Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following: (i) the invalidity or unenforceability of any Guaranteed Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor; (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed Creditor; (iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding; (iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor; (v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor; (vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations; (vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor; (A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or (ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE II, in bankruptcy or in any other instance. (b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 7 contracts
Samples: Second Lien Credit Agreement (LRR Energy, L.P.), Guaranty and Pledge Agreement (Linn Energy, LLC), Guaranty and Pledge Agreement (Linn Energy, LLC)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands The Guarantors understand and agrees agree that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentthe full and punctual payment and performance by the Seller of the Obligations and not of their collectibility only, and each Guarantor hereby waives is in no way conditioned upon any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of requirement that the Buyer first attempt to collect any of the following and hereby agrees that its obligations hereunder shall not be discharged from the Seller, without regard to (a) the validity, regularity or otherwise affected as a result of any enforceability of the following:
(i) the invalidity or unenforceability of any Guaranteed DocumentMaster Repurchase Agreement, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyer, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person Seller against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofBuyer, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such Guarantor), the Guarantors) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for Seller from the Borrower Obligations, or of such Guarantor under the guarantee contained in Guarantors from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantorthe Guarantors, any Guaranteed Creditor the Buyer may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Seller or any other Person or against the Pledged Collateral or any other collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor the Guarantors of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyer against the Guarantors. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantors and the successors and assigns thereof, and shall inure to the benefit of the Buyer, and its successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantors under this Guaranty shall have been satisfied by payment in full and the Master Repurchase Agreement shall be terminated, notwithstanding that from time to time during the term of the Master Repurchase Agreement the Seller may be free from any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingsObligations.
Appears in 7 contracts
Samples: Guaranty and Pledge Agreement (New Century Financial Corp), Guaranty and Pledge Agreement (New Century TRS Holdings Inc), Guaranty and Pledge Agreement (New Century Financial Corp)
Guaranty Absolute and Unconditional. (a) Each Guarantor Grantor waives any and all notice of the creation, renewal, extension or accrual of any of the Secured Obligations and notice of or proof of reliance by the Collateral Agent upon the guaranty contained in this Article VI or acceptance of the guaranty contained in this Article VI; the Secured Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended, modified or waived, in reliance upon the guaranty contained in this Article VI and the grant of the security interests pursuant to Section 3.1; and all dealings between Debtor and any of the Grantors, on the one hand, and the Collateral Agent, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Article VI and the grant of the security interests pursuant to Section 3.1. Each Grantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Debtor or any of the Grantors with respect to the Secured Obligations. Each Grantor understands and agrees that the guarantee guaranty contained in this ARTICLE II isArticle VI and the grant of the security interests pursuant to Section 3.1 shall be, and shall be construed asto be, a continuing, completed, absolute and unconditional guarantee guaranty of paymentpayment and performance without regard to
(a) the validity or enforceability of the Purchase Money Notes Guaranty, and each Guarantor hereby waives any defense of a surety or guarantor Purchase Money Notes or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Ancillary Document, any of the Borrower Secured Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Collateral Agent, for the benefit of the Secured Parties, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Debtor or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofCollateral Agent, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Debtor or such Guarantor), Grantor) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Debtor for the Borrower Secured Obligations, or of such Guarantor Grantor under the guarantee guaranty contained in this ARTICLE IIArticle VI and the grant of the security interests pursuant to Section 3.1, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any GuarantorGrantor, any Guaranteed Creditor the Collateral Agent may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the BorrowerDebtor, any other Guarantor Grantor or any other Person or against any collateral security or guarantee guaranty for the Borrower Secured Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor the Collateral Agent to make any such demand, to pursue such other rights or remedies or to collect any payments from the BorrowerDebtor, any other Guarantor Grantor or any other Person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the BorrowerDebtor, any other Guarantor Grantor or any other Person or any such collateral security, guarantee guaranty or right of offset, shall not relieve any Guarantor Grantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor the Collateral Agent against any GuarantorGrantor. For the purposes hereof of this Agreement, “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 5 contracts
Samples: Reimbursement, Security and Guaranty Agreement, Reimbursement, Security and Guaranty Agreement, Reimbursement, Security and Guaranty Agreement
Guaranty Absolute and Unconditional. (a) Each The Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completedabsolute, absolute and unconditional guarantee of payment, the full and each Guarantor hereby waives punctual payment and performance by the Borrowers of the Obligations and not of their collectibility only and is in no way conditioned upon any defense of a surety or guarantor requirement that the Lender or any other obligor on any obligations arising in connection with or in respect of party first attempt to collect any of the following and hereby agrees that its obligations hereunder shall not be discharged Obligations from the Borrowers, without regard to (a) the validity, regularity or otherwise affected as a result of any enforceability of the following:
(i) the invalidity or unenforceability of Forbearance Agreement, any Guaranteed other Loan Document, any of the Borrower Obligations or any other collateral Collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Lender or any Guaranteed Creditor;
Affiliate of the Lender, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which that may at any time be available to or be asserted by the Borrower Borrowers against the Lender or any of its Affiliates, (c) any document presented in connection with the Forbearance Agreement, or any other Person against Loan Documents or this Guaranty proving to be forged, fraudulent, invalid or insufficient in any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution respect of any statement therein being untrue or lack of power of the Borrower or inaccurate in any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofrespect, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixd) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Borrowers or such the Guarantor), which ) that constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for Borrowers from the Borrower Obligations, or of such the Guarantor under the guarantee contained in from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Lender may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Borrowers or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset of the Lender or any of its Affiliates with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Lender to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrowers or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Borrowers or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Lender (or any Guaranteed Creditor of its Affiliates) against any the Guarantor. For This Guaranty shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon the Guarantor and the successors and assigns thereof, and shall include inure to the commencement benefit of the Lender (and continuance its Affiliates) and its respective successors, endorsees, transferees and assigns, in each case until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full and the Forbearance Agreement, and the other Loan Documents shall be terminated, notwithstanding that from time to time during the term of such agreement the Borrowers may be free from any legal proceedingsObligations.
Appears in 5 contracts
Samples: Guaranty (Franklin Credit Management Corp/De/), Guaranty (Franklin Credit Management Corp/De/), Guaranty (Franklin Credit Management Corp/De/)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE Article II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE Article II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 4 contracts
Samples: Subordinated Guaranty and Pledge Agreement (Teton Energy Corp), Subordinated Guaranty and Pledge Agreement (Teton Energy Corp), Subordinated Guaranty and Pledge Agreement (Teton Energy Corp)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE Article II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Secured Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed CreditorSecured Party;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed CreditorSecured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor Grantor or in the relationship between the Borrower and any ObligorGrantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any ObligorGrantor;
(A) any Guaranteed CreditorSecured Party’s election, in any proceeding instituted under chapter Chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed CreditorSecured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors Secured Parties or any of them for any reason; or (G) failure by any Guaranteed Creditor Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE Article II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor Secured Party may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor Secured Party against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 4 contracts
Samples: Second Lien Guaranty and Collateral Agreement (Petro Resources Corp), Guaranty and Collateral Agreement (Petro Resources Corp), Second Lien Guaranty and Collateral Agreement (ABC Funding, Inc)
Guaranty Absolute and Unconditional. (a) Each Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Purchasers upon the guaranty contained in this Section 2 or acceptance of the guaranty contained in this Section 2; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guaranty contained in this Section 2; and all dealings between the Company and any of the Guarantors, on the one hand, and the Purchasers, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Section 2. Each Guarantor waives, to the extent permitted by law, diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Company or any of the Guarantors with respect to the Obligations. Each Guarantor understands and agrees that the guarantee guaranty contained in this ARTICLE II is, and Section 2 shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, payment and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
performance without regard to (i) the invalidity validity or unenforceability enforceability of the Purchase Agreement or any Guaranteed other Transaction Document, any of the Borrower Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Purchasers, (ii) any defense, set-off or counterclaim (other than a defense of payment or performanceperformance or fraud by Purchasers) which may at any time be available to or be asserted by the Borrower Company or any other Person against any Guaranteed Creditor;
the Purchasers, or (iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Company or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Company for the Borrower Obligations, or of such Guarantor under the guarantee guaranty contained in this ARTICLE IISection 2, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor the Purchasers may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it they may have against the BorrowerCompany, any other Guarantor or any other Person or against any collateral security or guarantee guaranty for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor the Purchasers to make any such demand, to pursue such other rights or remedies or to collect any payments from the BorrowerCompany, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the BorrowerCompany, any other Guarantor or any other Person or any such collateral security, guarantee guaranty or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor the Purchasers against any Guarantor. For the purposes hereof hereof, “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 3 contracts
Samples: Guaranty (Giga Tronics Inc), Guaranty (DPW Holdings, Inc.), Guaranty (Avalanche International, Corp.)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of of, any of the following:
(i) the invalidity or unenforceability of any Guaranteed Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or the Guarantor; provided that upon any other Guarantor;such sale, lease or transfer, such assets shall be released in accordance with Section 8.12 of the Collateral Agreement.
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any ObligorGuarantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any ObligorGuarantor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its the Borrower’s estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 3 contracts
Samples: Senior Secured Credit Agreement (Exterran Partners, L.P.), Senior Secured Credit Agreement (Universal Compression Partners, L.P.), Guaranty Agreement (Universal Compression Partners, L.P.)
Guaranty Absolute and Unconditional. (a) Each Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Purchaser upon the guaranty contained in this Section 2 or acceptance of the guaranty contained in this Section 2; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guaranty contained in this Section 2; and all dealings between the Company and any of the Guarantors, on the one hand, and the Purchaser, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Section 2. Each Guarantor waives, to the extent permitted by law, diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Company or any of the Guarantors with respect to the Obligations. Each Guarantor understands and agrees that the guarantee guaranty contained in this ARTICLE II is, and Section 2 shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, payment and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
performance without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe Note, any of the Borrower Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Purchaser, (ii) any defense, set-off or counterclaim (other than a defense of payment or performanceperformance or fraud by Purchaser) which may at any time be available to or be asserted by the Borrower Company or any other Person against any Guaranteed Creditor;
the Purchaser, or (iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Company or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Company for the Borrower Obligations, or of such Guarantor under the guarantee guaranty contained in this ARTICLE IISection 2, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor the Purchaser may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it they may have against the BorrowerCompany, any other Guarantor or any other Person or against any collateral security or guarantee guaranty for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor the Purchaser to make any such demand, to pursue such other rights or remedies or to collect any payments from the BorrowerCompany, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the BorrowerCompany, any other Guarantor or any other Person or any such collateral security, guarantee guaranty or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor the Purchaser against any Guarantor. For the purposes hereof hereof, “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 3 contracts
Samples: Guaranty (Alzamend Neuro, Inc.), Guaranty (Ault Alliance, Inc.), Guaranty (Ault Alliance, Inc.)
Guaranty Absolute and Unconditional. (a) Each Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Purchasers upon the guaranty contained in this Section 2 or acceptance of the guaranty contained in this Section 2; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guaranty contained in this Section 2; and all dealings between the Company and any of the Guarantors, on the one hand, and the Collateral Agent, on behalf of itself and the Purchasers, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Section 2. Each Guarantor waives, to the extent permitted by law, diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Company or any of the Guarantors with respect to the Obligations. Each Guarantor understands and agrees that the guarantee guaranty contained in this ARTICLE II is, and Section 2 shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, payment and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
performance without regard to (i) the invalidity validity or unenforceability enforceability of the Purchase Agreement or any Guaranteed other Transaction Document, any of the Borrower Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Purchasers, (ii) any defense, set-off or counterclaim (other than a defense of payment or performanceperformance or fraud by Purchasers) which may at any time be available to or be asserted by the Borrower Company or any other Person against any Guaranteed Creditor;
the Purchasers, or (iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Company or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Company for the Borrower Obligations, or of such Guarantor under the guarantee guaranty contained in this ARTICLE IISection 2, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor the Collateral Agent, on behalf of itself and the Purchasers may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it they may have against the BorrowerCompany, any other Guarantor or any other Person or against any collateral security or guarantee guaranty for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor the Collateral Agent, on behalf of itself and the Purchasers to make any such demand, to pursue such other rights or remedies or to collect any payments from the BorrowerCompany, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the BorrowerCompany, any other Guarantor or any other Person or any such collateral security, guarantee guaranty or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor the Purchasers against any Guarantor. For the purposes hereof hereof, “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 2 contracts
Samples: Guaranty (Eastside Distilling, Inc.), Guaranty (BitNile Metaverse, Inc.)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each The Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder under this Guaranty are absolute and unconditional and shall not be discharged or otherwise affected as a result of any of the following:
(ia) the invalidity or unenforceability of any Guaranteed Document, any of the Borrower Issuer’ obligations under the Note or any other agreement or instrument relating thereto, or any other guaranty of the Obligations or any other collateral security therefor or guarantee or right part of offset with respect thereto at any time or from time to time held by any Guaranteed Creditorthem;
(iib) the absence of any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available attempt to or be asserted by collect the Borrower Obligations or any part of them from the Issuer or other Person against any Guaranteed Creditoraction to enforce the same;
(iiic) the disallowance in any bankruptcy, insolvency, bankruptcy arrangement, reorganization, adjustmentarrangement, compositionreadjustment of debt, liquidation, disability, liquidation or dissolution proceeding (“Bankruptcy Proceeding”) of all or lack of power any portion of the Borrower Holder’s claim (or claims) for payment of the Obligations;
(d) any other Bankruptcy Proceeding commenced by or against the Issuer, the Guarantor or any other Person at any time liable for the payment of all or part of the Obligationstheir respective subsidiaries, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest thereinthereon) in or as a result of any such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (Ge) failure by any Guaranteed Creditor the Holder to file or enforce a claim against the Borrower Issuer or its estate in any bankruptcy Bankruptcy Proceeding;
(f) any action taken by the Holder if such action is authorized hereby or insolvency case by the Note;
(g) any change in the corporate existence, structure, or proceedingownership of the Issuer;
(h) any defense, set-off or counterclaim (other than a defense of payment) which may at any time be available to or be asserted by the Guarantor or any other person against the Holder;
(i) any requirement of law affecting any term of the Guarantor’s obligations under this Guaranty; or
(ixj) any other circumstance that might otherwise constitute a legal or act whatsoever, including any action equitable discharge or omission defense of the type described in Section 2.04 (with a surety or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor guarantor or any other Person or against obligor on any collateral security or guarantee for obligations, other than the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release payment in full of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingsObligations.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Seadrill Partners LLC), Guaranty (Seadrill Partners LLC)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands Holdings waives any and agrees that all ----------------------------------- notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Agent or any Lender upon this ARTICLE II isAgreement or acceptance of this Agreement; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Agreement; and all dealings between Holdings, on the one hand, and the Agent and the Lenders, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Agreement. Holdings waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Borrower and Holdings with respect to the Obligations, and without limitation of the foregoing, specifically waives the benefits of Sections 26-7 through 26-9, inclusive, of the General Statutes of North Carolina, and Sections 49-25 and 49-26 of the Code of Virginia, each as amended from time to time, and any similar statute or law of any other jurisdiction, as the same may be amended from time to time. This Article IX shall be construed as, as a continuing, completed, absolute and unconditional guarantee guaranty of payment, payment and each Guarantor not of collection and Holdings hereby waives any defense defenses that it may now have or in the future may have, or are deemed to have, without regard to (a) the validity, regularity or enforceability of a surety or guarantor or this Agreement, any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Credit Document, any of the Borrower Obligations or any other collateral or other security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Agent or any Guaranteed Creditor;
Lender, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which that may at any time be available to or be asserted by the Borrower against the Agent or any Lender, (c) any discharge, modification, settlement, compromise or other Person against action in respect of any Guaranteed Creditor;
(iii) Obligations or any guaranty or other liability in respect thereof, including any acceptance or refusal of any offer or performance with respect to the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution same or lack of power the subordination of the Borrower or any other Guarantor or any other Person at any time liable for same to the payment of all or part of the Obligations, including any discharge ofother obligations, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixd) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of Holdings or the Borrower or such Guarantor), which Borrower) that constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor Holdings under the guarantee contained in this ARTICLE IIArticle IX, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against Holdings, the Agent and any Guarantor, any Guaranteed Creditor Lender may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Borrower or any other Person or against any collateral or other security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by the Agent or any Guaranteed Creditor to make any such demand, Lender to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrower or any such other Person or to realize upon any such collateral or other security or guarantee or to exercise any such right of offset, or any release of any of the Borrower, any other Guarantor Borrower or any such other Person or of any such collateral or other security, guarantee or right of offset, shall not relieve any Guarantor Holdings of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Agent or any Guaranteed Creditor Lender against Holdings. This Article IX shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon Holdings and its respective successors and assigns, and shall inure to the benefit of the Agent and the Lenders, and their respective successors, indorsees, transferees and assigns, until all the Obligations and the obligations of Holdings under this Agreement shall have been satisfied by payment in full and the Commitments shall have been terminated, notwithstanding that from time to time during the term of this Agreement the Borrower may be free from any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingsObligations.
