, if the Bank Credit Agreement shall contain (or be discharged amended to contain) covenants, reporting obligations or affected by events of default related to such Bank Guarantor, then the death Company shall deliver an amendment to this Agreement to add similar covenants, reporting obligations and events of the undersigned, will bind all heirs, administrators, representatives, and assigns and may be enforced by or default related to such Bank Guarantor for the benefit of the holders of the Notes, and until such time as such amendment is delivered, this Agreement shall be deemed, without any successor action on the part of Service Providersthe parties hereto, to be amended to include such additional covenants, reporting obligations and events of default as if set forth herein in full. Guarantor(sIf Northern Utilities, Inc. Note Purchase Agreement the Bank Credit Agreement shall cease to contain such covenants, reporting obligations or events of default related to such Bank Guarantor, then the Company and the holders of the Notes shall deliver an amendment to this Agreement to remove such similar covenants, reporting obligations and events of default related to such Bank Guarantor, and until such time as such amendment is delivered, this Agreement shall be deemed, without any action on the part of the parties hereto, to be amended to exclude such covenants, reporting obligations and events of default as if set forth herein in full.
(b) understand(sAt the election of the Company and by written notice to each holder of Notes, any Guarantor that has provided a Guaranty under subparagraph (a) that of this Section 9.8 may be discharged from all of its obligations and liabilities under its Guaranty and shall be automatically released from its obligations thereunder without the inducement to Service Providers to enter into this agreement is consideration need for the guarantyexecution or delivery of any other document by the holders, provided that (i) if such Guarantor is a guarantor or is otherwise liable for or in respect of any Material Credit Facility, then such Guarantor has been released and discharged (or will be released and discharged concurrently with the release of such Guarantor under its Guaranty) under such Material Credit Facility, (ii) at the time of, and that this guaranty remains after giving effect to, such release and discharge, no Default or Event of Default shall be existing, (iii) no amount is then due and payable under such Guaranty, (iv) if in full force connection with such Guarantor being released and affect even if discharged under any Material Credit Facility, any fee or other form of consideration is given to any holder of Indebtedness under such Material Credit Facility for such release, the Guarantor(sholders of the Notes shall receive equivalent consideration substantially concurrently therewith, and (v) receive no additional benefit from each holder shall have received a certificate of a Responsible Officer certifying as to the guarantymatters set forth in clauses (i) through (iv). In the event of any such release, for purposes of Section 10.1, all Indebtedness of such Subsidiary shall be deemed to have been incurred concurrently with such release.
Appears in 1 contract
Guarantors. If indicated as required on the Merchant Application then as a primary inducement to Service Providers to enter into this Agreement, the undersigned Guarantor(s), by signing this Agreement, jointly and severally, (a) Each Guarantor hereby unconditionally and irrevocably, guarantee irrevocably guarantees to the continuing full Company and faithful the Shareholders the due and punctual performance and payment by Merchant of each of its duties the obligations and the undertakings of Investor under this Agreement when and to the extent the same are required to be performed and subject to all of the terms and conditions hereof; provided, that Guarantor shall have no liability whatsoever under this Guaranty after the Closing, whether based upon events occurring prior to or after the Closing. If Investor shall fail to perform fully and punctually any obligation or undertaking of Investor under this Agreement when and to the extent the same is required to be performed, each Guarantor will upon written demand from the Shareholders forthwith perform or cause to be performed such obligation or undertaking, as the case may be. The obligations of each Guarantor under this guaranty shall constitute an absolute and unconditional present and continuing guarantee of performance to Service Providers pursuant the extent provided herein, and shall not be contingent upon any attempt by the Company or the Shareholders to enforce performance by Investor.
(b) The obligations of each Guarantor under this guaranty are absolute and unconditional, are not subject to any counterclaim, setoff, deduction, abatement or defense based upon any claim a Guarantor may have against the Company or the Shareholders (except for any defense Investor may have against the Company or the Shareholders under the terms of this Agreement, as it now exists or is amended from time to time, with or without notice. Guarantor(s) understands further that Service Providers may proceed directly against Guarantor(s) without first exhausting its remedies against any other person or entity responsible therefore to it or any security held by Service Providers or Merchant. Guarantor(s) hereby agrees that all rights, remedies), and recourses afforded shall remain in full force and effect without regard to Service Providers by reason of this guarantee (i) any agreement or otherwise are separate and cumulative and may be pursued separately, successively, or concurrently, as occasion therefore shall arise, and are nonexclusive and shall in no way limit or prejudice any other legal or equitable right, remedy, or recourse which Service Providers may have. Guarantor(s) hereby waive(s) presentment, notice of default or nonpayment, and protest and notice thereof, and consents modification to any modification or renewal of the terms of this Agreement or any other agreement which may hereafter be made relating thereto; (ii) any exercise, non-exercise or waiver by the guaranteed obligations. Guarantor(sCompany or the Shareholders of any right, power, privilege or remedy under or in respect of this Agreement; (iii) agree(sany insolvency, bankruptcy, dissolution, liquidation, reorganization or the like of Investor at or prior to the Closing; (iv) to pay all costsabsence of any notice to, interestor knowledge by, and reasonable attorney’s fees incurred by Service Providers in collecting any amounts hereby guaranteed, whether from Guarantor(s) Guarantor of the existence or Merchant, and in otherwise enforcing occurrence of any of the Guaranteed Obligations. This guaranty will not matters or events set forth in the foregoing clauses (i) through (iii); (v) any transfer of shares of capital stock of Investor, or any assignment by Investor of its rights and obligations under this agreement, to a wholly-owned subsidiary of Investor or a Guarantor; or (vi) any other circumstance, whether similar or dissimilar to the foregoing.
