Guaranty Provisions. (a) In consideration of loans, advances or disbursements heretofore or hereafter granted by CoBank to the Borrowers pursuant to the CoBank Loan Agreement or otherwise and for other good and valuable consideration, the adequacy, sufficiency and receipt of which are hereby acknowledged, Guarantor hereby absolutely, unconditionally, irrevocably, completely and immediately guarantees the prompt payment of, when due, whether by acceleration or Continuing Guaranty/Knology Broadband, Inc. Loan No. ML0883T1 otherwise, and the prompt payment and performance of the CoBank Loan Agreement Obligations, subject to the provisions set forth herein. The liability of Guarantor hereunder shall not be reduced as a result of amounts collected pursuant to any other guaranty, but shall be determined with reference to the amount of CoBank Loan Agreement Obligations prior to collection from any party other than the Borrowers; (b) Subject to the provisions set forth herein, Guarantor further agrees to pay to CoBank, upon demand, (i) all losses and reasonable costs and expenses, including, without limitation, reasonable attorneys' fees and expenses, incurred in attempting to cause the CoBank Loan Agreement Obligations to be paid, performed or otherwise satisfied or in attempting to protect or preserve any property, personal or real, securing the CoBank Loan Agreement Obligations and (ii) all losses and reasonable costs and expenses, including, without limitation, reasonable attorneys' fees and expenses, incurred in enforcing or endeavoring to enforce this Guaranty and any other CoBank Loan Document to which Guarantor is a party or in attempting to protect or preserve property pledged under any CoBank Loan Document to which Guarantor is a party; (c) Subject to the provisions set forth herein, Guarantor expressly guarantees, within its maximum liability hereunder, any sum or sums which become due and owing to CoBank as a result of any order of a bankruptcy court which requires CoBank to turn over moneys paid by the Borrowers, Guarantor or any other person to CoBank on account of the CoBank Loan Agreement Obligations; (d) Guarantor assents to all terms and agreements heretofore or hereafter made by the Borrowers, any of their subsidiaries or any other guarantor of the Borrowers with CoBank; (e) Guarantor hereby consents to the following and agrees that its liability will not be affected or impaired by (i) the exchange, release or surrender of any collateral to the Borrowers or any other person, including any other guarantor, pledgor or grantor, or the waiver, release or subordination of any security interest, in whole or in part; (ii) the waiver or delay in the exercise of any of CoBank's rights or remedies against the Borrowers or any other person, including any other guarantor; (iii) the release of the Borrowers or any other person, including any other person guaranteeing any portion of the CoBank Loan Agreement Obligations; (iv) the renewal, extension or modification of the terms of any of the CoBank Loan Agreement Obligations or any instrument or agreement evidencing the same; (f) Guarantor waives acceptance hereof, notice of acceptance hereof, and notice of acceleration of and intention to accelerate the CoBank Loan Agreement Obligations, and waives presentment, demand, protest, notice of dishonor, notice of default, notice of nonpayment or protest in relation to any instrument evidencing any of the CoBank Loan Agreement Obligations, and any other demands and notices required by law except as such waiver may be expressly prohibited by law; (g) This is a guaranty of payment and performance and not of collection. Subject to the provisions set forth herein, the liability of Guarantor under this Guaranty shall be absolute, unconditional, direct, complete and immediate and shall not be contingent upon the pursuit of Continuing Guaranty/Knology Broadband, Inc. Loan No. ML0883T1 any remedies against the Borrowers or any other guarantor or person, nor against any security or lien available to CoBank, its successors, successors-in-title, endorsees or assigns. Guarantor waives any right to require that an action be brought against the Borrowers or any other person or to require that resort be had to any security. In the event of a default under the CoBank Loan Documents, or any of them, CoBank shall have the right to enforce its rights, powers and remedies under any of the CoBank Loan Documents, in any order, and all rights, powers and remedies available to CoBank in such event shall be nonexclusive and cumulative of all other rights, powers and remedies provided thereunder (including, without limitation, under the Companion Guaranty) or hereunder or by law or in equity. Accordingly, Guarantor hereby authorizes and empowers CoBank upon acceleration of the maturity of the Note or any other CoBank Loan Agreement Obligation, at its sole discretion, and without notice to Guarantor, to exercise any right or remedy which CoBank may have or any right or remedy hereinafter granted which CoBank may have as to any security, subject to the provisions set forth herein. Guarantor expressly waives any right to require any action on the part of CoBank to proceed to collect amounts due under the Note or any other CoBank Loan Agreement Obligation; (h) Until the CoBank Loan Agreement Obligations are paid in full, Guarantor hereby subordinates any and all indebtedness of any Borrower now or hereafter owed to Guarantor to all CoBank Loan Agreement Obligations of the Borrowers to CoBank, and agrees with CoBank that, from and after the occurrence of a default or event of default under any of the CoBank Loan Documents and for so long as such default or event of default exists, Guarantor shall not demand or accept any payment of principal or interest from the Borrowers, shall not claim any offset or other reduction of Guarantor's liability hereunder because of any such indebtedness and shall not take any action to obtain any of the security for the CoBank Loan Agreement Obligations; provided, however, that, if CoBank so requests, such indebtedness shall be collected, enforced and received by Guarantor as trustee for CoBank and be paid over to CoBank on account of the CoBank Loan Agreement Obligations of the Borrowers to CoBank, but without reducing or affecting in any manner the liability of Guarantor under the other provisions of this