Appears in 2 contracts
Samples: Credit Agreement (Markel Holdings Inc), Credit Agreement (Markel Corp)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE II Section 2 is, and shall be construed as, a continuing, completedcomplete, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of of, any of the following:
(i) the invalidity or unenforceability of any Guaranteed Loan Document, any of the Borrower Guaranteed Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed CreditorSecured Party;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed CreditorSecured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, concurso mercantil, quiebra, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the a Borrower or any other a Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(viii) (A) any Guaranteed CreditorSecured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed CreditorSecured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors Secured Parties or any of them for any reason; or (G) failure by any Guaranteed Creditor Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding;
(ix) any change in the time, manner or place of payment of, or in any other term of all or any of the Obligations; or
(ixx) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 2.4 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the such Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE IISection 2, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor Secured Party may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Guaranteed Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor Secured Party against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
(c) This Agreement is a continuing guaranty and shall remain in effect until the Full Payment of all of the Guaranteed Obligations and the Commitments shall have terminated. Each Guarantor hereby irrevocably waives any right to revoke this Agreement as to future transactions giving rise to any Obligations.
Appears in 2 contracts
Samples: Guaranty and Security Agreement (Hornbeck Offshore Services Inc /La), Guaranty and Security Agreement
Guaranty Absolute and Unconditional. (a) Each The Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completedabsolute, absolute and unconditional guarantee of payment, the full and each Guarantor hereby waives punctual payment and performance by Borrowers of the Obligations and not of their collectibility only and is in no way conditioned upon any defense of a surety or guarantor requirement that the Lender or any other obligor on any obligations arising in connection with or in respect of party first attempt to collect any of the following and hereby agrees that its obligations hereunder shall not be discharged Obligations from the Borrowers, without regard to (a) the validity, regularity or otherwise affected as a result of any enforceability of the following:
(i) the invalidity or unenforceability of Forbearance Agreement, any Guaranteed other Loan Document, any of the Borrower Obligations or any other collateral Collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Lender or any Guaranteed Creditor;
Affiliate of Lender, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which that may at any time be available to or be asserted by the Borrower Borrowers against the Lender or any of its Affiliates, (c) any document presented in connection with the Forbearance Agreement, or any other Person against Loan Documents or this Guaranty proving to be forged, fraudulent, invalid or insufficient in any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution respect of any statement therein being untrue or lack of power of the Borrower or inaccurate in any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofrespect, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixd) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Borrowers or such the Guarantor), which ) that constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for Borrowers from the Borrower Obligations, or of such the Guarantor under the guarantee contained in from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Lender may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Borrowers or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset of Lender or any of its Affiliates with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Lender to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrowers or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Borrowers or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Lender (or any Guaranteed Creditor of its Affiliates) against any Guarantor. For This Guaranty shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon the Guarantor and the successors and assigns thereof, and shall include inure to the commencement benefit of the Lender (and continuance its Affiliates) and its respective successors, endorsees, transferees and assigns, in each case until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full and the Forbearance Agreement, and the other Loan Documents shall be terminated, notwithstanding that from time to time during the term of such agreement the Borrowers may be free from any legal proceedingsObligations.
Appears in 2 contracts
Samples: Guaranty (Franklin Credit Management Corp/De/), Guaranty (Franklin Credit Management Corp/De/)
Guaranty Absolute and Unconditional. (a) Each Guarantor Guarantor, by joining herein, understands and agrees that the guarantee contained in this ARTICLE II Section 14 is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of of, any of the following:
(i) the invalidity or unenforceability of any Guaranteed Note Document, any of the Borrower Guarantied Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed CreditorHolder;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower any Obligor or any other Person against any Guaranteed CreditorHolder;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower any Obligor or any other Guarantor or any other Person at any time liable for the payment of all or part of the Guarantied Obligations, including any discharge of, or bar or stay against collecting, any Guarantied Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower any Obligor or any other Guarantor, or any changes in the shareholders Equity Interest holders of any Obligor or the Borrower or any other Guarantor;
(v) any change in the corporate entity existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligorother Guarantor;
(vi) the fact that any Collateral collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Guarantied Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral collateral for the Guarantied Obligations;
(vii) the absence of any attempt to collect the Guarantied Obligations or any part of them from any ObligorObligor or any Guarantor;
(A) any Guaranteed CreditorHolder’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrowerany Obligor, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed CreditorHolder’s claim (or claims) for repayment of the Guarantied Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors Holders or any of them for any reason; or (G) failure by any Guaranteed Creditor Holder to file or enforce a claim against the Borrower any Obligor or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 14.4 (with or without notice to or knowledge of the Borrower any Obligor or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Obligors for the Borrower Guarantied Obligations, or of such Guarantor under the guarantee contained in this ARTICLE IISection 14, in bankruptcy or in any other instanceinstance (other than payment or performance).
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor Holder may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrowerany Obligor, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Guarantied Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor Holder to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrowerany Obligor, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrowerany Obligor, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor Holder against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 2 contracts
Samples: Note Purchase Agreement (Glori Energy Inc.), Note Purchase Agreement (Glori Energy Inc.)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and shall be construed as, a continuing, completedcomplete, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of of, any of the following:
(i) the invalidity or unenforceability of any Guaranteed Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the any Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the any Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the any Borrower or any other Guarantor, or any changes in the shareholders of the a Borrower or any other a Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the any Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the any Borrower or its estate in any bankruptcy or insolvency case or proceeding;
(ix) any change in the time, manner or place of payment of, or in any other term of all or any of the Obligations; or
(ixx) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the any Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the such Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the any Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the any Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the BorrowerBorrowers, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 2 contracts
Samples: Second Lien Guaranty and Collateral Agreement (Hornbeck Offshore Services Inc /La), First Lien Guaranty and Collateral Agreement (Hornbeck Offshore Services Inc /La)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE Article II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations (other than a defense of payment or performance) arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of of, any of the following:
(i) the invalidity or unenforceability of any Guaranteed Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE Article II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 2 contracts
Samples: Guaranty and Collateral Agreement (Whiting Petroleum Corp), Guaranty and Collateral Agreement (Kodiak Oil & Gas Corp)
Guaranty Absolute and Unconditional. The obligations of the Guarantor hereunder are absolute, present, irrevocable and unconditional and shall remain in full force and effect until the Company shall have fully discharged the Obligations in accordance with their respective terms, and except as provided in Section 3.4 hereof, shall not be subject to any counterclaim, set-off, deduction or defense (aother than full and strict compliance with, or release, discharge or satisfaction of, such Obligations) Each Guarantor understands and agrees based on any claim that the guarantee contained in this ARTICLE II isGuarantor may have against the Company, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor the City or any other obligor on person. Without limiting the foregoing, the obligations of the Guarantor hereunder shall not be released, discharged or in any obligations arising in connection way modified by reason of any of the following (whether with or without notice to, knowledge by or further consent of the Guarantor):
(A) the extension or renewal of this Guaranty or the Guaranteed Agreements up to the specified Terms of each agreement;
(B) any exercise or failure, omission or delay by the City in the exercise of any right, power or remedy conferred on the City with respect to this Guaranty or the Guaranteed Agreements except to the extent such failure, omission or delay gives rise to an applicable statute of limitations defense with respect to a specific claim;
(C) any permitted transfer or assignment of rights or obligations under the Guaranteed Agreements or under any other Transaction Agreement by any party thereto, or any permitted assignment, conveyance or other transfer of any of their respective interests in the Facility or in, to or under any of the Transaction Agreements;
(D) any permitted assignment for the purpose of creating a security interest or mortgage of all or any part of the respective interests of the City or any other person in any Transaction Agreement or in the Facility;
(E) any renewal, amendment, change or modification in respect of any of the following Obligations or terms or conditions of any Transaction Agreement;
(F) any failure of title with respect to all or any part of the respective interests of any person in the Site or the Facility;
(G) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshalling of assets and hereby agrees that its obligations hereunder liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, moratorium, arrangement, composition with creditors or readjustment of, or other similar proceedings against the Company or the Guarantor, or any of the property of either of them, or any allegation or contest of the validity of this Guaranty or any other Transaction Agreement in any such proceeding (it is specifically understood, consented and agreed to that, to the extent permitted by law, this Guaranty shall remain and continue in full force and effect and shall be enforceable against the Guarantor to the same extent and with the same force and effect as if any such proceeding had not be discharged been instituted and as if no rejection, stay, termination, assumption or otherwise affected modification has occurred as a result thereof, it being the intent and purpose of this Guaranty that the Guarantor shall and does hereby waive all rights and benefits which might accrue to it by reason of any such proceeding);
(H) except as permitted by Sections 4.1 or 4.2 hereof, any sale or other transfer by the Guarantor or any Affiliate of any of the following:
(i) the invalidity capital stock or unenforceability of any Guaranteed Document, any other interest of the Borrower Obligations Guarantor or any other collateral security therefor Affiliate in the Company now or guarantee hereafter owned, directly or right indirectly, by the Guarantor or any Affiliate, or any change in composition of offset with respect thereto at any time or from time to time held by any Guaranteed Creditorthe interests in the Company;
(iiI) any defense, set-off failure on the part of the Company for any reason to perform or counterclaim (other than a defense of payment or performance) which may at comply with any time be available to or be asserted by agreement with the Borrower or any other Person against any Guaranteed CreditorGuarantor;
(iiiJ) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of failure on the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including City to provide any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or notice to the Guarantor which is not required to be given to the Guarantor pursuant to this Guaranty and to the Company as a result condition to the enforcement of such proceedingObligations pursuant to the Guaranteed Agreements;
(ivK) subject to Section 3.4 below, any failure of any party to the Transaction Agreements to mitigate damages resulting from any default by the Company or the Guarantor under any Transaction Agreement;
(L) the merger or consolidation of any party to the Transaction Agreements into or with any other person, or any sale, lease lease, transfer, abandonment or transfer other disposition of any or all of the assets property of any of the Borrower or foregoing to any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantorperson;
(vM) any change in the corporate existence (including its constitution, laws, rules, regulations legal disability or power), structure or ownership incapacity of any Obligor or in party to the relationship between the Borrower and any Obligor;Transaction Agreements; or
(viN) the fact that entering into any Collateral Transaction Agreement by the Company or Lien contemplated the Guarantor was invalid or intended to be given, created or granted as security for the repayment in excess of the Obligations shall powers of such party. Should any money due or owing under this Guaranty not be properly perfected or created, or shall prove recoverable from the Guarantor due to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
matters specified in subparagraphs (A) any Guaranteed Creditor’s electionthrough (N) above, then, in any proceeding instituted under chapter 11 such case, such money, together with all additional sums due hereunder, shall nevertheless be recoverable from the Guarantor as though the Guarantor were principal obligor in place of the Bankruptcy Code, Company pursuant to the terms of the application Guaranteed Agreements, and not merely a guarantor and shall be paid by the Guarantor forthwith subject to the terms of Section 1111(b)(2) this Guaranty. Notwithstanding anything to the contrary expressed in this Guaranty, nothing in this Guaranty shall be deemed to amend, modify, clarify, expand or reduce the Company's rights, benefits, duties or obligations under the Guaranteed Agreements. To the extent that any of the Bankruptcy Code; matters specified in subparagraphs (BA) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; through (F) and (H) through (N) would provide a defense to, release, discharge or otherwise affect the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Company's Obligations, or of such Guarantor the Guarantor's obligations under the guarantee contained in this ARTICLE II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor may, but Guaranty shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against treated the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingssame.
Appears in 2 contracts
Samples: Well Installation Agreement, Well Installation Agreement
Guaranty Absolute and Unconditional. (a) Each The Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completedabsolute, absolute and unconditional guarantee of payment, the full and each Guarantor hereby waives punctual payment and performance by the Borrowers of the Obligations and not of their collectibility only and is in no way conditioned upon any defense of a surety or guarantor requirement that the Administrative Agent or any other obligor on any obligations arising in connection with or in respect of party first attempt to collect any of the following and hereby agrees that its obligations hereunder shall not be discharged Obligations from the Borrowers, without regard to (a) the validity, regularity or otherwise affected as a result of any enforceability of the following:
(i) the invalidity or unenforceability of Credit Agreement, any Guaranteed other Loan Document, any of the Borrower Obligations or any other collateral Collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Administrative Agent or any Guaranteed Creditor;
Affiliate of Administrative Agent, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which that may at any time be available to or be asserted by the Borrower Borrowers against the Administrative Agent or any of its Affiliates, (c) any document presented in connection with the Credit Agreement, or any other Person against Loan Documents or this Guaranty proving to be forged, fraudulent, invalid or insufficient in any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution respect of any statement therein being untrue or lack of power of the Borrower or inaccurate in any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofrespect, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixd) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Borrowers or such the Guarantor), which ) that constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for Borrowers from the Borrower Obligations, or of such the Guarantor under the guarantee contained in from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Administrative Agent may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Borrowers or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset of Administrative Agent or any of its Affiliates with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Administrative Agent to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrowers or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Borrowers or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Administrative Agent (or any Guaranteed Creditor of its Affiliates) against any the Guarantor. For This Guaranty shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon the Guarantor and the successors and assigns thereof, and shall include inure to the commencement benefit of the Administrative Agent (and continuance its Affiliates) and its respective successors, endorsees, transferees and assigns, in each case until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full and the Credit Agreement, and the other Loan Documents shall be terminated, notwithstanding that from time to time during the term of such agreement the Borrowers may be free from any legal proceedingsObligations.