(c) Each Guarantor unconditionally waives (i) any and all notice of default, non-performance or non-payment by Investor under this Agreement, (ii) all notices which may be discharged required by statute, rule of law or affected otherwise to preserve intact any rights of the Company or the Shareholders against a Guarantor, including, without limitation, any demand, presentment or protest, or proof of notice of non-payment under this Agreement, and (iii) any right to the enforcement, assertion or exercise by the death of Company or the undersigned, will bind all heirs, administrators, representatives, and assigns and may be enforced by or for the benefit Shareholders of any successor of Service Providers. Guarantor(s) understand(s) that the inducement to Service Providers to enter into right, power, privilege or remedy conferred in this agreement is consideration for the guaranty, and that this guaranty remains in full force and affect even if the Guarantor(s) receive no additional benefit from the guarantyAgreement or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Laralev Inc)
Guarantors. If indicated as required on the Merchant Application then (a) The Company will cause any Person that guarantees or otherwise becomes liable at any time, whether as a primary inducement borrower or an additional or co-borrower or otherwise, for any Indebtedness of the Company under any Material Credit Facility to Service Providers to concurrently therewith:
(i) enter into an agreement in form and substance satisfactory to the Required Holders providing for the guaranty by such Person, on a joint and several basis with all other such Persons, of (x) the prompt payment in full when due of all amounts payable by the Company pursuant to the Notes (whether for principal, interest, Make-Whole Amount or otherwise) and this Agreement, including all indemnities, fees and expenses payable by the undersigned Guarantor(s)Company thereunder and (y) the prompt, by signing this Agreement, jointly and severally, unconditionally and irrevocably, guarantee the continuing full and faithful performance performance, observance and payment discharge by Merchant the Company of each of its duties and obligations to Service Providers every covenant, agreement, undertaking and provision required pursuant to the Notes or this Agreement to be performed, observed or discharged by it (a “Guaranty Agreement”); and
(ii) deliver the following to each holder of a Note:
(A) an executed counterpart of such Guaranty Agreement;
(B) a certificate signed by an authorized responsible officer of such Person containing representations and warranties on behalf of such Person to the same effect, mutatis mutandis, as it now exists or is amended from time to timethose contained in Sections 5.1, with or without notice. Guarantor(s) understands further that Service Providers may proceed directly against Guarantor(s) without first exhausting its remedies against any other person or entity responsible therefore to it or any security held by Service Providers or Merchant. Guarantor(s) hereby agrees that all rights5.2, remedies5.6, and recourses afforded to Service Providers by reason of this guarantee or otherwise are separate and cumulative and may be pursued separately, successively, or concurrently, as occasion therefore shall arise, and are nonexclusive and shall in no way limit or prejudice any other legal or equitable right, remedy, or recourse which Service Providers may have. Guarantor(s) hereby waive(s) presentment, notice of default or nonpayment, and protest and notice thereof, and consents to any modification or renewal 5.7 of this Agreement (but with respect to such Person and such Guaranty Agreement rather than the Company);
(C) all documents as may be reasonably requested by the Required Holders to evidence the due organization, continuing existence and, where applicable, good standing of such Person and the due authorization by all requisite action on the part of such Person of the execution and delivery of such Guaranty Agreement and the performance by such Person of its obligations thereunder; and
(D) an opinion of counsel reasonably satisfactory to the Required Holders covering such matters relating to such Person and such Guaranty Agreement as the Required Holders may reasonably request.
(b) At the election of the Company and by written notice to each holder of Notes, any Guarantor may be discharged from all of its obligations and liabilities under its Guaranty Agreement and shall be automatically released from its obligations thereunder without the need for the execution or delivery of any other document by the guaranteed obligations. Guarantor(sholders, provided that (i) agree(sif such Guarantor is or was a guarantor or is or was otherwise liable for or in respect of any Material Credit Facility, then such Guarantor has been released and discharged (or will be released and discharged concurrently with the release of such Guarantor under its Guaranty Agreement) to pay all costsunder such Material Credit Facility, interest(ii) at the time of, and reasonable attorney’s fees after giving effect to, such release and discharge, no Default or Event of Default shall be existing, (iii) no amount is then due and payable under such Guaranty Agreement, (iv) if in connection with such Guarantor being released and discharged under any Material Credit Facility, any fee or other form of consideration is given to any holder of Indebtedness under such Material Credit Facility for such release, the holders of the Notes shall receive equivalent consideration substantially concurrently therewith and (v) each holder shall have received a certificate of a Responsible Officer certifying as to the matters set forth in clauses (i) through (iv). In the event of any such release, for purposes of Section 10.7, all Indebtedness of such Person shall be deemed to have been incurred by Service Providers in collecting any amounts hereby guaranteed, whether from Guarantor(s) or Merchant, and in otherwise enforcing any of the Guaranteed Obligations. This guaranty will not be discharged or affected by the death of the undersigned, will bind all heirs, administrators, representatives, and assigns and may be enforced by or for the benefit of any successor of Service Providers. Guarantor(s) understand(s) that the inducement to Service Providers to enter into this agreement is consideration for the guaranty, and that this guaranty remains in full force and affect even if the Guarantor(s) receive no additional benefit from the guarantysuch Person concurrently with such release.
Appears in 1 contract
Guarantors. If indicated as (a) Each Guarantor hereby unconditionally and irrevocably guarantees severally, but not jointly, to the Company the due and punctual performance of each of the obligations and the undertakings of TAGTCR under this Agreement when and to the extent the same are required on to be performed and subject to all of the Merchant Application then as terms and conditions hereof; provided, however, that neither TA nor GTCR shall have liability for more than 48.235% of any liability, and NMS shall not have liability for more than 3.530% of any liability, arising from a primary inducement to Service Providers to enter into breach by TAGTCR under this Agreement, and provided, further that no Guarantor shall have any liability whatsoever under this guaranty after the undersigned Guarantor(sClosing, whether based upon events occurring prior to or after the Closing. If TAGTCR shall fail to perform fully and punctually any obligation or undertaking of TAGTCR under this Agreement when and to the extent the same is required to be performed, subject to the first sentence of this Section 8.12(a) each Guarantor will upon written demand from the Company forthwith perform or cause to be performed such obligation or undertaking, as the case may be. The obligations of each Guarantor under this guaranty shall constitute an absolute and unconditional present and continuing guarantee of performance to the extent provided herein, and shall not be contingent upon any attempt by the Company to enforce performance by TAGTCR.
(b) Subject to 8.12(a), by signing the obligations of each Guarantor under this guaranty are absolute and unconditional, are not subject to any counterclaim, set off, deduction, abatement or defense based upon any claim a Guarantor may have against the Company (except for any defense TAGTCR may have against the Company under the terms of this Agreement, jointly and severally, unconditionally and irrevocably, guarantee the continuing full and faithful performance and payment by Merchant of each of its duties and obligations to Service Providers pursuant to this Agreement, as it now exists or is amended from time to time, with or without notice. Guarantor(s) understands further that Service Providers may proceed directly against Guarantor(s) without first exhausting its remedies against any other person or entity responsible therefore to it or any security held by Service Providers or Merchant. Guarantor(s) hereby agrees that all rights, remedies), and recourses afforded shall remain in full force and effect without regard to Service Providers by reason of this guarantee (i) any agreement or otherwise are separate and cumulative and may be pursued separately, successively, or concurrently, as occasion therefore shall arise, and are nonexclusive and shall in no way limit or prejudice any other legal or equitable right, remedy, or recourse which Service Providers may have. Guarantor(s) hereby waive(s) presentment, notice of default or nonpayment, and protest and notice thereof, and consents modification to any modification or renewal of the terms of this Agreement or any other agreement which may hereafter be made relating thereto; (ii) any exercise, non-exercise, or waiver by the guaranteed obligations. Guarantor(sCompany of any right, power, privilege or remedy under or in respect of this Agreement; (iii) agree(sany insolvency, bankruptcy, dissolution, liquidation, reorganization or the like of TAGTCR at or prior to the Closing; (iv) to pay all costsabsence of any notice to, interestor knowledge by, and reasonable attorney’s fees incurred by Service Providers in collecting any amounts hereby guaranteed, whether from Guarantor(s) Guarantor of the existence or Merchant, and in otherwise enforcing occurrence of any of the Guaranteed Obligations. This guaranty will not matters or events set forth in the foregoing causes (i) through (iii); (v) any transfer of shares of capital stock of TAGTCR, or any assignment by TAGTCR of its rights and obligations under this Agreement, to a wholly-owned subsidiary of TAGTCR or a Guarantor; or (vi) any other circumstance, whether similar or dissimilar to the foregoing.
(c) Each Guarantor unconditionally waives (i) any and all notice of default, non-performance or non-payment by TAGTCR under this Agreement, (ii) all notices which may be discharged required by statute, rule of law or affected otherwise to preserve intact any rights of the Company against a Guarantor, including, without limitation, any demand, presentment or protest, or proof of notice of non-payment under this Agreement, and (iii) any right to the enforcement, assertion or exercise by the death Company of any right, power, privilege or remedy conferred in this Agreement or otherwise.
(d) Notwithstanding any provision of this Agreement to the undersignedcontrary, will bind all heirsany liability arising under this contract or this guaranty shall be limited to $41.0 million, administrators, representativesin the case of TA and GTCR, and assigns and may be enforced by or for $3.0 million, in the benefit case of any successor of Service Providers. Guarantor(s) understand(s) that the inducement to Service Providers to enter into this agreement is consideration for the guaranty, and that this guaranty remains in full force and affect even if the Guarantor(s) receive no additional benefit from the guarantyNMS.
Appears in 1 contract
Guarantors. If indicated Each Guarantor hereby (i) consents to this Second Amendment; (ii) acknowledges and reaffirms all obligations owing by it to the Agents and Lenders under any Loan Document to which it is a party and represents and warrants that, after giving effect to this Second Amendment, all of its representations and warranties contained in the Loan Documents to which such Guarantor is a party are true and correct on and as required of the Second Amendment Effective Date as though made on and as of such date, except to the Merchant Application then extent that any such representation or warranty expressly relates solely to an earlier date (in which case such representations and warranties shall be true and correct on and as a primary inducement to Service Providers to enter into this Agreement, the undersigned Guarantor(sof such earlier date), by signing this Agreement, jointly and severally, unconditionally and irrevocably, guarantee the continuing full and faithful performance and payment by Merchant of each of its duties and obligations to Service Providers pursuant to this Agreement, as it now exists or is amended from time to time, with or without notice. Guarantor(s(iii) understands further that Service Providers may proceed directly against Guarantor(s) without first exhausting its remedies against any other person or entity responsible therefore to it or any security held by Service Providers or Merchant. Guarantor(s) hereby agrees that all rights, remedies, each Loan Document to which it is a party is and recourses afforded to Service Providers by reason of this guarantee shall remain in full force and effect and shall not be impaired or otherwise are separate and cumulative and may be pursued separately, successively, or concurrently, as occasion therefore shall arise, and are nonexclusive and shall in no way limit or prejudice any other legal or equitable right, remedy, or recourse which Service Providers may have. Guarantor(s) hereby waive(s) presentment, notice of default or nonpayment, and protest and notice thereof, and consents to any modification or renewal of this Agreement or the guaranteed obligations. Guarantor(s) agree(s) to pay all costs, interest, and reasonable attorney’s fees incurred by Service Providers in collecting any amounts hereby guaranteed, whether from Guarantor(s) or Merchant, and in otherwise enforcing any of the Guaranteed Obligations. This guaranty will not be discharged or affected by the death execution of this Second Amendment or any other document or instrument delivered in connection herewith; and (iv) ratifies and reaffirms the validity and enforceability of all of the undersignedLiens and security interests heretofore granted by it, will bind all heirspursuant to and in connection with the Security Agreement and any other Loan Document to which such Guarantor is a party, administratorsto the Collateral Agent, representatives, on behalf and assigns and may be enforced by or for the benefit of any successor each of Service Providersthe Lenders, as collateral security for the Secured Obligations of such Guarantor, and acknowledges that all of such Liens and security interests, and all collateral heretofore pledged as security for such obligations, continues to be and remain collateral for such obligations from and after the date hereof. Guarantor(s) understand(s) Although each of the Guarantors have been informed of the matters set forth herein and have acknowledged and agreed to same, each of the Guarantors understands that the inducement Agents and the Lenders shall have no obligation to Service Providers inform the Guarantors of such matters in the future or to enter into this seek the Guarantors’ acknowledgement or agreement is consideration for the guarantyto future amendments, waivers, or modifications, and that this guaranty remains in full force and affect even if the Guarantor(s) receive no additional benefit from the guarantynothing herein shall create such a duty.