Appears in 2 contracts
Samples: Limited Recourse Guaranty (Franklin Credit Holding Corp/De/), Limited Recourse Guaranty (Franklin Credit Holding Corp/De/)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE Article II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Secured Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed CreditorSecured Party;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed CreditorSecured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor Grantor or in the relationship between the Borrower and any ObligorGrantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any ObligorGrantor;
(A) any Guaranteed CreditorSecured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed CreditorSecured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors Secured Parties or any of them for any reason; or (G) failure by any Guaranteed Creditor Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE Article II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor Secured Party may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor Secured Party against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 2 contracts
Samples: Guaranty and Collateral Agreement (Rex Energy Corp), Guaranty and Second Lien Collateral Agreement (Rex Energy Corp)
Guaranty Absolute and Unconditional. The obligations of the Guarantor hereunder are unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged or otherwise affected by the Depositor or the Trust, as a result of:
(a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE II isany extension, and shall be construed asrenewal, a continuingsettlement, completedcompromise, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety waiver or guarantor or any other obligor on any obligations arising in connection with or release in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Document, any of the Borrower Obligations Obligation or any other collateral security therefor related document in connection with the transactions contemplated hereby or guarantee thereby, whether by operation of law or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditorotherwise;
(iib) any defensemodification or amendment of or supplement to this Agreement, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Indenture or any other Person against any Guaranteed Creditorrelated documents;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(vc) any change in the corporate existence (including its constitution, laws, rules, regulations or power)existence, structure or ownership of the Depositor, or any Obligor insolvency, bankruptcy, reorganization or in other similar proceeding affecting the relationship between the Borrower Depositor, or its assets and properties or any Obligorresulting release or discharge of any Guaranteed Obligation;
(vid) the fact that existence of any Collateral claim, set-off, defense or Lien contemplated other right which the Guarantor may have at any time against the Depositor or intended to be given, created the Initial Purchaser or granted as security for the repayment of the Obligations shall not be properly perfected or createdits affiliates, or shall prove to be unenforceable or subordinate to any other LienPerson, it being recognized and agreed by each of whether in connection herewith or any unrelated transactions; provided, however, that nothing herein shall prevent the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value assertion of any of the Collateral for the Obligationssuch claim, set-off, defense or other right by separate suit or compulsory counterclaim;
(viie) any invalidity or unenforceability relating to or against the absence Depositor for any reason of this Agreement, the Indenture or any related documents, or any provision of applicable law purporting to prohibit the performance of any attempt to collect the Obligations or any part of them from any ObligorGuaranteed Obligation;
(Af) any Guaranteed Creditor’s election, in other act or omission to act or delay of any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien kind by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceedingDepositor; or
(ixg) any other circumstance whatsoever which might, but for the provisions of this paragraph, constitute a legal or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower ObligationsGuarantor's obligations hereunder. The guarantee provided in this Article XIII shall encompass any modification or amendment of, or of such Guarantor under the guarantee contained in this ARTICLE II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor may, but shall be under no obligation supplement to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against this Agreement, the Borrower, any other Guarantor Indenture or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingsrelated documents.
Appears in 1 contract
Samples: Sale and Servicing Agreement (American Business Financial Services Inc /De/)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE Article II is, and shall be construed as, a continuing, completedcomplete, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of of, any of the following:
: (i) the invalidity or unenforceability of any Guaranteed Document, any of the Borrower Obligations Indebtedness or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
; (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed Creditor;
; (iii) the insolvency, bankruptcy bankruptcy, arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the ObligationsIndebtedness, including any discharge of, or bar or stay against collecting, any Obligation Indebtedness (or any part of them thereof or interest therein) in or as a result of such proceeding;
; (iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
; provided that upon any such sale, lease or transfer, such assets shall be released in accordance with Section 8.12 of the Collateral Agreement; (v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and or any Obligor;
Guarantor; (vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations Indebtedness shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the ObligationsIndebtedness;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Samples: Guaranty Agreement
Guaranty Absolute and Unconditional. (a) Each The Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice or proof of reliance by the Investors upon this Guaranty or acceptance of this Guaranty; each Obligation shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between the Borrower and/or the Guarantor, on the one hand, and the Investors, on the other hand, shall be conclusively presumed to have been consummated in reliance upon this Guaranty. The Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee Guaranty of payment, payment and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
performance without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Document(1) the Purchase Agreement, the Debentures, or any of the Borrower Obligations other Transaction Documents or any document, instrument or agreement made, delivered or given in connection with the Purchase Agreement, the Debentures or any other Transaction Document, (2) any Lien securing the Obligations, (3) any of the collateral security therefor for, or guarantee any Guaranty of, the Obligations, or (4) any right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Obligations, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which that may at any time be available to to, or be asserted by by, the Borrower against the Investors, or any other Person against any Guaranteed Creditor;
(iii) the insolvencyany other circumstance whatsoever (including, without limitation, insolvency or bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation Person) that constitutes (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, ) an equitable or legal discharge of the Borrower for Obligations or the Borrower Obligations, or obligations and liabilities of such the Guarantor under this Guaranty, regardless of whether the guarantee contained in this ARTICLE II, in bankruptcy Guarantor has notice or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right knowledge of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingscircumstance.
Appears in 1 contract
Samples: Guaranty (Ener1 Inc)
Guaranty Absolute and Unconditional. Except as set forth in Section 3.4 hereof, the obligations of the Guarantor hereunder are absolute, present, irrevocable and unconditional and shall remain in full force and effect until the Subsidiaries shall have fully discharged the Obligations in accordance with their respective terms, and except as provided in Section 3.4 hereof, shall not be subject to any counterclaim, set-off, deduction or defense (aother than full and strict compliance with, or release, discharge or satisfaction of, such Obligations) Each Guarantor understands and agrees based on any claim that the guarantee contained in this ARTICLE II isGuarantor may have against the Subsidiaries, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor the Authority or any other obligor on person. Without limiting the foregoing, the obligations of the Guarantor hereunder shall not be released, discharged or in any obligations arising in connection way modified by reason of any of the following (whether with or without notice to, knowledge by or further consent of the Guarantor):
(1) the extension or renewal of this Guaranty or the Agreements in accordance with the terms of each agreement;
(2) any exercise or failure, omission or delay by the Authority in the exercise of any right, power or remedy conferred on the Authority with respect to this Guaranty or the Agreements except to the extent such failure, omission or delay gives rise to an applicable statute of limitations defense with respect to a specific claim;
(3) any permitted transfer or assignment of rights or obligations under the Agreements or under any other Transaction Agreement by any party thereto or any permitted assignment, conveyance or other transfer of any of their respective interests in the GENCO Generating Facilities or the T&D System or in, to or under any of the Transaction Agreements;
(4) any permitted assignment for the purpose of creating a security interest or mortgage of all or any part of the respective interests of the Authority or any other person in any Transaction Agreement or in the GENCO Generating Facilities or the T&D System;
(5) any renewal, amendment, change or modification in respect of any of the following Obligations or terms or conditions of any Transaction Agreement;
(6) any failure of title with respect to all or any part of the respective interests of any person in the GENCO Generating Facilities or the T&D System;
(7) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshalling of assets and hereby agrees that its obligations hereunder liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, moratorium, arrangement, composition with creditors or readjustment of, or other similar proceedings against the Subsidiaries or the Guarantor, or any of the property of either of them, or any allegation or contest of the validity of this Guaranty or any other Transaction Agreement in any such proceeding (it is specifically understood, consented and agreed to that, to the extent permitted by law, this Guaranty shall remain and continue in full force and effect and shall be enforceable against the Guarantor to the same extent and with the same force and effect as if any such proceeding had not be discharged been instituted and as if no rejection, stay, termination, assumption or otherwise affected modification has occurred as a result thereof, it being the intent and purpose of this Guaranty that the Guarantor shall and does hereby waive all rights and benefits which might accrue to it by reason of any such proceeding);
(8) except as permitted by Sections 4.1 or 4.2 hereof, any sale or other transfer by the Guarantor or any Affiliate of any of the following:
(i) the invalidity capital stock or unenforceability of any Guaranteed Document, any other interest of the Borrower Obligations Guarantor or any other collateral security therefor Affiliate in the Subsidiaries now or guarantee hereafter owned, directly or right indirectly, by the Guarantor or any Affiliate, or any change in composition of offset with respect thereto at any time or from time to time held by any Guaranteed Creditorthe interests in the Subsidiaries;
(ii9) any defense, set-off failure on the part of the Subsidiaries for any reason to perform or counterclaim (other than a defense of payment or performance) which may at comply with any time be available to or be asserted by agreement with the Borrower or any other Person against any Guaranteed CreditorGuarantor;
(iii10) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of failure on the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including Authority to provide any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or notice to the Guarantor which is not required to be given to the Subsidiaries as a result condition to the enforcement of such proceedingObligations pursuant to the Agreements;
(iv11) any failure of any party to the Transaction Agreements to mitigate damages resulting from any default by the Subsidiaries or the Guarantor under any Transaction Agreement;
(12) the merger or consolidation of any party to the Transaction Agreements into or with any other person, or any sale, lease lease, transfer, abandonment or transfer other disposition of any or all of the assets property of any of the Borrower or foregoing to any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantorperson;
(v13) any change in the corporate existence (including its constitution, laws, rules, regulations legal disability or power), structure or ownership incapacity of any Obligor or in party to the relationship between the Borrower and any Obligor;Transaction Agreements; or
(vi14) the fact that entering into any Collateral Transaction Agreement by the Subsidiaries or Lien contemplated the Guarantor was invalid or intended to be given, created or granted as security for the repayment in excess of the Obligations shall powers of such party. Should any money due or owing under this Guaranty not be properly perfected or created, or shall prove recoverable from the Guarantor due to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
matters specified in subparagraphs (vii1) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
through (A14) any Guaranteed Creditor’s electionabove, then, in any proceeding instituted under chapter 11 such case, such money, together with all additional sums due hereunder, shall nevertheless be recoverable from the Guarantor as though the Guarantor were principal obligor in place of the Bankruptcy Code, Subsidiaries pursuant to the terms of the application of Section 1111(b)(2) Agreements and not merely a guarantor and shall be paid by the Guarantor forthwith. Notwithstanding anything to the contrary expressed in this Guaranty, nothing in this Guaranty shall be deemed to amend, modify, clarify, expand or reduce the Subsidiaries' rights, benefits, duties or obligations under the Agreements. To the extent that any of the Bankruptcy Code; matters specified in subparagraphs (B1) any borrowing through (6) and (8) through (14) would provide a defense to, release, discharge or grant of a Lien by otherwise affect the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Subsidiaries' Obligations, or of such Guarantor the Guarantor's obligations under the guarantee contained in this ARTICLE II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor may, but Guaranty shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against treated the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingssame.
Appears in 1 contract
Guaranty Absolute and Unconditional. The obligations of the Guarantor hereunder are absolute, present, irrevocable and unconditional and shall remain in full force and effect until the Company shall have fully discharged the Obligations in accordance with their respective terms, and except as provided in Section 3.4 hereof, shall not be subject to any counterclaim, set-off, deduction or defense (aother than full and strict compliance with, or release, discharge or satisfaction of, such Obligations) Each Guarantor understands and agrees based on any claim that the guarantee contained in this ARTICLE II isGuarantor may have against the Company, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor the City or any other obligor on person. Without limiting the foregoing, the obligations of the Guarantor hereunder shall not be released, discharged or in any obligations arising in connection way modified by reason of any of the following (whether with or without notice to, knowledge by or further consent of the Guarantor):
(A) the extension or renewal of this Guaranty or the Phase III Site Lease up to the specified Term;
(B) any exercise or failure, omission or delay by the City in the exercise of any right, power or remedy conferred on the City with respect to this Guaranty or the Phase III Site Lease except to the extent such failure, omission or delay gives rise to an applicable statute of limitations defense with respect to a specific claim;
(C) any permitted transfer or assignment of rights or obligations under the Phase III Site Lease or under any other Transaction Agreement by any party thereto, or any permitted assignment, conveyance or other transfer of any of their respective interests in the Phase III Cogeneration Facility or in, to or under any of the Transaction Agreements;
(D) any permitted assignment for the purpose of creating a security interest or mortgage of all or any part of the respective interests of the City or any other person in any Transaction Agreement or in the Phase III Cogeneration Facility;
(E) any renewal, amendment, change or modification in respect of any of the following Obligations or terms or conditions of any Transaction Agreement;
(F) any failure of title with respect to all or any part of the respective interests of any person in the Phase III Cogeneration Facility Site or the Phase III Cogeneration Facility;
(G) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshalling of assets and hereby agrees that its obligations hereunder liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, moratorium, arrangement, composition with creditors or readjustment of, or other similar proceedings against the Company or the Guarantor, or any of the property of either of them, or any allegation or contest of the validity of this Guaranty or any other Transaction Agreement in any such proceeding (it is specifically understood, consented and agreed to that, to the extent permitted by law, this Guaranty shall remain and continue in full force and effect and shall be enforceable against the Guarantor to the same extent and with the same force and effect as if any such proceeding had not be discharged been instituted and as if no rejection, stay, termination, assumption or otherwise affected modification has occurred as a result thereof, it being the intent and purpose of this Guaranty that the Guarantor shall and does hereby waive all rights and benefits which might accrue to it by reason of any such proceeding);
(H) except as permitted by Sections 4.1 or 4.2 hereof, any sale or other transfer by the Guarantor or any Affiliate of any of the following:
(i) the invalidity capital stock or unenforceability of any Guaranteed Document, any other interest of the Borrower Obligations Guarantor or any other collateral security therefor Affiliate in the Company now or guarantee hereafter owned, directly or right indirectly, by the Guarantor or any Affiliate, or any change in composition of offset with respect thereto at any time or from time to time held by any Guaranteed Creditorthe interests in the Company;
(iiI) any defense, set-off failure on the part of the Company for any reason to perform or counterclaim (other than a defense of payment or performance) which may at comply with any time be available to or be asserted by agreement with the Borrower or any other Person against any Guaranteed CreditorGuarantor;
(iiiJ) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of failure on the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including City to provide any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or notice to the Guarantor which is not required to be given to the Guarantor pursuant to this Guaranty and to the Company as a result condition to the enforcement of such proceedingObligations pursuant to the Phase III Site Lease;
(ivK) subject to Section 3.4 below, any failure of any party to the Transaction Agreements to mitigate damages resulting from any default by the Company or the Guarantor under any Transaction Agreement;
(L) the merger or consolidation of any party to the Transaction Agreements into or with any other person, or any sale, lease lease, transfer, abandonment or transfer other disposition of any or all of the assets property of any of the Borrower or foregoing to any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantorperson;
(vM) any change in the corporate existence (including its constitution, laws, rules, regulations legal disability or power), structure or ownership incapacity of any Obligor or in party to the relationship between the Borrower and any Obligor;Transaction Agreements; or
(viN) the fact that entering into any Collateral Transaction Agreement by the Company or Lien contemplated the Guarantor was invalid or intended to be given, created or granted as security for the repayment in excess of the Obligations shall powers of such party. Should any money due or owing under this Guaranty not be properly perfected or created, or shall prove recoverable from the Guarantor due to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
matters specified in subparagraphs (A) any Guaranteed Creditor’s electionthrough (N) above, then, in any proceeding instituted under chapter 11 such case, such money, together with all additional sums due hereunder, shall nevertheless be recoverable from the Guarantor as though the Guarantor were principal obligor in place of the Bankruptcy Code, Company pursuant to the terms of the application Phase III Site Lease and not merely a guarantor and shall be paid by the Guarantor forthwith subject to the terms of Section 1111(b)(2) this Guaranty. Notwithstanding anything to the contrary expressed in this Guaranty, nothing in this Guaranty shall be deemed to amend, modify, clarify, expand or reduce the Company's rights, benefits, duties or obligations under the Phase III Site Lease. To the extent that any of the Bankruptcy Code; matters specified in subparagraphs (BA) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; through (F) and (H) through (N) would provide a defense to, release, discharge or otherwise affect the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Company's Obligations, or of such Guarantor the Guarantor's obligations under the guarantee contained in this ARTICLE II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor may, but Guaranty shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against treated the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingssame.