Appears in 1 contract
Samples: Financing Agreement (OTG EXP, Inc.)
Guarantors. If indicated as required on the Merchant Application then (a) The Company will cause any Person that guarantees or otherwise becomes liable at any time, whether as a primary inducement borrower or an additional or co-borrower or otherwise, for any Indebtedness of the Company under any Material Credit Facility to Service Providers to concurrently therewith:
(i) enter into an agreement in form and substance satisfactory to the Required Holders providing for the guaranty by such Person, on a joint and several basis with all other such Persons, of (x) the prompt payment in full when due of all amounts payable by the Company pursuant to the Notes (whether for principal, interest, Make-Whole Amount or otherwise) and this Agreement, including all indemnities, fees and expenses payable by the undersigned Guarantor(s)Company thereunder and (y) the prompt, by signing this Agreement, jointly and severally, unconditionally and irrevocably, guarantee the continuing full and faithful performance performance, observance and payment discharge by Merchant the Company of each of its duties and obligations to Service Providers every covenant, agreement, undertaking and provision required pursuant to the Notes or this Agreement to be performed, observed or discharged by it (a “Guaranty Agreement”); and
(ii) deliver the following to each holder of a Note:
(A) an executed counterpart of such Guaranty Agreement;
(B) a certificate signed by an authorized responsible officer of such Person containing representations and warranties on behalf of such Person to the same effect, mutatis mutandis, as it now exists or is amended from time to timethose contained in Sections 5.1, with or without notice. Guarantor(s) understands further that Service Providers may proceed directly against Guarantor(s) without first exhausting its remedies against any other person or entity responsible therefore to it or any security held by Service Providers or Merchant. Guarantor(s) hereby agrees that all rights5.2, remedies5.6, and recourses afforded to Service Providers by reason of this guarantee or otherwise are separate and cumulative and may be pursued separately, successively, or concurrently, as occasion therefore shall arise, and are nonexclusive and shall in no way limit or prejudice any other legal or equitable right, remedy, or recourse which Service Providers may have. Guarantor(s) hereby waive(s) presentment, notice of default or nonpayment, and protest and notice thereof, and consents to any modification or renewal 5.7 of this Agreement (but with respect to such Person and such Guaranty Agreement rather than the Company);
(C) all documents as may be reasonably requested by the Required Holders to evidence the due organization, continuing existence and, where applicable, good standing of such Person and the due authorization by all requisite action on the part of such Person of the execution and delivery of such Guaranty Agreement and the performance by such Person of its obligations thereunder; and Ameren Transmission Company of Illinois Note Purchase Agreement
(D) an opinion of counsel reasonably satisfactory to the Required Holders covering such matters relating to such Person and such Guaranty Agreement as the Required Holders may reasonably request.
(b) At the election of the Company and by written notice to each holder of Notes, any Guarantor may be discharged from all of its obligations and liabilities under its Guaranty Agreement and shall be automatically released from its obligations thereunder without the need for the execution or delivery of any other document by the guaranteed obligations. Guarantor(sholders, provided that (i) agree(sif such Guarantor is or was a guarantor or is or was otherwise liable for or in respect of any Material Credit Facility, then such Guarantor has been released and discharged (or will be released and discharged concurrently with the release of such Guarantor under its Guaranty Agreement) to pay all costsunder such Material Credit Facility, interest(ii) at the time of, and reasonable attorney’s fees after giving effect to, such release and discharge, no Default or Event of Default shall be existing, (iii) no amount is then due and payable under such Guaranty Agreement, (iv) if in connection with such Guarantor being released and discharged under any Material Credit Facility, any fee or other form of consideration is given to any holder of Indebtedness under such Material Credit Facility for such release, the holders of the Notes shall receive equivalent consideration substantially concurrently therewith and (v) each holder shall have received a certificate of a Responsible Officer certifying as to the matters set forth in clauses (i) through (iv). In the event of any such release, for purposes of Section 10.7, all Indebtedness of such Person shall be deemed to have been incurred by Service Providers in collecting any amounts hereby guaranteed, whether from Guarantor(s) or Merchant, and in otherwise enforcing any of the Guaranteed Obligations. This guaranty will not be discharged or affected by the death of the undersigned, will bind all heirs, administrators, representatives, and assigns and may be enforced by or for the benefit of any successor of Service Providers. Guarantor(s) understand(s) that the inducement to Service Providers to enter into this agreement is consideration for the guaranty, and that this guaranty remains in full force and affect even if the Guarantor(s) receive no additional benefit from the guarantysuch Person concurrently with such release.
Appears in 1 contract
Guarantors. If indicated as required on the Merchant Application then (a) The Company will cause any Person that guarantees or otherwise becomes liable at any time, whether as a primary inducement borrower or an additional or co-borrower or otherwise, for or in respect of any Indebtedness under any Material Credit Facility to Service Providers to concurrently therewith:
(i) enter into an agreement in form and substance satisfactory to the Required Holders providing for the guaranty by such Person, on a joint and several basis with all other such Persons, of (x) the prompt payment in full when due of all amounts payable by the Company pursuant to the Series R Bonds (whether for principal, interest, Make-Whole Amount or otherwise) and this Agreement, including all indemnities, fees and expenses payable by the undersigned Guarantor(s)Company thereunder and (y) the prompt, by signing this Agreement, jointly and severally, unconditionally and irrevocably, guarantee the continuing full and faithful performance performance, observance and payment discharge by Merchant the Company of each of its duties and obligations to Service Providers every covenant, agreement, undertaking and provision required pursuant to the Series R Bonds or this Agreement to be performed, observed or discharged by it (a “Guaranty Agreement”); and
(ii) deliver the following to each holder of a Series R Bond:
(A) an executed counterpart of such Guaranty;
(B) a certificate signed by an authorized responsible officer of such Person containing representations and warranties on behalf of such Person to the same effect, mutatis mutandis, as it now exists or is amended from time to timethose contained in Sections 5.1, with or without notice. Guarantor(s) understands further that Service Providers may proceed directly against Guarantor(s) without first exhausting its remedies against any other person or entity responsible therefore to it or any security held by Service Providers or Merchant. Guarantor(s) hereby agrees that all rights5.2, remedies5.6, and recourses afforded to Service Providers by reason of this guarantee or otherwise are separate and cumulative and may be pursued separately, successively, or concurrently, as occasion therefore shall arise, and are nonexclusive and shall in no way limit or prejudice any other legal or equitable right, remedy, or recourse which Service Providers may have. Guarantor(s) hereby waive(s) presentment, notice of default or nonpayment, and protest and notice thereof, and consents to any modification or renewal 5.7 of this Agreement or (but with respect to such Person and such Guaranty rather than the guaranteed obligations. Guarantor(sCompany);
(C) agree(s) all documents as may be reasonably requested by the Required Holders to pay evidence the due organization, continuing existence and, where applicable, good standing of such Person and the due authorization by all costs, interest, and reasonable attorney’s fees incurred by Service Providers in collecting any amounts hereby guaranteed, whether from Guarantor(s) or Merchant, and in otherwise enforcing any requisite action on the part of such Person of the Guaranteed Obligationsexecution and delivery of such Guaranty and the performance by such Person of its obligations thereunder; and
(D) an opinion of counsel reasonably satisfactory to the Required Holders covering such matters relating to such Person and such Guaranty as the Required Holders may reasonably request. This guaranty will not Unitil Energy Systems, Inc. Bond Purchase Agreement In addition to the foregoing, if the Bank Credit Agreement shall contain (or be discharged amended to contain) covenants, reporting obligations or affected by events of default related to such Bank Guarantor, then the death Company shall deliver an amendment to this Agreement to add similar covenants, reporting obligations and events of the undersigned, will bind all heirs, administrators, representatives, and assigns and may be enforced by or default related to such Bank Guarantor for the benefit of the holders of the Series R Bonds, and until such time as such amendment is delivered, this Agreement shall be deemed, without any successor action on the part of Service Providersthe parties hereto, to be amended to include such additional covenants, reporting obligations and events of default as if set forth herein in full. Guarantor(sIf the Bank Credit Agreement shall cease to contain such covenants, reporting obligations or events of default related to such Bank Guarantor, then the Company and the holders of the Series R Bonds shall deliver an amendment to this Agreement to remove such similar covenants, reporting obligations and events of default related to such Bank Guarantor, and until such time as such amendment is delivered, this Agreement shall be deemed, without any action on the part of the parties hereto, to be amended to exclude such covenants, reporting obligations and events of default as if set forth herein in full.
(b) understand(sAt the election of the Company and by written notice to each holder of Series R Bonds, any Guarantor that has provided a Guaranty under subparagraph (a) that of this Section 9.2.8 may be discharged from all of its obligations and liabilities under its Guaranty and shall be automatically released from its obligations thereunder without the inducement to Service Providers to enter into this agreement is consideration need for the guarantyexecution or delivery of any other document by the holders, provided that (i) if such Guarantor is a guarantor or is otherwise liable for or in respect of any Material Credit Facility, then such Guarantor has been released and discharged (or will be released and discharged concurrently with the release of such Guarantor under its Guaranty) under such Material Credit Facility, (ii) at the time of, and that this guaranty remains after giving effect to, such release and discharge, no Default or Event of Default shall be existing, (iii) no amount is then due and payable under such Guaranty, (iv) if in full force connection with such Guarantor being released and affect even if discharged under any Material Credit Facility, any fee or other form of consideration is given to any holder of Indebtedness under such Material Credit Facility for such release, the Guarantor(sholders of the Series R Bonds shall receive equivalent consideration substantially concurrently therewith, and (v) receive no additional benefit from each holder shall have received a certificate of a Responsible Officer certifying as to the guarantymatters set forth in clauses (i) through (iv). In the event of any such release, for purposes of Section 10.1, all Indebtedness of such Subsidiary shall be deemed to have been incurred concurrently with such release.