Appears in 1 contract
Samples: Well Installation Agreement
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE Article II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Secured Document, any of the Borrower Guaranteed Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed CreditorSecured Party;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed CreditorSecured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Guaranteed Obligations, including any discharge of, or bar or stay against collecting, any Guaranteed Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor Grantor or in the relationship between the Borrower and any ObligorGrantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranteed Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Guaranteed Obligations;
(vii) the absence of any attempt to collect the Guaranteed Obligations or any part of them from any ObligorGrantor;
(A) any Guaranteed CreditorSecured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed CreditorSecured Party’s claim (or claims) for repayment of the Guaranteed Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors Secured Parties or any of them for any reason; or (G) failure by any Guaranteed Creditor Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Guaranteed Obligations, or of such Guarantor under the guarantee contained in this ARTICLE Article II, in bankruptcy or in any other instanceinstance (other than a defense of payment or performance).
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor Secured Party may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Guaranteed Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor Secured Party against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Samples: Guaranty and Collateral Agreement (Rex Energy Corp)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE Article II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE Article II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Subsidiary Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Administrative Agent or any Secured Creditor upon the guaranty contained in this Section 14 or acceptance of the guaranty contained in this Section 14; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guaranty contained in this Section 14; and all dealings between the Borrower and any of the Subsidiary Guarantors, on the one hand, with respect to the Credit Documents and the Administrative Agent and the Secured Creditors, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Section 14. Each Subsidiary Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Borrower or any of the Subsidiary Guarantors with respect to the Obligations. Each Subsidiary Guarantor understands and agrees that the guarantee guaranty contained in this ARTICLE II is, and Section 14 shall be construed as, as a continuing, completed, absolute and unconditional guarantee guaranty of payment, and each Guarantor hereby waives any defense payment without regard to (a) the validity or enforceability of a surety or guarantor this Agreement or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Credit Document, any of the Borrower Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by the Administrative Agent or any Guaranteed Secured Creditor;
, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower Administrative Agent or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofSecured Creditor, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance whatsoever (other than a defense of payment or act whatsoever, including any action or omission of the type described in Section 2.04 performance) (with or without notice to or knowledge of the Borrower or such Subsidiary Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Subsidiary Guarantor under the guarantee guaranty contained in this ARTICLE IISection 14, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Subsidiary Guarantor, the Administrative Agent or any Guaranteed Secured Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Subsidiary Guarantor, or any other Person or against any collateral security or guarantee guaranty for the Borrower Obligations or any right of offset with respect thereto, and any failure by the Administrative Agent or any Guaranteed Secured Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Subsidiary Guarantor, or any other Person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Subsidiary Guarantor, or any other Person or any such collateral security, guarantee guaranty or right of offset, shall not relieve any Subsidiary Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Administrative Agent or any Guaranteed Secured Creditor against any Subsidiary Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each The Guarantor understands guarantees that, with respect to the Agent, the Issuing Bank, the Collateral Agent and agrees that each Lender, the guarantee contained Obligations will be paid strictly in accordance with the terms of the Credit Agreement and the other Credit 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 Collateral Agent, the Issuing Bank or any of the Lenders with respect thereto. This Guaranty is one of payment and performance and not collection and the obligations of the Guarantor under this ARTICLE II isGuaranty are independent of the Obligations, 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 any Borrower or any other guarantor or whether any Borrower or any other guarantor is joined in any such action or actions. The liability of the Guarantor under this Guaranty shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the followingirrespective of:
(i) the invalidity any lack of validity or unenforceability enforceability of any Guaranteed Documentcontractual or other agreement, instrument or document including, without limitation, the Credit Agreement, any of the Borrower Obligations other Credit Documents, any of the Obligations, or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditorthereof;
(ii) any defensechange in the time, set-off manner or counterclaim (other than a defense place of payment of, or performance) which may at in any time be available to other terms of, all or be asserted by any of the Borrower Obligations, or any other Person against amendment or waiver of or any Guaranteed Creditorconsent to departure from any contractual or other agreement among the Borrowers and the Agent, the Collateral Agent, the Issuing Bank or any Lender or any instrument or document relating thereto, including, without limitation, any increase in the Obligations resulting from the extension of additional credit to the Borrowers or otherwise;
(iii) the insolvencyany taking, bankruptcy arrangementexchange, reorganizationrelease or non-perfection of any collateral, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any taking, release or amendment or waiver of or consent to or departure from any other Guarantor guaranty (including this Guaranty with respect to any other guarantor), for all or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer failure of any or all other guarantor to satisfy its obligations in respect of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other GuarantorObligations;
(v) any change in manner of application of collateral securing any Obligation, or proceeds thereof, to all or any of the corporate existence (including its constitutionObligations, laws, rules, regulations or power), structure any manner of sale or ownership other disposition of any Obligor collateral for all or in any of the relationship between the Borrower and Obligations or any Obligorother assets of any Borrower;
(vi) any change, restructuring or termination of the fact corporate structure or existence of any Borrower; or
(vii) any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Borrowers, the Guarantor or any other guarantor with respect to the Obligations (including, without limitation, all defenses based on suretyship or impairment of collateral, and all defenses that any Collateral or Lien contemplated or intended the Borrowers may assert to be given, created or granted as security for the repayment of the Obligations Obligations, including, without limitation, failure of consideration, breach of warranty, fraud, statute of frauds, bankruptcy, lack of legal capacity, statute of limitations, lender liability, accord and satisfaction, and usury) or which might otherwise constitute a defense to this Guaranty and the obligations of the Guarantor under this Guaranty. This Guaranty shall not be properly perfected or created, or shall prove continue to be unenforceable effective or subordinate to be reinstated, as the case may be, if at any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value time any payment of any of the Obligations is rescinded or must otherwise be returned by the Agent, the Collateral for Agent, the Obligations;
(vii) Issuing Bank or any Lender upon the absence insolvency, bankruptcy or reorganization of any attempt to collect Borrower or otherwise, all as though such payment had not been made. The Guarantor agrees that if any Borrower or any other guarantor of all or a portion of the Obligations or any part is the subject of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any a bankruptcy proceeding instituted under chapter Title 11 of the Bankruptcy United States Code, it will not assert the pendency of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all such proceeding or any portion of any Guaranteed Creditor’s claim (or claims) for repayment order entered therein as a defense to the timely payment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Samples: Credit Agreement (Lynch Corp)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands The Guarantors waive any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Agent or any Lender upon this ARTICLE II isAgreement or acceptance of this Agreement; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Agreement; and all dealings between the Guarantors, on the one hand, and the Agent and the Lenders, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Agreement. The Guarantors waive diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Guarantors and the Borrower with respect to the Obligations, and without limitation of the foregoing, specifically waive the benefits of Sections 26-7 through 26-9, inclusive, of the General Statutes of North Carolina, as amended from time to time, and any similar statute or law of any other jurisdiction, as the same may be amended from time to time. This Article IX shall be construed as, as a continuing, completed, absolute and unconditional guarantee guaranty of paymentpayment and not of collection and the Guarantors hereby waive any defenses that they may now have or in the future may have, and each Guarantor hereby waives any defense or are deemed to have, without regard to (a) the validity, regularity or enforceability of a surety or guarantor or this Agreement, any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Credit Document, any of the Borrower Obligations or any other collateral Collateral or other security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Agent or any Guaranteed Creditor;
Lender, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which that may at any time be available to or be asserted by the Borrower against the Agent or any Lender, (c) any discharge, modification, settlement, compromise or other Person against action in respect of any Guaranteed Creditor;
(iii) Obligations or any guaranty or other liability in respect thereof, including any acceptance or refusal of any offer or performance with respect to the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution same or lack of power the subordination of the Borrower or any other Guarantor or any other Person at any time liable for same to the payment of all or part of the Obligations, including any discharge ofother obligations, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixd) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Guarantors or such Guarantor), which the Borrower) that constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor the Guarantors under the guarantee contained in this ARTICLE IIArticle IX, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against the Guarantors, the Agent and any Guarantor, any Guaranteed Creditor Lender may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Borrower or any other Person or against any collateral or other security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by the Agent or any Guaranteed Creditor to make any such demand, Lender to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrower or any such other Person or to realize upon any such collateral or other security or guarantee or to exercise any such right of offset, or any release of any of the Borrower, any other Guarantor Borrower or any such other Person or of any such collateral Collateral or other security, guarantee or right of offset, shall not relieve any Guarantor the Guarantors of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Agent or any Guaranteed Creditor Lender against the Guarantors. This Article IX shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantors and their respective successors and assigns, and shall inure to the benefit of the Agent and the Lenders, and their respective successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantors under this Agreement shall have been satisfied by payment in full and the Commitments shall have been terminated, notwithstanding that from time to time during the term of this Agreement the Borrower may be free from any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingsObligations.
Appears in 1 contract
Samples: Credit Agreement (Pxre Group LTD)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands The undertakings of Guarantors set forth herein are absolute and agrees that the guarantee contained in this ARTICLE II isunconditional, and the Authority shall be construed asentitled to enforce any or all of said undertakings against Guarantors without being first required to enforce any remedies or to seek to compel the Contractor to perform it obligations under the Agreement or to seek, a continuingor obtain recourse against any other party or parties, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor including but not limited to the Contractor or any other obligor on any obligations arising assignee of the Contractor, who are, or may be, liable therefore in connection with whole or in respect part, irrespective of any cause or state of facts whatsoever. Without limiting the generality of the following and hereby foregoing, the Guarantors expressly agrees that its obligations hereunder shall not be discharged affected, limited, modified or otherwise affected as a result impaired by any state of facts or the happening from time to time of an event, other than the payment of monetary obligations by the Contractor to Authority under the Agreement in accordance with the terms of the Agreement, including, without limitation, any of the following, each of which is hereby expressly waived as a defense to its liability hereunder, except to the extent such defenses would be available to the Contractor and release, discharge or otherwise offset Contractor’s obligations under the Agreement:
(ia) the invalidity invalidity, irregularity, illegality or unenforceability unenforceability, of or any Guaranteed Document, defect in or objections to the Agreement;
(b) any modification or amendment or compromise of or waiver of compliance with or consent to variation from any of the Borrower Obligations provisions of the Agreement by the Contractor;
(c) any release of any collateral or lien thereof, including, without limitation, any performance bond;
(d) any defense based upon the election of any remedies against the Guarantors of the Contractor, or both, including without limitation, any consequential loss by the Guarantors of its rights to recover any deficiency, by way of subrogation or other, from the Contractor or any other collateral security therefor person or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditorentity;
(iie) the recovery of any defense, set-off judgment against the Contractor to enforce any such collateral or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed Creditorperformance bond;
(iiif) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution Authority or lack of power its assigns taking or omitting to take any of the Borrower actions which it or any other Guarantor such assign is required to take under the Agreement; any failure, omission or any other Person at any time liable for delay on the payment of all or part of the ObligationsAuthority or its assignees to enforce, including assert or exercise any discharge ofright, power or remedy conferred on it or its assigns by the Agreement, except to the extent such failure, omission or delay gives rise to an applicable statute of limitations defense by the Contractor with respect to a specific obligation;
(g) the default or failure of the Guarantors to fully perform any of its obligations set forth in this Guaranty;
(h) the bankruptcy, insolvency, or bar similar proceeding involving or stay against collectingpertaining to the Contractor or the Authority, any Obligation (or any part order or decree of them a court, trustee or interest therein) receiver in or as a result of any such proceeding;
(ivi) in addition to those circumstances described in item (h), any sale, lease other circumstance which might otherwise constitute a legal or transfer equitable discharge of any guarantors or all limit the recourse of the assets of Authority to the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other GuarantorGuarantors;
(vj) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership absence of any Obligor or in action to enforce the relationship between the Borrower and any ObligorAgreement;
(vik) subject to the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment provisions of the Obligations Agreement relating to Uncontrollable Circumstances, any present or future law or order of any government or of any agency thereof, purporting to reduce, amend or otherwise affect the Agreement or to vary any terms of payment or performance under the Agreement; provided that, notwithstanding the foregoing, Guarantors shall not be properly perfected required to pay any monetary obligation of Contractor to Authority from which Contractor would be discharged, released or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each otherwise excused under the provisions of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE II, in bankruptcy or in any other instanceAgreement.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Samples: Municipal Solid Waste Diversion, Transfer and Transport Services Agreement
Guaranty Absolute and Unconditional. (a) Each The Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completedabsolute, absolute and unconditional guarantee of payment, the full and each Guarantor hereby waives punctual payment and performance by the Borrowers of the Obligations and not of their collectibility only and is in no way conditioned upon any defense of a surety or guarantor requirement that the Lender or any other obligor on any obligations arising in connection with or in respect of party first attempt to collect any of the following and hereby agrees that its obligations hereunder shall not be discharged Obligations from the Borrowers, without regard to (a) the validity, regularity or otherwise affected as a result of any enforceability of the following:
(i) the invalidity or unenforceability of Forbearance Agreement, any Guaranteed other Loan Document, any of the Borrower Obligations or any other collateral Collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Lender or any Guaranteed Creditor;
Affiliate of Lender, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which that may at any time be available to or be asserted by the Borrower Borrowers against the Lender or any of its Affiliates, (c) any document presented in connection with the Forbearance Agreement, or any other Person against Loan Documents or this Guaranty proving to be forged, fraudulent, invalid or insufficient in any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution respect of any statement therein being untrue or lack of power of the Borrower or inaccurate in any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofrespect, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixd) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Borrowers or such the Guarantor), which ) that constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for Borrowers from the Borrower Obligations, or of such the Guarantor under the guarantee contained in from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Lender may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Borrowers or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset of Lender or any of its Affiliates with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Lender to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrowers or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Borrowers or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Lender (or any Guaranteed Creditor of its Affiliates) against any the Guarantor. For This Guaranty shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon the Guarantor and the successors and assigns thereof, and shall include inure to the commencement benefit of the Lender (and continuance its Affiliates) and its respective successors, endorsees, transferees and assigns, in each case until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full and the Forbearance Agreement, and the other Loan Documents shall be terminated, notwithstanding that from time to time during the term of such agreement the Borrowers may be free from any legal proceedingsObligations.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE Article II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Secured Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed CreditorSecured Party;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed CreditorSecured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor Grantor or in the relationship between the Borrower and any ObligorGrantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any ObligorGrantor;
(A1) any Guaranteed CreditorSecured Party’s election, in any proceeding instituted under chapter Chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (Ba) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (Cb) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed CreditorSecured Party’s claim (or claims) for repayment of the Obligations; (Dc) any use of cash collateral under Section 363 of the Bankruptcy Code; (Ed) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (Fe) the avoidance of any Lien in favor of the Guaranteed Creditors Secured Parties or any of them for any reason; or (Gf) failure by any Guaranteed Creditor Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE Article II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor Secured Party may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether whether
(c) express, implied or available as a matter of law, of any Guaranteed Creditor Secured Party against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Samples: Guaranty and Collateral Agreement (Northern Oil & Gas, Inc.)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of of, any of the following:
(i) the invalidity or unenforceability of any Guaranteed Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other a Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Samples: Guaranty and Collateral Agreement (Hornbeck Offshore Services Inc /La)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of of, any of the followingfollowing to the extent permitted by applicable law:
(i) the invalidity or unenforceability of any Guaranteed Document, any of the Borrower Guarantor Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the any Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the any Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Guarantor Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the any Borrower or any other Guarantor, or any changes in the shareholders of the any Borrower or the Guarantor; provided that upon any other Guarantor;such sale, lease or transfer, such assets shall be released in accordance with Section 8.12 of the Collateral Agreement.