Appears in 1 contract
Guarantors. If indicated as required on the Merchant Application then (a) The Company will cause any Person that guarantees or otherwise becomes liable at any time, whether as a primary inducement borrower or an additional or co-borrower or otherwise, for or in respect of any Indebtedness under any Material Credit Facility to Service Providers to concurrently therewith:
(i) enter into an agreement in form and substance satisfactory to the Required Holders providing for the guaranty by such Person, on a joint and several basis with all other such Persons, of (x) the prompt payment in full when due of all amounts payable by the Company pursuant to the Notes (whether for principal, interest, Make-Whole Amount or otherwise) and this Agreement, including all indemnities, fees and expenses payable by the undersigned Guarantor(s)Company thereunder and (y) the prompt, by signing this Agreement, jointly and severally, unconditionally and irrevocably, guarantee the continuing full and faithful performance performance, observance and payment discharge by Merchant the Company of each of its duties and obligations to Service Providers every covenant, agreement, undertaking and provision required pursuant to the Notes or this Agreement to be performed, observed or discharged by it (a “Guaranty Agreement”); and
(ii) deliver the following to each holder of a Note:
(A) an executed counterpart of such Guaranty;
(B) a certificate signed by an authorized responsible officer of such Person containing representations and warranties on behalf of such Person to the same effect, mutatis mutandis, as it now exists or is amended from time to timethose contained in Sections 5.1, with or without notice. Guarantor(s) understands further that Service Providers may proceed directly against Guarantor(s) without first exhausting its remedies against any other person or entity responsible therefore to it or any security held by Service Providers or Merchant. Guarantor(s) hereby agrees that all rights5.2, remedies5.6, and recourses afforded to Service Providers by reason of this guarantee or otherwise are separate and cumulative and may be pursued separately, successively, or concurrently, as occasion therefore shall arise, and are nonexclusive and shall in no way limit or prejudice any other legal or equitable right, remedy, or recourse which Service Providers may have. Guarantor(s) hereby waive(s) presentment, notice of default or nonpayment, and protest and notice thereof, and consents to any modification or renewal 5.7 of this Agreement or (but with respect to such Person and such Guaranty rather than the guaranteed obligations. Guarantor(sCompany);
(C) agree(s) all documents as may be reasonably requested by the Required Holders to pay evidence the due organization, continuing existence and, where applicable, good standing of such Person and the due authorization by all costs, interest, and reasonable attorney’s fees incurred by Service Providers in collecting any amounts hereby guaranteed, whether from Guarantor(s) or Merchant, and in otherwise enforcing any requisite action on the part of such Person of the Guaranteed Obligationsexecution and delivery of such Guaranty and the performance by such Person of its obligations thereunder; and Northern Utilities, Inc. Note Purchase Agreement
(D) an opinion of counsel reasonably satisfactory to the Required Holders covering such matters relating to such Person and such Guaranty as the Required Holders may reasonably request. This guaranty will not In addition to the foregoing, if the Bank Credit Agreement shall contain (or be discharged amended to contain) covenants, reporting obligations or affected by events of default related to such Bank Guarantor, then the death Company shall deliver an amendment to this Agreement to add similar covenants, reporting obligations and events of the undersigned, will bind all heirs, administrators, representatives, and assigns and may be enforced by or default related to such Bank Guarantor for the benefit of the holders of the Notes, and until such time as such amendment is delivered, this Agreement shall be deemed, without any successor action on the part of Service Providersthe parties hereto, to be amended to include such additional covenants, reporting obligations and events of default as if set forth herein in full. Guarantor(sIf the Bank Credit Agreement shall cease to contain such covenants, reporting obligations or events of default related to such Bank Guarantor, then the Company and the holders of the Notes shall deliver an amendment to this Agreement to remove such similar covenants, reporting obligations and events of default related to such Bank Guarantor, and until such time as such amendment is delivered, this Agreement shall be deemed, without any action on the part of the parties hereto, to be amended to exclude such covenants, reporting obligations and events of default as if set forth herein in full.
(b) understand(sAt the election of the Company and by written notice to each holder of Notes, any Guarantor that has provided a Guaranty under subparagraph (a) that of this Section 9.8 may be discharged from all of its obligations and liabilities under its Guaranty and shall be automatically released from its obligations thereunder without the inducement to Service Providers to enter into this agreement is consideration need for the guarantyexecution or delivery of any other document by the holders, provided that (i) if such Guarantor is a guarantor or is otherwise liable for or in respect of any Material Credit Facility, then such Guarantor has been released and discharged (or will be released and discharged concurrently with the release of such Guarantor under its Guaranty) under such Material Credit Facility, (ii) at the time of, and that this guaranty remains after giving effect to, such release and discharge, no Default or Event of Default shall be existing, (iii) no amount is then due and payable under such Guaranty, (iv) if in full force connection with such Guarantor being released and affect even if discharged under any Material Credit Facility, any fee or other form of consideration is given to any holder of Indebtedness under such Material Credit Facility for such release, the Guarantor(sholders of the Notes shall receive equivalent consideration substantially concurrently therewith, and (v) receive no additional benefit from each holder shall have received a certificate of a Responsible Officer certifying as to the guaranty.matters set forth in clauses (i) through (iv). In the event of any such release, for purposes of Section 10.1, all Indebtedness of such Subsidiary shall be deemed to have been incurred concurrently with such release. Northern Utilities, Inc. Note Purchase Agreement
Appears in 1 contract