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any ObligorGuarantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Guarantor Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability collectibility or value of any of the Collateral for the Guarantor Obligations;
(vii) the absence of any attempt to collect the Guarantor Obligations or any part of them from any ObligorGuarantor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, Borrowers as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Guarantor Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the any Borrower or its any Borrower’s estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower Borrowers or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Borrowers for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the any Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Guarantor Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the any Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the any Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE II 0 is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;; Houston 3945380v.4
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 0 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE II0, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and Houston 3945380v.4 remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE Article II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Secured Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed CreditorSecured Party;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed CreditorSecured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor Grantor or in the relationship between the Borrower and any ObligorGrantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any ObligorGrantor;
(A1) any Guaranteed CreditorSecured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (Ba) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (Cb) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed CreditorSecured Party’s claim (or claims) for repayment of the Obligations; (Dc) any use of cash collateral under Section 363 of the Bankruptcy Code; (Ed) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (Fe) the avoidance of any Lien in favor of the Guaranteed Creditors Secured Parties or any of them for any reason; or (Gf) failure by any Guaranteed Creditor Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE Article II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor Secured Party may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor Secured Party against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Samples: Guaranty and Collateral Agreement (Rex Energy Corp)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other the Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands Holdings waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Agent or any Lender upon this ARTICLE II isAgreement or acceptance of this Agreement; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Agreement; and all dealings between Holdings, on the one hand, and the Agent and the Lenders, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Agreement. Holdings waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Borrower and Holdings with respect to the Obligations, and without limitation of the foregoing, specifically waives the benefits of Sections 26-7 through 26-9, inclusive, of the General Statutes of North Carolina, and Sections 49-25 and 49-26 of the Code of Virginia, each as amended from time to time, and any similar statute or law of any other jurisdiction, as the same may be amended from time to time. This Article IX shall be construed as, as a continuing, completed, absolute and unconditional guarantee guaranty of payment, payment and each Guarantor not of collection and Holdings hereby waives any defense defenses that it may now have or in the future may have, or are deemed to have, without regard to (a) the validity, regularity or enforceability of a surety or guarantor or this Agreement, any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Credit Document, any of the Borrower Obligations or any other collateral or other security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Agent or any Guaranteed Creditor;
Lender, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which that may at any time be available to or be asserted by the Borrower against the Agent or any Lender, (c) any discharge, modification, settlement, compromise or other Person against action in respect of any Guaranteed Creditor;
(iii) Obligations or any guaranty or other liability in respect thereof, including any acceptance or refusal of any offer or performance with respect to the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution same or lack of power the subordination of the Borrower or any other Guarantor or any other Person at any time liable for same to the payment of all or part of the Obligations, including any discharge ofother obligations, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixd) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of Holdings or the Borrower or such Guarantor), which Borrower) that constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor Holdings under the guarantee contained in this ARTICLE IIArticle IX, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against Holdings, the Agent and any Guarantor, any Guaranteed Creditor Lender may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Borrower or any other Person or against any collateral or other security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by the Agent or any Guaranteed Creditor to make any such demand, Lender to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrower or any such other Person or to realize upon any such collateral or other security or guarantee or to exercise any such right of offset, or any release of any of the Borrower, any other Guarantor Borrower or any such other Person or of any such collateral or other security, guarantee or right of offset, shall not relieve any Guarantor Holdings of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Agent or any Guaranteed Creditor Lender against Holdings. This Article IX shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon Holdings and its respective successors and assigns, and shall inure to the benefit of the Agent and the Lenders, and their respective successors, indorsees, transferees and assigns, until all the Obligations and the obligations of Holdings under this Agreement shall have been satisfied by payment in full and the Commitments shall have been terminated, notwithstanding that from time to time during the term of this Agreement the Borrower may be free from any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingsObligations.
Appears in 1 contract
Samples: Credit Agreement (Markel Corp)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands The Parent waives any and agrees that all notice of the guarantee creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Administrative Agent or any Bank upon the guaranty contained in this ARTICLE II isArticle X or acceptance of the guaranty contained in this Article X; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guaranty contained in this Article X; and all dealings between the Company or the Parent, on the one hand, and the Administrative Agent and the Banks, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Article X. The Parent waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Company or the Parent with respect to the Obligations. To the maximum extent permitted by applicable law, the guaranty contained in this Article X shall be construed as, as a continuing, completed, absolute and unconditional guarantee guaranty of payment, and each Guarantor hereby waives any defense payment without regard to (a) the validity or enforceability of a surety or guarantor this Agreement or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Loan Document, any of the Borrower Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by the Administrative Agent or any Guaranteed Creditor;
Bank, (iib) any defense, set-off setoff or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Company against the Administrative Agent or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofBank, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Company or such Guarantor), the Parent) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Company for the Borrower Obligations, or of such Guarantor the Parent under the guarantee guaranty contained in this ARTICLE IIArticle X, in bankruptcy or in any other instance.
(b) . When making the Administrative Agent or any demand hereunder or otherwise Bank is pursuing its rights and remedies hereunder under this Article X against the Parent, the Administrative Agent or any Guarantor, any Guaranteed Creditor Bank may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Company or any other Person or against any collateral security or guarantee guaranty for the Borrower Obligations or any right of offset with respect thereto, and any failure by the Administrative Agent or any Guaranteed Creditor to make any such demand, Bank to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Company or any such other Person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Company or any such other Person or of any such collateral security, guarantee guaranty or right of offset, shall not relieve any Guarantor the Parent of any obligation or liability hereunderunder this Article X, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor the Administrative Agent and the Banks against any Guarantor. For the purposes hereof “demand” shall include Parent all rights of the commencement and continuance of any legal proceedingsParent to require otherwise being hereby waived by the Parent.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE Article II is, and shall be construed as, a continuing, completedcomplete, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of of, any of the following:
(i) the invalidity or unenforceability of any Guaranteed Document, any of the Borrower Obligations Indebtedness or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy bankruptcy, arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the ObligationsIndebtedness, including any discharge of, or bar or stay against collecting, any Obligation Indebtedness (or any part of them thereof or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor; provided that upon any such sale, lease or transfer, such assets shall be released in accordance with Section 8.12 of the Collateral Agreement;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and or any ObligorGuarantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations Indebtedness shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the ObligationsIndebtedness;
(vii) the absence of any attempt to collect the Obligations Indebtedness or any part of them thereof from any ObligorGuarantor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the ObligationsIndebtedness; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its the Borrower’s estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower ObligationsIndebtedness, or of such Guarantor or any other Guarantor under the guarantee contained in this ARTICLE Article II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person liable on the Indebtedness or against any collateral security or guarantee for the Borrower Obligations Indebtedness or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor against any Guarantor. For the purposes hereof hereof, “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Holder upon the guarantee contained in this Section 2 or acceptance of the guarantee contained in this Section 2; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guarantee contained in this Section 2; and all dealings between the Borrower and any of the Guarantors, on the one hand, and the Holder, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guarantee contained in this Section 2. Each Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Borrower or any of the Guarantors with respect to the Obligations. Each Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Section 2 shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentpayment without regard to (a) the validity or enforceability of the Debentures, and each Guarantor hereby waives any defense of a surety or guarantor the Loan Agreement or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Loan Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Holder, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may may, at any time time, be available to or be asserted by the Borrower or any other Person person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofHolder, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE IISection 2, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor the Holder may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it they may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor the Holder to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor the Holder against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE Article II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Document, any of the Borrower Obligations Indebtedness or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the ObligationsIndebtedness, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations Indebtedness shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being 834851 recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the ObligationsIndebtedness;
(vii) the absence of any attempt to collect the Obligations Indebtedness or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the ObligationsIndebtedness; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower ObligationsIndebtedness, or of such Guarantor under the guarantee contained in this ARTICLE Article II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations Indebtedness or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each The obligations of Guarantor understands hereunder are absolute, irrevocable and agrees that unconditional and shall remain in full force and effect until the guarantee contained Obligations have been fully discharged in this ARTICLE II isaccordance with their respective terms, and shall not be construed assubject to any counterclaim, a continuingset-off, completeddeduction or defense (other than full and strict compliance with, absolute and unconditional guarantee of paymentor release, and each Guarantor hereby waives any defense of a surety discharge or guarantor satisfaction of, the Obligations or any other obligor defense that PCL may have) based on any claim that Guarantor may have against PCL, any Beneficiary, or any other person. Without limiting the foregoing, the obligations arising of Guarantor hereunder shall not be released, discharged or in connection any way modified by reason of any of the following (whether with or without notice to, knowledge by or further consent of Guarantor):
3.3.1 a non-material default by a Beneficiary under any agreement to which Guarantor or PCL is a party or in which Guarantor or PCL has any interest;
3.3.2 any exercise or failure, omission or delay by Beneficiaries (or any of them) in any exercise of any right, power or remedy conferred on Beneficiaries by the MOU, this Guaranty or the Design-Build Agreement provided, however, that this provision shall not affect any applicable statute of limitations defense available to Guarantor;
3.3.3 any transfer or assignment of rights, obligations or interests under the MOU or the Design-Build Agreement by any party thereto that is permitted under such agreement, other than as permitted by section XXII.A. of the MOU or Sections 4.1 and 4.4 of this Guaranty.
3.3.4 any permitted assignment for the purpose of creating a security interest in or mortgage against all or any part of the respective interests of a Beneficiary, or any other person in the Design-Build Agreement;
3.3.5 any renewal, extension, amendment, change or modification in respect of any of the following and hereby agrees Obligations or other terms or conditions of the MOU, Design-Build Agreement or this Guaranty that its obligations hereunder shall not be discharged is otherwise permitted by any such agreement;
3.3.6 the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets of PCL or Guarantor; any marshaling of the assets or liabilities of PCL or Guarantor; any receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, moratorium, arrangement, composition with creditors or readjustment of, or other similar proceedings against PCL or Guarantor, or any of the property of either of them; or any allegation or contest of the validity or enforceability of the MOU, this Guaranty or the Design-Build Agreement in any such proceeding or otherwise affected (it is specifically understood, consented and agreed to that, to the extent permitted by law, this Guaranty shall remain and continue in full force and effect as if any such proceeding had not been instituted and as if no rejection, stay, termination, assumption or modification has occurred as a result thereof, it being the intent and purpose of this Guaranty that Guarantor shall and does hereby waive all rights and benefits which might accrue to it, as against any Beneficiary’s rights hereunder, by reason of any such proceeding);
3.3.7 except as expressly permitted by Sections 4.1 and 4.4 of this Guaranty, any sale or other transfer by Guarantor or any of its affiliates of any of their respective interests in PCL now or hereafter owned, directly or indirectly, or any change in the following:ownership of PCL;
(i) 3.3.8 any failure on the invalidity part of PCL for any reason to perform or unenforceability comply with any agreement with Guarantor;
3.3.9 the failure on the part of Beneficiaries to provide any notice to Guarantor or PCL, except to the extent that such failure would provide PCL with a defense against any claim by any Beneficiary;
3.3.10 any failure of any Guaranteed Documentparty to the Design-Build Agreement to mitigate damages resulting from any default by PCL or Guarantor under the Design-Build Agreement or by Guarantor hereunder, except to the extent that such failure would provide PCL with a defense against any claim by any Beneficiary;
3.3.11 the merger or consolidation of any party to the Borrower Obligations Design-Build Agreement into or with any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofperson, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease lease, transfer, abandonment or transfer other disposition of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value property of any of the Collateral foregoing to any other person, so long as no Beneficiary disposes of assets necessary for its performance under the ObligationsMOU or the Design-Build Agreement;
(vii) the absence 3.3.12 any legal disability or incapacity of any attempt party to collect the Obligations MOU or any part of them from any ObligorDesign-Build Agreement;
(A) any Guaranteed Creditor’s election3.3.13 a finding by a court of competent jurisdiction that entering into the MOU or Design-Build Agreement by PCL or Guarantor was invalid, not properly authorized, or in any proceeding instituted under chapter 11 excess of the Bankruptcy Code, powers of such party;
3.3.14 the termination of the application Design-Build Agreement by PCL pursuant to the terms thereof, except to the extent any such termination would relieve PCL of Section 1111(b)(2) liability under such agreement.
3.3.15 the obtaining by Beneficiaries of the Bankruptcy Code; (B) any borrowing guaranty or grant of a Lien by the Borrower, as debtor-in-possession, other credit support or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion security of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceedingperson other than Guarantor; or
(ix) 3.3.16 any performance by Guarantor from time to time hereunder, unless and until all the Obligations have been paid and performed in full in accordance with their terms. Should any money due or owing under this Guaranty not be recoverable from Guarantor due to any of the matters specified in subsections 3.3.1 through 3.3.17, above, or for any other circumstance or act whatsoeverreason, including then in any action or omission such case, such money, together with all additional sums due hereunder, shall nevertheless be recoverable from Guarantor as though Guarantor were the principal obligor in place of PCL pursuant to the terms of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights Design-Build Agreement and remedies hereunder against any Guarantor, any Guaranteed Creditor may, but shall be under no obligation to, join or make not merely a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunderguarantor, and shall not impair be paid by Guarantor forthwith. Notwithstanding anything to the contrary expressed herein, nothing herein shall be deemed to amend, modify, clarify, expand or affect reduce PCL’s rights, benefits, duties or obligations under the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingsDesign- Build Agreement.
Appears in 1 contract
Samples: Guaranty Agreement
Guaranty Absolute and Unconditional. (a) Each The Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each the Guarantor hereby waives any defense of a surety or guarantor or any other obligor Guarantor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other GuarantorBorrower, or any changes in the shareholders of the Borrower or any other GuarantorBorrower;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor the Guarantor or in the relationship between the Borrower and any Obligorthe Guarantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors Guarantor that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligorthe Guarantor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such the Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such the Guarantor under the guarantee contained in this ARTICLE II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Borrower or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrower or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Borrower or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor against any the Guarantor. For the purposes hereof hereof, “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Samples: Guaranty and Pledge Agreement (Petro Resources Corp)
Guaranty Absolute and Unconditional. (a) Each Guarantor Grantor waives any and all notice of the creation, renewal, extension, amendment, modification, waiver or accrual of any of the Secured Obligations and notice of or proof of reliance by the Collateral Agent upon the guaranty contained in this Article VI or acceptance of the guaranty contained in this Article VI; the Secured Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended, modified or waived, in reliance upon the guaranty contained in this Article VI and the grant of the security interests pursuant to Section 3.1; and all dealings between the Debtor and any of the Grantors, on the one hand, and the Collateral Agent, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Article VI and the grant of the security interests pursuant to Section 3.1. Each Grantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Debtor or any of the Grantors with respect to the Secured Obligations. Each Grantor understands and agrees that the guarantee guaranty contained in this ARTICLE II isArticle VI and the grant of the security interests pursuant to Section
3.1 shall be, and shall be construed asto be, a continuing, completed, absolute and unconditional guarantee guaranty of paymentpayment and performance without regard to (a) the validity or enforceability of the Advance Facility Agreement, and each Guarantor hereby waives any defense of a surety or guarantor Purchase Money Notes Guaranty, any Purchase Money Notes or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Transaction Document, any of the Borrower Secured Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Collateral Agent, for the benefit of the Secured Parties, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Debtor or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofCollateral Agent, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Debtor or such Guarantor), Grantor) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Debtor for the Borrower Secured Obligations, or of such Guarantor under Grantor pursuant to the guarantee guaranty contained in this ARTICLE IIArticle VI and the grant of the security interests pursuant to Section 3.1, in bankruptcy or in any other instance.
(b) . When making any demand hereunder pursuant to this Agreement or otherwise pursuing its rights and remedies hereunder against any GuarantorGrantor, any Guaranteed Creditor the Collateral Agent may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may might have against the BorrowerDebtor, any other Guarantor Grantor or any other Person or against any collateral security or guarantee guaranty for the Borrower Secured Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor the Collateral Agent to make any such demand, to pursue such other rights or remedies or to collect any payments from the BorrowerDebtor, any other Guarantor Grantor or any other Person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the BorrowerDebtor, any other Guarantor Grantor or any other Person or any such collateral security, guarantee guaranty or right of offset, shall not relieve any Guarantor Grantor of any obligation or liability hereunderpursuant to this Agreement, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor the Collateral Agent against any GuarantorGrantor. For the purposes hereof of this Agreement, “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Guaranty Absolute and Unconditional. The obligations of the Guarantor hereunder are absolute, present, irrevocable and unconditional and shall remain in full force and effect until the Operator shall have fully discharged the Obligations in accordance with their respective terms, and except as provided in SECTION 3.05 hereof, shall not be subject to any counterclaim, set-off, deduction or defense (aother than full and strict compliance with, or release, discharge or satisfaction of such Obligations) Each Guarantor understands and agrees based on any claim that the guarantee contained in this ARTICLE II isGuarantor may have against the Operator, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor the RECEIVER/TRUSTEE or any other obligor on person. Without limiting the foregoing, the obligations of the Guarantor hereunder shall not be released, discharged or in any obligations arising in connection way modified by reason of any of the following (whether with or without notice to, knowledge by or further consent of the Guarantor):
(1) the extension or renewal of this Guaranty or the Agreement up to the specified Terms of each agreement;
(2) any exercise or failure, omission or delay by the RECEIVER/TRUSTEE in the exercise of any right, power or remedy conferred on the RECEIVER/TRUSTEE with respect to this Guaranty or the Agreement except to the extent such failure, omission or delay gives rise to an applicable statute of limitations defense with respect to a specific claim;
(3) any permitted transfer or assignment of rights or obligations under the Agreement by any party thereto (other than a permitted assignment to a replacement operator in the event of a termination of the Operator pursuant to ARTICLE XIII of the Agreement), or any permitted assignment, conveyance or other transfer of any of their respective interests in the ORDOT FACILITY;
(4) any permitted assignment for the purpose of creating a security interest or mortgage of all or any part of the respective interests of the RECEIVER/TRUSTEE or any other person in the ORDOT FACILITY;
(5) any renewal, amendment, change or modification in respect of any of the following Obligations or terms or conditions of the Agreement;
(6) any failure of title with respect to all or any part of the respective interests of any person in the ORDOT FACILITY;
(7) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshalling of assets and hereby agrees that its obligations hereunder liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, moratorium, arrangement, composition with creditors or readjustment of, or other similar proceedings against the Operator or the Guarantor, or any of the property of either of them, or any allegation or contest of the validity of this Guaranty or the Agreement in any such proceeding (it is specifically understood, consented and agreed to that, to the extent permitted by law, this Guaranty shall remain and continue in full force and effect and shall be enforceable against the Guarantor to the same extent and with the same force and effect as if any such proceeding had not be discharged been instituted and as if no rejection, stay, termination, assumption or otherwise affected modification has occurred as a result thereof, it being the intent and purpose of this Guaranty that the Guarantor shall and does hereby waive all rights and benefits which might accrue to it by reason of any such proceeding);
(8) except as permitted by SECTION 4.01 or 4.02 hereof, any sale or other transfer by the Guarantor or any affiliate of any of the following:
(i) the invalidity capital stock or unenforceability of any Guaranteed Document, any other interest of the Borrower Obligations Guarantor or any other collateral security therefor affiliate in the Operator now or guarantee hereafter owned, directly or right indirectly, by the Guarantor or any affiliate, or any change in composition of offset with respect thereto at any time or from time to time held by any Guaranteed Creditorthe interests in the Operator;
(ii9) any defense, set-off failure on the part of the Operator for any reason to perform or counterclaim (other than a defense of payment or performance) which may at comply with any time be available to or be asserted by agreement with the Borrower or any other Person against any Guaranteed CreditorGuarantor;
(iii10) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of failure on the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including RECEIVER/TRUSTEE to provide any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or notice to the Guarantor which is not required to be given to the Guarantor pursuant to this Guaranty and to the Operator as a result condition to the enforcement of such proceedingObligations pursuant to the Agreement;
(iv11) the merger or consolidation of any party to the Agreement into or with any other person, or any sale, lease lease, transfer, abandonment or transfer other disposition of any or all of the assets property of any of the Borrower or foregoing to any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantorperson;
(v12) any change in the corporate existence (including its constitution, laws, rules, regulations legal disability or power), structure or ownership incapacity of any Obligor or in party to the relationship between the Borrower and any Obligor;Agreement; or
(vi13) the fact that any Collateral entering into the Agreement by the Operator or Lien contemplated the Guarantor was invalid or intended to be given, created or granted as security for the repayment in excess of the Obligations shall powers of such party. Should any money due or owing under this Guaranty not be properly perfected or created, or shall prove recoverable from the Guarantor due to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
matters specified in subparagraphs (vii1) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
through (A13) any Guaranteed Creditor’s electionabove, then, in any proceeding instituted under chapter 11 such case, such money, together with all additional sums due hereunder, shall nevertheless be recoverable from the Guarantor as though the Guarantor were principal obligor in place of the Bankruptcy Code, Operator pursuant to the terms of the application Agreement and not merely a guarantor and shall be paid by the Guarantor forthwith subject to the terms of Section 1111(b)(2) this Guaranty. Notwithstanding anything to the contrary expressed in this Guaranty, nothing in this Guaranty shall be deemed to amend, modify, clarify, expand or reduce the Operator’s rights, benefits, duties or obligations under the Agreement. To the extent that any of the Bankruptcy Code; matters specified in subparagraphs (B1) any borrowing through (6) and (8) through (13) would provide defense to, release, discharge or grant of a Lien by otherwise affect the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed CreditorOperator’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor the Guarantor’s obligations under the guarantee contained in this ARTICLE II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor may, but Guaranty shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against treated the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingssame.
Appears in 1 contract
Samples: Agreement to Operate
Guaranty Absolute and Unconditional. (a) Each Guarantor waives, to the maximum extent permitted by applicable law, any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Administrative agent or any other Secured Creditor upon the guaranty contained in this Section 13 or acceptance of the guaranty contained in this Section 13; each of the Obligations, and any obligation contained therein, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guaranty contained in this Section 13; and all dealings between the Borrowers and any of the other Credit Parties, on the one hand, and the Administrative agent and the other Secured Creditors, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Section 13. Except as expressly required under the Final DIP Order, each Guarantor waives, to the maximum extent permitted by applicable law, diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon any of the Borrower or any of the other Credit Parties with respect to any of the Obligations. Each Guarantor understands and agrees agrees, to the extent permitted by law, that the guarantee guaranty contained in this ARTICLE II is, and Section 13 shall be construed as, as a continuing, completed, absolute and unconditional guarantee guaranty of payment, payment and each not of collection. Each Guarantor hereby waives waives, to the maximum extent permitted by applicable law, any defense and all defenses that it may have arising out of a surety or guarantor in connection with any and all of the following: (a) the validity or enforceability of this Agreement or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Credit Document, any of the Borrower Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by the Administrative agent or any Guaranteed other Secured Creditor;
, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which that may at any time be available to or be asserted by any Borrower against the Administrative agent or any other Secured Creditor, (c) any change in the time, place, manner or place of payment or any amendment, waiver or increase in any of the Obligations in accordance with the terms of the documentation evidencing the same, (d) any exchange, taking, or release of Collateral, (e) any change in the structure or existence of any of the Borrower or any of the other Credit Parties (except as provided in, or permitted by, this Agreement), (f) any application of Collateral to any of the Obligations, (g) any law, regulation or order of any jurisdiction, or any other event, affecting any term of any Obligation or the rights of the Administrative agent or any other Secured Creditor with respect thereto, including, without limitation: (i) the application of any such law, regulation, decree or order, including any prior approval, which would prevent the exchange of any currency (other than Dollars) for Dollars or the remittance of funds outside of such jurisdiction or the unavailability of Dollars in any legal exchange market in such jurisdiction in accordance with normal commercial practice, (ii) a declaration of banking moratorium or any suspension of payments by banks in such jurisdiction or the imposition by such jurisdiction or any Governmental Authority thereof of any moratorium on, the required rescheduling or restructuring of, or required approval of payments on, any indebtedness in such jurisdiction, (iii) any expropriation, confiscation, nationalization or requisition by such country or any Governmental Authority that directly or indirectly deprives the Borrower or any other Person against Credit Party of any Guaranteed Creditor;
(iii) the insolvencyassets or their use, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower ability to operate its business or any other Guarantor or any other Person at any time liable for the payment of all or a material part of the Obligations, including any discharge ofthereof, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease war (whether or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or powernot declared), structure insurrection, revolution, hostile act, civil strife or ownership of any Obligor similar events occurring in such jurisdiction which has the same effect as the events described in clause (i), (ii) or (iii) above (in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into cases contemplated in clauses (i) through (iv) above, to the extent occurring or existing on or at any time after the date of this Agreement in reliance onAgreement), or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixh) any other circumstance or act whatsoever, including any action or omission whatsoever (other than payment in full in cash of the type described in Section 2.04 Obligations (other than inchoate indemnity obligations) guaranteed by it hereunder) (with or without notice to or knowledge of the Borrower or such Guarantor), which any other Credit Party) that constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower or any other Credit Party for the Borrower its Obligations, or of such Guarantor under the guarantee guaranty contained in this ARTICLE IISection 13, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, the Administrative Agent or any Guaranteed other Secured Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee guaranty for the Borrower Obligations guaranteed by such Guarantor hereunder or any right of offset with respect thereto, and any failure by the Administrative Agent or any Guaranteed other Secured Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee guaranty or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Administrative Agent or any Guaranteed other Secured Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Samples: Debtor in Possession Credit Agreement (Walter Energy, Inc.)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees guarantees that the guarantee contained Guaranteed Obligations will be paid in accordance with the terms of the Credit Agreement and the Notes, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights and claims of any Holder of Guaranteed Obligations against Borrower with respect thereto and even if any such rights or claims are modified, reduced or discharged in an Insolvency or Liquidation Proceeding or otherwise. The obligations of each Guarantor under this ARTICLE II isGuaranty are independent of the Guaranteed Obligations, 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 Borrower or whether Borrower is joined in any such action or actions. The liability of each Guarantor under this Guaranty shall be construed as, a continuing, completed, absolute and unconditional guarantee irrespective of payment, and each Guarantor hereby waives (i) any defense lack of a surety validity or guarantor enforceability of the Credit Agreement or any Note or any other obligor on any obligations arising in connection with agreement or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
instrument relating thereto; (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitutiontime, laws, rules, regulations manner or power), structure or ownership place of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits payment of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE II, in bankruptcy or in any other instance.