Guarantors. If indicated Each Guarantor hereby (i) consents to this Second Amendment; (ii) acknowledges and reaffirms all obligations owing by it to the Collateral Agent and Holders under any Note Document to which it is a party and represents and warrants that, after giving effect to this Second Amendment, all of its representations and warranties contained in the Note Documents to which such Guarantor is a party are true and correct on and as required of the Second Amendment Effective Date as though made on and as of such date, except to the Merchant Application then extent that any such representation or warranty expressly relates solely to an earlier date (in which case such representations and warranties shall be true and correct on and as a primary inducement to Service Providers to enter into this Agreement, the undersigned Guarantor(sof such earlier date), by signing this Agreement, jointly and severally, unconditionally and irrevocably, guarantee the continuing full and faithful performance and payment by Merchant of each of its duties and obligations to Service Providers pursuant to this Agreement, as it now exists or is amended from time to time, with or without notice. Guarantor(s(iii) understands further that Service Providers may proceed directly against Guarantor(s) without first exhausting its remedies against any other person or entity responsible therefore to it or any security held by Service Providers or Merchant. Guarantor(s) hereby agrees that all rights, remedies, each Note Document to which it is a party is and recourses afforded to Service Providers by reason of this guarantee shall remain in full force and effect and shall not be impaired or otherwise are separate and cumulative and may be pursued separately, successively, or concurrently, as occasion therefore shall arise, and are nonexclusive and shall in no way limit or prejudice any other legal or equitable right, remedy, or recourse which Service Providers may have. Guarantor(s) hereby waive(s) presentment, notice of default or nonpayment, and protest and notice thereof, and consents to any modification or renewal of this Agreement or the guaranteed obligations. Guarantor(s) agree(s) to pay all costs, interest, and reasonable attorney’s fees incurred by Service Providers in collecting any amounts hereby guaranteed, whether from Guarantor(s) or Merchant, and in otherwise enforcing any of the Guaranteed Obligations. This guaranty will not be discharged or affected by the death execution of this Second Amendment or any other document or instrument delivered in connection herewith; and (iv) ratifies and reaffirms the validity and enforceability of all of the undersignedLiens and security interests heretofore granted by it, will bind all heirspursuant to and in connection with the Note Documents to which such Guarantor is a party, administratorsto the Collateral Agent, representatives, on behalf and assigns and may be enforced by or for the benefit of any successor each of Service Providersthe Holders, as collateral security for the obligations of such Guarantor thereunder, and acknowledges that all of such Liens and security interests, and all collateral heretofore pledged as security for such obligations, continues to be and remain collateral for such obligations from and after the date hereof. Guarantor(s) understand(s) Although each of the Guarantors have been informed of the matters set forth herein and have acknowledged and agreed to same, each of the Guarantors understands that the inducement Collateral Agent and the Holders shall have no obligation to Service Providers inform the Guarantors of such matters in the future or to enter into this seek the Guarantors’ acknowledgement or agreement is consideration for the guarantyto future amendments, waivers, or modifications, and that this guaranty remains in full force and affect even if the Guarantor(s) receive no additional benefit from the guarantynothing herein shall create such a duty.
Appears in 1 contract
Guarantors. If indicated as required on Notwithstanding anything to the Merchant Application then as a primary inducement to Service Providers to enter into contrary in this Agreement, the undersigned Guarantor(s), by signing this Agreementeach Guarantor, jointly and severally, unconditionally and irrevocably, hereby agrees to guarantee the continuing in full and faithful performance and payment by Merchant of each of its all duties and obligations of Sellers in this Agreement (including the indemnification obligations of Sellers under this Article 8, on the terms and subject to Service Providers pursuant the conditions, limitations and other provisions set forth in this Article 8 with respect to such indemnification obligations of Sellers) (the “Guaranteed Seller Obligations”). The obligations of each Guarantor under this AgreementSection 8.07 shall constitute a present and continuing guaranty of payment and performance and not merely of collectability. Each Guarantor agrees that the Guaranteed Seller Obligations will not be discharged except by complete performance or payment of such Guaranteed Seller Obligations and will not be discharged, as it now exists affected, or is amended from time impaired in any way, or subject to timeany defense, with set-off, deduction, or without notice. Guarantor(scounterclaim whatsoever, by reason of: (i) understands further that Service Providers may proceed directly against Guarantor(s) without first exhausting its remedies any failure on the part of any of the Buyers or any of their respective Affiliates and Representatives to timely assert any claim or demand or to enforce any right or remedy against any other person Seller; (ii) any change in the time (including any extension of the time), place or entity responsible therefore to it manner of payment or any security held by Service Providers or Merchant. Guarantor(s) hereby agrees that all rights, remedies, and recourses afforded to Service Providers by reason performance of this guarantee or otherwise are separate and cumulative and may be pursued separately, successively, or concurrently, as occasion therefore shall arise, and are nonexclusive and shall in no way limit or prejudice any other legal or equitable right, remedy, or recourse which Service Providers may have. Guarantor(s) hereby waive(s) presentment, notice of default or nonpayment, and protest and notice thereof, and consents to any modification or renewal of this Agreement or the guaranteed obligations. Guarantor(s) agree(s) to pay all costs, interest, and reasonable attorney’s fees incurred by Service Providers in collecting any amounts hereby guaranteed, whether from Guarantor(s) or Merchant, and in otherwise enforcing any of the Guaranteed Obligations. This guaranty will not be discharged Seller Obligations or affected any amendment or modification to, or waiver under, this Agreement; (iii) any discharge of any obligation of any of the Buyers arising out of any applicable Action seeking the application of bankruptcy, moratorium and other laws affecting creditors’ rights generally and as limited by the death availability of specific performance and the application of equitable principles, against any Seller; (iv) any change in the corporate existence, structure, or ownership of any Seller, Guarantor or any other Person interested in the transactions contemplated by this Agreement; or (v) the adequacy of any other means any of the undersigned, will bind all heirs, administrators, representatives, and assigns and Buyers may be enforced by have of obtaining payment or for the benefit performance of any successor of Service Providers. Guarantor(s) understand(s) that the inducement to Service Providers to enter into this agreement is consideration for the guaranty, and that this guaranty remains in full force and affect even if the Guarantor(s) receive no additional benefit from the guarantyGuaranteed Seller Obligations.