(b) When making term of, all or any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantorof the Guaranteed Obligations, any Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person amendment or against any collateral security or guarantee for the Borrower Obligations waiver of or any right of offset with respect thereto, and any failure by any Guaranteed Creditor consent to make any such demand, to pursue such other rights or remedies or to collect any payments departure from the BorrowerCredit Agreement or any Note, including, without limitation, any other Guarantor increase in the Guaranteed Obligations resulting from the extension of additional credit to Borrower or otherwise; (iii) any other Person taking, exchange, release or to realize upon non-perfection of any such collateral security or guarantee or to exercise any such right of offsetcollateral, or any taking, release or amendment or waiver of or consent to departure from any other guaranty, for all or any of the Borrower, Guaranteed Obligations; (iv) any other Guarantor or any other Person or any such collateral security, guarantee or right manner of offset, shall not relieve any Guarantor application of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.collateral,
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other the Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall demand”shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor waives, to the maximum extent permitted by applicable law, any and all notice of the creation, renewal, extension or accrual of any of the Secured Obligations and notice of or proof of reliance by the Collateral Agent or any other Secured Creditor upon the guaranty contained in this Article II or acceptance of the guaranty contained in this Article II; each of the Secured Obligations, and any obligation contained therein, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guaranty contained in this Article II; and all dealings between the Borrower, any of the other Credit Parties and any other Subsidiaries of the Borrower, on the one hand, and the Collateral Agent and the other Secured Creditors, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Article II. Each Guarantor waives, to the maximum extent permitted by applicable law, diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon any of the Borrower, any of the other Credit Parties or any other Subsidiaries of the Borrower with respect to any of the Secured Obligations. Each Guarantor understands and agrees agrees, to the extent permitted by law, that the guarantee guaranty contained in this ARTICLE Article II is, and shall be construed as, as a continuing, completed, absolute and unconditional guarantee guaranty of payment, payment and each not of collection. Each Guarantor hereby waives waives, to the maximum extent permitted by applicable law, any defense and all defenses that it may have arising out of a surety or guarantor in connection with any and all of the following: (a) the validity or enforceability of this Agreement, the Credit Agreement or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed DocumentSecured Debt Agreements, any of the Borrower Secured Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by the Collateral Agent or any Guaranteed other Secured Creditor;
, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which that may at any time be available to or be asserted by the Borrower or any other Person Subsidiary thereof against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower Collateral Agent or any other Guarantor or any other Person at any time liable for the payment of all or part of the ObligationsSecured Creditor, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(vc) any change in the corporate existence time, manner or place of payment or any amendment, waiver or increase in any of the Secured Obligations in accordance with the terms of the documentation evidencing the same, (including its constitutiond) any exchange, lawstaking, rulesor release of Collateral, regulations or power), (e) any change in the structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value existence of any of the Borrower, any of the other Credit Parties or any other Subsidiary of the Borrower (except in connection with any release permitted by Section 7.13 or any other liquidation, merger or dissolution permitted by the Credit Agreement), (f) any application of Collateral for to any of the Secured Obligations;
, (viig) the absence any law, regulation or order of any attempt to collect the Obligations jurisdiction, or any part other event, affecting any term of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 Secured Obligation or the rights of the Bankruptcy CodeCollateral Agent or any other Secured Creditor with respect thereto, of including, without limitation: (i) the application of Section 1111(b)(2any such law, regulation, decree or order, including any prior approval, which would prevent the exchange of any currency (other than Dollars) for Dollars or the remittance of funds outside of such jurisdiction or the Bankruptcy Code; unavailability of Dollars in any legal exchange market in such jurisdiction in accordance with normal commercial practice, (Bii) a declaration of banking moratorium or any suspension of payments by banks in such jurisdiction or the imposition by such jurisdiction or any Governmental Authority thereof of any moratorium on, the required rescheduling or restructuring of, or required approval of payments on, any indebtedness in such jurisdiction, (iii) any borrowing expropriation, confiscation, nationalization or grant of a Lien requisition by such country or any Governmental Authority that directly or indirectly deprives the Borrower, as debtor-in-possessionany other Credit Party or any other Subsidiary of the Borrower of any assets or their use, or extension of credit, under Section 364 of the Bankruptcy Code; ability to operate its business or a material part thereof, or (Civ) any war (whether or not declared), insurrection, revolution, hostile act, civil strife or similar events occurring in such jurisdiction which has the disallowancesame effect as the events described in clause (i), under Section 502 (ii) or (iii) above (in each of the Bankruptcy Codecases contemplated in clauses (i) through (iv) above, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision extent occurring or existing on or at any time after the date of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; this Agreement), or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixh) any other circumstance or act whatsoever, including any action or omission whatsoever (other than payment in full in cash of the type described in Section 2.04 Secured Obligations (other than inchoate indemnity and expense reimbursement obligations) guaranteed by it hereunder) (with or without notice to or knowledge of the Borrower Borrower, any other Credit Party or such Guarantor), which any other Subsidiary of the Borrower) that constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower, any other Credit Party or any other Subsidiary of the Borrower for the Borrower its Secured Obligations, or of such Guarantor under the guarantee guaranty contained in this ARTICLE Article II, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, the Collateral Agent or any Guaranteed other Secured Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee guaranty for the Borrower Secured Obligations guaranteed by such Guarantor hereunder or any right of offset with respect thereto, and any failure by the Collateral Agent or any Guaranteed other Secured Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee guaranty or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Collateral Agent or any Guaranteed other Secured Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Samples: Credit Agreement (Semtech Corp)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each a. Guarantor hereby waives guarantees to Buyer the payment in full when due by each Seller (whether at the stated maturity, by acceleration or otherwise) of the Obligations after giving effect to any defense applicable notice or grace period.
b. The Guarantor agrees to promptly pay all reasonable out-of-pocket expenses (including the reasonable fees and expenses of a surety counsel) incurred in the enforcement or guarantor protection of the rights of Buyer or any other obligor on any obligations arising in the collection of payments hereunder in connection with or a failure by any Seller to pay the Obligations or, to the extent incurred after demand under the Guaranty has been made and not timely honored, in respect connection with a breach of any of this Guaranty by the following and Guarantor.
c. Guarantor hereby agrees that its obligations hereunder shall not be discharged absolute, continuing and unconditional, irrespective of (i) the validity, regularity or otherwise affected enforceability of the Agreement (other than as a result of any the termination of this Agreement upon payment in full of the following:
(i) Obligations and a written notice of termination has been delivered by the invalidity or unenforceability Buyer, which written notice shall be promptly delivered by Buyer upon such payment in full, including by means of any Guaranteed Documentset-off to the extent set-off is permitted under the Agreement), any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
(ii) the absence of any defenseaction to enforce the same, set-off any waiver or counterclaim (other than a defense of payment or performance) which may at consent by Buyer concerning any time be available to or be asserted by the Borrower or any other Person against any Guaranteed Creditor;
provisions thereof, (iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack rendering of power of the Borrower any judgment against any Seller or any other Guarantor or any other Person at any time liable for action to enforce the payment of all or part of the Obligationssame, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any salethe existence, lease validity, enforceability, perfection or transfer extent of any or all of the assets of the Borrower collateral therefore or any other Guarantorrelease of such collateral, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitutiontime, lawsmanner or place of payment of, rules, regulations or power), structure or ownership of any Obligor or in any other term of, the relationship between Agreement or any transaction or confirmation thereunder, any other amendment or waiver of, or any consent to departure from, any of the Borrower and terms of the Agreement or any Obligor;
transaction or confirmation thereunder, including any increase or decrease in any amount payable thereunder or the rate at which any interest or amount shall accrue thereunder, (vi) the fact that any Collateral release or Lien contemplated amendment or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or createdwaiver of, or shall prove consent to be unenforceable or subordinate to departure from, any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance onguaranty or support document, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance that might otherwise constitute a legal or act whatsoeverequitable discharge of a guarantor or a defense of a guarantor (other than the defense of the statute of limitations or as a result of the termination of this Agreement and payment in full of the Obligations, including by means of set-off to the extent set-off is permitted under the Agreement). For the avoidance of doubt, the parties agree that (i) any action amendment or omission waiver with respect to the Agreement that affects the Obligations under this Guaranty shall modify the Obligations under this guaranty accordingly, and (ii) the Obligations under this Guaranty may be satisfied by means of set-off to the extent set-off is permitted under the Agreement, and that the Guarantor may also exercise any right that any Seller may exercise under the Agreement to cure any default in respect of its obligations under the Agreement and may interpose any defense which any Seller is or would have been entitled to interpose (other than any defense arising by reason of any disability, lack of capacity, bankruptcy or insolvency of any Seller or as otherwise provided for herein); provided, however, that the Guarantor’s obligations hereunder may not be reduced by set-off against any other amounts as may payable by the Buyer to the Guarantor arising under other contracts or obligations existing between the Guarantor and the Buyer (if any).
d. In case of the type described in Section 2.04 (with or without notice failure of any Seller to or knowledge of punctually pay the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or the Guarantor hereby agrees upon written demand by the Buyer to cause any such payment to be made pursuant to the terms of such Guarantor under the guarantee contained in this ARTICLE II, in bankruptcy or in any other instance.
(b) Guaranty. When making any demand hereunder against Guarantor, or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor Buyer may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor an Seller or any other Person person or against any collateral security or guarantee guaranty for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor an Seller or any such other Person person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of Buyer against Guarantor.
e. This Guaranty, which is a guaranty of payment and not of collection only, shall remain in full force and effect until thirty days after the date Buyer terminates this Guaranty upon written notice. It is understood and agreed, however, that notwithstanding any Guaranteed Creditor against such termination this Guaranty shall continue in full force and effect with respect to all Obligations arising prior to such termination, including for greater certainty, Obligations arising from transactions entered into prior to the termination of this Guaranty. Guarantor further agrees that this Guaranty shall continue to be effective or be reinstated, as the case may be, if at any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance time payment, or any part thereof, of any Obligation is rescinded or must otherwise be restored or returned due to bankruptcy or insolvency laws or otherwise. This Guaranty shall continue to be effective if any Seller changes its name, merges or consolidates with or into another entity, loses its separate legal proceedingsentity or ceases to exist.
f. This Guaranty shall inure to the benefit of Buyer, and its successors, endorsees, transferees and assigns until all the Obligations and the obligations of Guarantor under this Guaranty shall have been discharged, terminated or satisfied by payment in full, notwithstanding that, from time to time, an Seller may be free from any Obligations.
g. Guarantor waives acceptance of this Guaranty, diligence, set-off promptness, presentment, protest, notice of protest, acceleration and dishonor, filing of claims with a court in the event of insolvency or bankruptcy of any Seller, and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by Buyer upon this Guaranty.
Appears in 1 contract
Samples: Guaranty (Angel Oak Mortgage, Inc.)
Guaranty Absolute and Unconditional. (a) Each Guarantor waives, to the maximum extent permitted by Requirement of Law, any and all notice of or proof of reliance by any Secured Creditor upon the guaranty contained in this Section 2 or acceptance of the guaranty contained in this Section 2; the Secured Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guaranty contained in this Section 2; and all dealings between the Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the other Secured Creditors, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Section 2. Each Guarantor understands and agrees agrees, to the extent permitted by Requirement of Law, that the guarantee guaranty contained in this ARTICLE II is, and Section 2 shall be construed as, as a continuing, completedabsolute, absolute irrevocable, independent and unconditional guarantee guaranty of payment, payment when due and not collectability. Each Guarantor agrees the guaranty contained in this Section 2 is a primary obligation of each Guarantor and not merely a contract of surety. Each Guarantor hereby waives waives, to the maximum extent permitted by Requirement of Law, any defense and all defenses (other than any suit for breach of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect contractual provision of any of the following Loan Documents) that it may have arising out of or in connection with any and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any all of the following:
: (i) the invalidity or unenforceability of any Guaranteed Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence time, place, manner or place of payment, amendment, waiver or increase in the Secured Obligations, (including its constitutionii) any exchange, lawstaking, rulesor release of Collateral, regulations or power), (iii) any change in the structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment existence of the Obligations shall not be properly perfected or createdBorrower, or shall prove (iv) any application of Collateral to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Secured Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixv) any other circumstance or act whatsoever, including any action or omission whatsoever (other than indefeasible payment in full of the type described in Section 2.04 Secured Obligations guaranteed by it hereunder) (with or without notice to or knowledge of the Borrower or such Guarantor), which ) that constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Secured Obligations, or of such Guarantor under the guarantee guaranty contained in this ARTICLE IISection 2, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor of the Secured Creditors may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee guaranty for the Borrower Secured Obligations guaranteed by such Guarantor hereunder or any right of offset with respect thereto, and any failure by any Guaranteed Creditor of the Secured Creditors to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee guaranty or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Secured Creditor against any Guarantor. For the purposes hereof “"demand” " shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Samples: Guaranty and Security Agreement (Steiner Leisure LTD)
Guaranty Absolute and Unconditional. (a) Each Guarantor waives, to the maximum extent permitted by applicable law, any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Collateral Agent or any other Secured Creditor upon the guaranty contained in this Article II or acceptance of the guaranty contained in this Article II; each of the Obligations, and any obligation contained therein, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guaranty contained in this Article II; and all dealings between the Borrower and any of the other Credit Parties, on the one hand, and the Collateral Agent and the other Secured Creditors, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Article II. Each Guarantor waives, to the maximum extent permitted by applicable law, diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon any of the Borrower or any of the other Credit Parties with respect to any of the Obligations. Each Guarantor understands and agrees agrees, to the extent permitted by law, that the guarantee guaranty contained in this ARTICLE Article II is, and shall be construed as, as a continuing, completed, absolute and unconditional guarantee guaranty of payment, payment and each not of collection. Each Guarantor hereby waives waives, to the maximum extent permitted by applicable law, any defense and all defenses that it may have arising out of a surety or guarantor in connection with any and all of the following: (a) the validity or enforceability of this Agreement, the Credit Agreement or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed DocumentSecured Debt Agreements, any of the Borrower Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by the Collateral Agent or any Guaranteed other Secured Creditor;
, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which that may at any time be available to or be asserted by any Borrower against the Collateral Agent or any other Secured Creditor, (c) any change in the time, place, manner or place of payment or any amendment, waiver or increase in any of the Obligations in accordance with the terms of the documentation evidencing the same, (d) any exchange, taking, or release of Collateral, (e) any change in the structure or existence of any of the Borrower or any of the other Credit Parties (except in connection with any release permitted by Section 7.13 hereof or any other liquidation, merger or dissolution permitted by the Credit Agreement), (f) any application of Collateral to any of the Obligations, (g) any law, regulation or order of any jurisdiction, or any other event, affecting any term of any Obligation or the rights of the Collateral Agent or any other Secured Creditor with respect thereto, including, without limitation: (i) the application of any such law, regulation, decree or order, including any prior approval, which would prevent the exchange of any currency (other than Dollars) for Dollars or the remittance of funds outside of such jurisdiction or the unavailability of Dollars in any legal exchange market in such jurisdiction in accordance with normal commercial practice, (ii) a declaration of banking moratorium or any suspension of payments by banks in such jurisdiction or the imposition by such jurisdiction or any Governmental Authority thereof of any moratorium on, the required rescheduling or restructuring of, or required approval of payments on, any indebtedness in such jurisdiction, (iii) any expropriation, confiscation, nationalization or requisition by such country or any Governmental Authority that directly or indirectly deprives the Borrower or any other Person against Credit Party of any Guaranteed Creditor;
(iii) the insolvencyassets or their use, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower ability to operate its business or any other Guarantor or any other Person at any time liable for the payment of all or a material part of the Obligations, including any discharge ofthereof, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease war (whether or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or powernot declared), structure insurrection, revolution, hostile act, civil strife or ownership of any Obligor similar events occurring in such jurisdiction which has the same effect as the events described in clause (i), (ii) or (iii) above (in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into cases contemplated in clauses (i) through (iv) above, to the extent occurring or existing on or at any time after the date of this Agreement in reliance onAgreement), or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixh) any other circumstance or act whatsoever, including any action or omission whatsoever (other than payment in full in cash of the type described in Section 2.04 Obligations (other than inchoate indemnity obligations) guaranteed by it hereunder) (with or without notice to or knowledge of the Borrower or such Guarantor), which any other Credit Party) that constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower or any other Credit Party for the Borrower its Obligations, or of such Guarantor under the guarantee guaranty contained in this ARTICLE Article II, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, the Collateral Agent or any Guaranteed other Secured Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee guaranty for the Borrower Obligations guaranteed by such Guarantor hereunder or any right of offset with respect thereto, and any failure by the Collateral Agent or any Guaranteed other Secured Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee guaranty or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Collateral Agent or any Guaranteed other Secured Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Samples: Guaranty and Collateral Agreement (WESTMORELAND COAL Co)
Guaranty Absolute and Unconditional. (a) Each The obligations of the Guarantor understands under this Article VI shall remain in full force and agrees that the guarantee contained in this ARTICLE II iseffect without regard to, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged affected or otherwise affected as a result of impaired by any of the following, any of which may be taken without the consent of, or notice to, the Guarantor:
(ia) any exercise or non-exercise by any Credit Party of any right or privilege under the Loan Documents;
(b) any extension (including without limitation extensions of time for payment), renewal, amendment, restructuring or restatement of, or any acceptance of late or partial payments under, or increase in the principal amount of Debt under, or other modification of terms under, the Loan Documents;
(c) any bankruptcy, insolvency, reorganization, dissolution, liquidation or similar proceeding relating to AGR or any Affiliate of AGR;
(d) the existence of any facts or circumstances that cause (or result in) any of the representations or warranties of any Loan Party under the Loan Documents to be inaccurate;
(e) any merger, consolidation, restructuring or termination of the corporate existence of AGR or the Guarantor; or
(f) the illegality, invalidity or unenforceability of any of all or any part of the Guaranteed DocumentObligations. This Article VI shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Borrower Guaranteed Obligations is rescinded or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held must otherwise be returned by any Guaranteed Creditor;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Credit Party or any other Person against any Guaranteed Creditor;
(iii) upon the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power reorganization of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, AGR or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitutionotherwise, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted all as security for the repayment of the Obligations shall though such payment had not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE II, in bankruptcy or in any other instancebeen made.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE Article II is, and shall be construed as, a continuing, completedcomplete, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations Obligations hereunder shall not be discharged or otherwise affected as a result of of, any of the following:
(i) the invalidity or unenforceability of any Guaranteed Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy bankruptcy, arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation Obligations (or any part of them thereof or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor; provided that upon any such sale, lease or transfer, such assets shall be released in accordance with Section 8.13 of the Collateral Agreement;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and or any ObligorGuarantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect on the Obligations or any part of them thereof from any ObligorGuarantor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its the Borrower’s estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor or any other Guarantor under the guarantee contained in this ARTICLE Article II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person liable on the Obligations or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor against any Guarantor. For the purposes hereof hereof, “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Guaranty Absolute and Unconditional. The obligations of the Guarantor hereunder are absolute, present, irrevocable and unconditional and shall remain in full force and effect until the Company shall have fully discharged the Obligations in accordance with their respective terms, and except as provided in Section 3.4 hereof, shall not be subject to any counterclaim, set-off, deduction or defense (aother than full and strict compliance with, or release, discharge or satisfaction of, such Obligations) Each Guarantor understands and agrees based on any claim that the guarantee contained in this ARTICLE II isGuarantor may have against the Company, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor the City or any other obligor on person. Without limiting the foregoing, the obligations of the Guarantor hereunder shall not be released, discharged or in any obligations arising in connection way modified by reason of any of the following (whether with or without notice to, knowledge by or further consent of the Guarantor):
(A) the extension or renewal of this Guaranty or the Phase III Site Lease up to the specified Term;
(B) any exercise or failure, omission or delay by the City in the exercise of any right, power or remedy conferred on the City with respect to this Guaranty or the Phase III Site Lease except to the extent such failure, omission or delay gives rise to an applicable statute of limitations defense with respect to a specific claim;
(C) any permitted transfer or assignment of rights or obligations under the Phase III Site Lease or under any other Transaction Agreement by any party thereto, or any permitted assignment, conveyance or other transfer of any of their respective interests in the Phase III Cogeneration Facility or in, to or under any of the Transaction Agreements;
(D) any permitted assignment for the purpose of creating a security interest or mortgage of all or any part of the respective interests of the City or any other person in any Transaction Agreement or in the Phase III Cogeneration Facility;
(E) any renewal, amendment, change or modification in respect of any of the following Obligations or terms or conditions of any Transaction Agreement;
(F) any failure of title with respect to all or any part of the respective interests of any person in the Phase III Cogeneration Facility Site or the Phase III Cogeneration Facility;
(G) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshalling of assets and hereby agrees that its obligations hereunder liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, moratorium, arrangement, composition with creditors or readjustment of, or other similar proceedings against the Company or the Guarantor, or any of the property of either of them, or any allegation or contest of the validity of this Guaranty or any other Transaction Agreement in any such proceeding (it is specifically understood, consented and agreed to that, to the extent permitted by law, this Guaranty shall remain and continue in full force and effect and shall be enforceable against the Guarantor to the same extent and with the same force and effect as if any such proceeding had not be discharged been instituted and as if no rejection, stay, termination, assumption or otherwise affected modification has occurred as a result thereof, it being the intent and purpose of this Guaranty that the Guarantor shall and does hereby waive all rights and benefits which might accrue to it by reason of any such proceeding);
(H) except as permitted by Sections 4.1 or 4.2 hereof, any sale or other transfer by the Guarantor or any Affiliate of any of the following:
(i) the invalidity capital stock or unenforceability of any Guaranteed Document, any other interest of the Borrower Obligations Guarantor or any other collateral security therefor Affiliate in the Company now or guarantee hereafter owned, directly or right indirectly, by the Guarantor or any Affiliate, or any change in composition of offset with respect thereto at any time or from time to time held by any Guaranteed Creditorthe interests in the Company;
(iiI) any defense, set-off failure on the part of the Company for any reason to perform or counterclaim (other than a defense of payment or performance) which may at comply with any time be available to or be asserted by agreement with the Borrower or any other Person against any Guaranteed CreditorGuarantor;
(iiiJ) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of failure on the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including City to provide any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or notice to the Guarantor which is not required to be given to the Guarantor pursuant to this Guaranty and to the Company as a result condition to the enforcement of such proceedingObligations pursuant to the Phase III Site Lease;
(ivK) subject to Section 3.4 below, any failure of any party to the Transaction Agreements to mitigate damages resulting from any default by the Company or the Guarantor under any Transaction Agreement;
(L) the merger or consolidation of any party to the Transaction Agreements into or with any other person, or any sale, lease lease, transfer, abandonment or transfer other disposition of any or all of the assets property of any of the Borrower or foregoing to any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantorperson;
(vM) any change in the corporate existence (including its constitution, laws, rules, regulations legal disability or power), structure or ownership incapacity of any Obligor or in party to the relationship between the Borrower and any Obligor;Transaction Agreements; or
(viN) the fact that entering into any Collateral Transaction Agreement by the Company or Lien contemplated the Guarantor was invalid or intended to be given, created or granted as security for the repayment in excess of the Obligations shall powers of such party. Should any money due or owing under this Guaranty not be properly perfected or created, or shall prove recoverable from the Guarantor due to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
matters specified in subparagraphs (A) any Guaranteed Creditor’s electionthrough (N) above, then, in any proceeding instituted under chapter 11 such case, such money, together with all additional sums due hereunder, shall nevertheless be recoverable from the Guarantor as though the Guarantor were principal obligor in place of the Bankruptcy Code, Company pursuant to the terms of the application Phase III Site Lease and not merely a guarantor and shall be paid by the Guarantor forthwith subject to the terms of Section 1111(b)(2) this Guaranty. Notwithstanding anything to the contrary expressed in this Guaranty, nothing in this Guaranty shall be deemed to amend, modify, clarify, expand or reduce the Company's rights, benefits, duties or obligations under the Phase III Site Lease. To the extent that any of the Bankruptcy Code; matters specified in subparagraphs (BA) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; through (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or and (GH) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.through
Appears in 1 contract
Samples: Well Installation Agreement
Guaranty Absolute and Unconditional. (a) Each Guarantor understands OCA waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Agent or any Lender upon this ARTICLE II isAgreement or acceptance of this Agreement; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Agreement; and all dealings between OCA and the other Borrowers, on the one hand, and the Agent and the Lenders, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Agreement. OCA waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon OCA and the other Borrowers with respect to the Obligations, and without limitation of the foregoing, specifically waives the benefits of Sections 26-7 through 26-9, inclusive, of the General Statutes of North Carolina, as amended from time to time. This ARTICLE XI shall be construed as, as a continuing, completed, absolute and unconditional guarantee guaranty of paymentpayment without regard to (a) the validity, and each Guarantor hereby waives any defense regularity or enforceability of a surety or guarantor or this Agreement, any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Credit Document, any of the Borrower Obligations or any other collateral Collateral or other security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Agent or any Guaranteed Creditor;
Lender, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which that may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for Borrowers against the Obligations;
(vii) the absence of any attempt to collect the Obligations Agent or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possessionLender, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower OCA or such Guarantor), which any other Borrower) that constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Borrowers for the Borrower Obligations, or of such Guarantor OCA under the guarantee contained in this ARTICLE IIXI, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against OCA, the Agent and any Guarantor, any Guaranteed Creditor Lender may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Borrowers or any other Person or against any collateral Collateral or other security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by the Agent or any Guaranteed Creditor to make any such demand, Lender to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrowers or any such other Person or to realize upon any such collateral Collateral or other security or guarantee or to exercise any such right of offset, or any release of any of the Borrower, any other Guarantor Borrowers or any such other Person or of any such collateral Collateral or other security, guarantee or right of offset, shall not relieve any Guarantor OCA of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Agent or any Guaranteed Creditor Lender against OCA. This ARTICLE XI shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon OCA and its successors and assigns, and shall inure to the benefit of the Agent and the Lenders, and their respective successors, indorsees, transferees and assigns, until all the Obligations and the obligations of OCA under this Agreement shall have been satisfied by payment in full, all Letters of Credit shall have expired or terminated, and the Commitments shall have been terminated, notwithstanding that from time to time during the term of this Agreement the Borrowers may be free from any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingsObligations.
Appears in 1 contract
Samples: Credit Agreement (Orthodontic Centers of America Inc /De/)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE Article II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations (other than a defense of payment or performance) arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of of, any of the following:
(i) the invalidity or unenforceability of any Guaranteed Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor Grantor waives any and all notice of the creation, renewal, extension or accrual of any of the Secured Obligations and notice of or proof of reliance by the Collateral Agent upon the guaranty contained in this Article VI or acceptance of the guaranty contained in this Article VI; the Secured Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended, modified or waived, in reliance upon the guaranty contained in this Article VI and the grant of the security interests pursuant to Section 3.1; and all dealings between the Debtor and any of the Grantors, on the one hand, and the Collateral Agent, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Article VI and the grant of the security interests pursuant to Section
3.1. Each Grantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Debtor or any of the Grantors with respect to the Secured Obligations. Each Grantor understands and agrees that the guarantee guaranty contained in this ARTICLE II isArticle VI and the grant of the security interests pursuant to Section 3.1 shall be, and shall be construed asto be, a continuing, completed, absolute and unconditional guarantee guaranty of paymentpayment and performance without regard to (a) the validity or enforceability of the Purchase Money Note Guaranty, and each Guarantor hereby waives any defense of a surety or guarantor the Purchase Money Note or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Ancillary Document, any of the Borrower Secured Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Collateral Agent, for the benefit of the Secured Parties, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Debtor or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s electionAgent, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Samples: Reimbursement and Security Agreement
Guaranty Absolute and Unconditional. (a) Each The Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice or proof of reliance by Satellite upon this Guaranty or acceptance of this Guaranty; each Obligation shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between the Company and/or the Guarantor, on the one hand, and Satellite, on the other hand, shall be conclusively presumed to have been consummated in reliance upon this Guaranty. The Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee Guaranty of payment, payment and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
performance without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Document(1) the Purchase Agreement, the Note or any of the Borrower Obligations other Transaction Documents or any document, instrument or agreement made, delivered or given in connection with the Purchase Agreement, the Note or any other Transaction Document, (2) any Lien securing the Obligations, (3) any of the collateral security therefor for, or guarantee any Guaranty of, the Obligations, or (4) any right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Obligations, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which that may at any time be available to to, or be asserted by by, the Borrower Company against Satellite, or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance whatsoever (including, without limitation, insolvency or act whatsoever, including any action or omission bankruptcy of the type described in Section 2.04 Company or any other Person) that constitutes (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, ) an equitable or legal discharge of the Borrower for Obligations or the Borrower Obligations, or obligations and liabilities of such the Guarantor under this Guaranty, regardless of whether the guarantee contained in this ARTICLE II, in bankruptcy Guarantor has notice or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right knowledge of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingscircumstance.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives waives, to the extent permitted by applicable law, any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other the Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s 's election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s 's claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor against any Guarantor. For the purposes hereof “"demand” " shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Samples: Guaranty and Collateral Agreement (Global Geophysical Services Inc)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of of, any of the following:
(i) the invalidity or unenforceability of any Guaranteed Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the any Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the any Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the any Borrower or any other Guarantor, or any changes in the shareholders of the any Borrower or the Guarantor; provided that upon any other Guarantor;such sale, lease or transfer, such assets shall be released in accordance with Section 8.12 of the Collateral Agreement.
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any ObligorGuarantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any ObligorGuarantor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the BorrowerBorrowers, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the any Borrower or its any Borrower’s estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower Borrowers or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Borrowers for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the any Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the any Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the any Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
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Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor Guarantor or in the relationship between the Borrower and any ObligorGuarantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any ObligorGuarantor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
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Guaranty Absolute and Unconditional. (a) Each Guarantor waives, to the maximum extent permitted by Requirements of Law, any and all notice of or proof of reliance by any Secured Party upon the guaranty contained in this Section 2 or acceptance of the guaranty contained in this Section 2; the Secured Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guaranty contained in this Section 2; and all dealings between any of the Borrowers and any of the Guarantors, on the one hand, and the Administrative Agent and the other Secured Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Section 2. Each Guarantor understands and agrees agrees, to the extent permitted by applicable Requirements of Law, that the guarantee guaranty contained in this ARTICLE II is, and Section 2 shall be construed as, as a continuing, completedabsolute, absolute irrevocable, independent and unconditional guarantee guaranty of payment, payment when due and not collectability. Each Guarantor agrees the guaranty contained in this Section 2 is a primary obligation of each Guarantor and not merely a contract of surety. Each Guarantor hereby waives waives, to the maximum extent permitted by Requirements of Law, any defense and all defenses (other than any suit for breach of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect contractual provision of any of the following Loan Documents) that it may have arising out of or in connection with any and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any all of the following:
: (i) the invalidity or unenforceability of any Guaranteed Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence time, place, manner or place of payment, amendment, waiver or increase in the Secured Obligations, (including its constitutionii) any exchange, lawstaking, rulesor release of Collateral, regulations or power), (iii) any change in the structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value existence of any of the Borrowers, (iv) any application of Collateral for to any of the Obligations;
(vii) the absence of any attempt to collect the Secured Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixv) any other circumstance or act whatsoever, including any action or omission whatsoever (other than indefeasible payment in full of the type described in Section 2.04 Secured Obligations guaranteed by it hereunder) (with or without notice to or knowledge of any of the Borrower Borrowers or such Guarantor), which ) that constitutes, or might be construed to constitute, an equitable or legal discharge of any of the Borrower Borrowers for the Borrower Secured Obligations, or of such Guarantor under the guarantee guaranty contained in this ARTICLE IISection 2, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor of the Secured Parties may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against any of the BorrowerBorrowers, any other Guarantor or any other Person or against any collateral security or guarantee guaranty for the Borrower Secured Obligations guaranteed by such Guarantor hereunder or any right of offset with respect thereto, and any failure by any Guaranteed Creditor of the Secured Parties to make any such demand, to pursue such other rights or remedies or to collect any payments from any of the BorrowerBorrowers, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the any Borrower, any other Guarantor or any other Person or any such collateral security, guarantee guaranty or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor Secured Party against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
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