Appears in 1 contract
Guarantors. If indicated Each Guarantor hereby (i) consents to this First Amendment; (ii) acknowledges and reaffirms all obligations owing by it to the Agents and Lenders under any Loan Document to which it is a party and represents and warrants that, after giving effect to this First Amendment, all of its representations and warranties contained in the Loan Documents to which such Guarantor is a party are true and correct on and as required of the First Amendment Effective Date as though made on and as of such date, except to the Merchant Application then extent that any such representation or warranty expressly relates solely to an earlier date (in which case such representations and warranties shall be true and correct on and as a primary inducement to Service Providers to enter into this Agreement, the undersigned Guarantor(sof such earlier date), by signing this Agreement, jointly and severally, unconditionally and irrevocably, guarantee the continuing full and faithful performance and payment by Merchant of each of its duties and obligations to Service Providers pursuant to this Agreement, as it now exists or is amended from time to time, with or without notice. Guarantor(s(iii) understands further that Service Providers may proceed directly against Guarantor(s) without first exhausting its remedies against any other person or entity responsible therefore to it or any security held by Service Providers or Merchant. Guarantor(s) hereby agrees that all rights, remedies, each Loan Document to which it is a party is and recourses afforded to Service Providers by reason of this guarantee shall remain in full force and effect and shall not be impaired or otherwise are separate and cumulative and may be pursued separately, successively, or concurrently, as occasion therefore shall arise, and are nonexclusive and shall in no way limit or prejudice any other legal or equitable right, remedy, or recourse which Service Providers may have. Guarantor(s) hereby waive(s) presentment, notice of default or nonpayment, and protest and notice thereof, and consents to any modification or renewal of this Agreement or the guaranteed obligations. Guarantor(s) agree(s) to pay all costs, interest, and reasonable attorney’s fees incurred by Service Providers in collecting any amounts hereby guaranteed, whether from Guarantor(s) or Merchant, and in otherwise enforcing any of the Guaranteed Obligations. This guaranty will not be discharged or affected by the death execution of this First Amendment or any other document or instrument delivered in connection herewith; and (iv) ratifies and reaffirms the validity and enforceability of all of the undersignedLiens and security interests heretofore granted by it, will bind all heirspursuant to and in connection with the Security Agreement and any other Loan Document to which such Guarantor is a party, administratorsto the Collateral Agent, representatives, on behalf and assigns and may be enforced by or for the benefit of any successor each of Service Providersthe Lenders, as collateral security for the Secured Obligations of such Guarantor, and acknowledges that all of such Liens and security interests, and all collateral heretofore pledged as security for such obligations, continues to be and remain collateral for such obligations from and after the date hereof. Guarantor(s) understand(s) Although each of the Guarantors have been informed of the matters set forth herein and have acknowledged and agreed to same, each of the Guarantors understands that the inducement Agents and the Lenders shall have no obligation to Service Providers inform the Guarantors of such matters in the future or to enter into this seek the Guarantors’ acknowledgement or agreement is consideration for the guarantyto future amendments, waivers, or modifications, and that this guaranty remains in full force and affect even if the Guarantor(s) receive no additional benefit from the guarantynothing herein shall create such a duty.
Appears in 1 contract
Samples: Financing Agreement (OTG EXP, Inc.)
Guarantors. If indicated Each Guarantor hereby (i) consents to this First Amendment; (ii) acknowledges and reaffirms all obligations owing by it to the Collateral Agent and Holders under any Note Document to which it is a party and represents and warrants that, after giving effect to this First Amendment, all of its representations and warranties contained in the Note Documents to which such Guarantor is a party are true and correct on and as required of the First Amendment Effective Date as though made on and as of such date, except to the Merchant Application then extent that any such representation or warranty expressly relates solely to an earlier date (in which case such representations and warranties shall be true and correct on and as a primary inducement to Service Providers to enter into this Agreement, the undersigned Guarantor(sof such earlier date), by signing this Agreement, jointly and severally, unconditionally and irrevocably, guarantee the continuing full and faithful performance and payment by Merchant of each of its duties and obligations to Service Providers pursuant to this Agreement, as it now exists or is amended from time to time, with or without notice. Guarantor(s(iii) understands further that Service Providers may proceed directly against Guarantor(s) without first exhausting its remedies against any other person or entity responsible therefore to it or any security held by Service Providers or Merchant. Guarantor(s) hereby agrees that all rights, remedies, each Note Document to which it is a party is and recourses afforded to Service Providers by reason of this guarantee shall remain in full force and effect and shall not be impaired or otherwise are separate and cumulative and may be pursued separately, successively, or concurrently, as occasion therefore shall arise, and are nonexclusive and shall in no way limit or prejudice any other legal or equitable right, remedy, or recourse which Service Providers may have. Guarantor(s) hereby waive(s) presentment, notice of default or nonpayment, and protest and notice thereof, and consents to any modification or renewal of this Agreement or the guaranteed obligations. Guarantor(s) agree(s) to pay all costs, interest, and reasonable attorney’s fees incurred by Service Providers in collecting any amounts hereby guaranteed, whether from Guarantor(s) or Merchant, and in otherwise enforcing any of the Guaranteed Obligations. This guaranty will not be discharged or affected by the death execution of this First Amendment or any other document or instrument delivered in connection herewith; and (iv) ratifies and reaffirms the validity and enforceability of all of the undersignedLiens and security interests heretofore granted by it, will bind all heirspursuant to and in connection with the Note Documents to which such Guarantor is a party, administratorsto the Collateral Agent, representatives, on behalf and assigns and may be enforced by or for the benefit of any successor each of Service Providersthe Holders, as collateral security for the obligations of such Guarantor thereunder, and acknowledges that all of such Liens and security interests, and all collateral heretofore pledged as security for such obligations, continues to be and remain collateral for such obligations from and after the date hereof. Guarantor(s) understand(s) Although each of the Guarantors have been informed of the matters set forth herein and have acknowledged and agreed to same, each of the Guarantors understands that the inducement Collateral Agent and the Holders shall have no obligation to Service Providers inform the Guarantors of such matters in the future or to enter into this seek the Guarantors' acknowledgement or agreement is consideration for the guarantyto future amendments, waivers, or modifications, and that this guaranty remains in full force and affect even if the Guarantor(s) receive no additional benefit from the guarantynothing herein shall create such a duty.
Appears in 1 contract