Guaranty; (i) Guarantor hereby authorizes CoBank, without notice to Guarantor, to apply all payments and credits received from the Borrowers or from any guarantor or realized from any security in such manner and in such priority as CoBank in its sole judgment shall see fit to the CoBank Loan Agreement Obligations which are the subject of this Guaranty; (j) The liability of Guarantor under this Guaranty shall not in any manner be affected by reason of any action taken or not taken by CoBank, which action or inaction is consented and agreed to by Guarantor, nor by the partial or complete unenforceability or invalidity of any other guaranty (including, without limitation, under the Companion Guaranty) or surety agreement, pledge, assignment, or other security for any of the CoBank Loan Agreement Obligations. No delay in making demand on Guarantor for satisfaction of its liability hereunder shall prejudice CoBank's right to enforce such satisfaction. All of CoBank's rights and remedies shall be cumulative and any failure of CoBank to exercise any right hereunder shall not be construed as a waiver of the right to exercise the same or any other right at any time, and from time to time, thereafter; Continuing Guaranty/Knology Broadband, Inc. Loan No. ML0883T1 (k) This Guaranty shall be a continuing one and shall be binding upon Guarantor regardless of how long before or after the date hereof the CoBank Loan Agreement Obligations are incurred. This Guaranty shall remain in full force and effect until a written instrument of termination shall be executed and delivered by a duly authorized officer of CoBank. CoBank will only be obligated to execute such an instrument of termination if: (i) all CoBank Loan Agreement Obligations have been paid in full and (ii) CoBank has no further commitment or obligation to extend credit to the Borrowers. If so terminated, this Guaranty and Guarantor's obligations hereunder shall be automatically reinstated if at any time payment in whole or in part of any of the CoBank Loan Agreement Obligations is rescinded or restored to the Borrowers or other payor, or must be paid to any other person, upon the insolvency, bankruptcy, liquidation, dissolution or reorganization of the Borrowers or other payor, all as though such payment has not been made; and (l) Until the CoBank Loan Agreement Obligations are paid finally and in full, or this Guaranty is released as provided herein, Guarantor hereby irrevocably waives any and all rights it may have to enforce any of CoBank's rights or remedies or participate in any security now or hereafter held by CoBank, and any and all such other rights of subrogation, reimbursement, contribution or indemnification against the Borrowers or any other person having any manner of liability for the Borrowers' obligations to CoBank, whether or not arising hereunder, by agreement, at law or in equity.
Appears in 2 contracts
Samples: Continuing Guaranty (Knology Inc), Continuing Guaranty (Knology Inc)
Guaranty Provisions. (a) In consideration of loans, advances or disbursements heretofore or hereafter granted by CoBank the Lender to the Borrowers Borrower pursuant to the CoBank Master Loan Agreement Agreement, including any existing or future Supplements thereto, or otherwise and for other good and valuable consideration, the adequacy, sufficiency and receipt of which are hereby acknowledged, Guarantor hereby absolutely, unconditionally, irrevocablyirrevocably (except as otherwise expressly provided in Subsection 3(k) below), completely and immediately guarantees the prompt payment of, when due, whether by acceleration or Continuing Guaranty/Knology Broadband, Inc. Loan No. ML0883T1 otherwise, and the prompt payment and performance of the CoBank Loan Agreement Obligations, subject to the provisions set forth herein. The liability of Guarantor hereunder shall not be reduced as a result of amounts collected pursuant to any other guaranty, but shall be determined with reference to the amount of CoBank Loan Agreement Obligations prior to collection from any party other than the Borrowers;
(b) Subject to the provisions set forth herein, Guarantor further agrees to pay to CoBankthe Lender, upon demand, (i) all losses and reasonable costs and expenses, including, without limitation, reasonable attorneys' ’ fees and expenses, incurred in attempting to cause the CoBank Loan Agreement Obligations to be paid, performed or otherwise satisfied or in attempting to protect or preserve any property, personal or real, securing the CoBank Loan Agreement Obligations and (ii) all losses and reasonable costs and expenses, including, without limitation, reasonable attorneys' ’ fees and expenses, incurred in enforcing or endeavoring to enforce this Guaranty and any other CoBank Loan Document to which Guarantor is a party or in attempting to protect or preserve property pledged under any CoBank Loan Document to which Guarantor is a party;
(c) Subject to the provisions set forth herein, Guarantor expressly guarantees, within its maximum liability hereunder, guarantees any sum or sums which become due and owing to CoBank the Lender as a result of any order of a bankruptcy court which requires CoBank the Lender to turn over moneys paid by the BorrowersBorrower, Guarantor or any other person to CoBank the Lender on account of the CoBank Loan Agreement Obligations. Guarantor agrees that this Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment by the Borrower or any other person to the Lender on account of the Obligations is rescinded or must otherwise be returned or restored upon the insolvency or bankruptcy of the Borrower or any other obligor, guarantor, endorser or surety of the Obligations, all as though such payment had not been made;
(d) Guarantor assents to all terms and agreements heretofore or hereafter made by the Borrowers, any of their subsidiaries Borrower or any other guarantor of the Borrowers Borrower with CoBankthe Lender;
(e) Guarantor hereby consents to the following and agrees that its liability will not be affected or impaired by (i) the exchange, release or surrender of any collateral to the Borrowers Borrower or any other person, including any other guarantor, pledgor or grantor, or the waiver, release or subordination of any security interest, in whole or in part; (ii) the waiver or delay in the exercise of any of CoBank's the Lender’s rights or remedies against the Borrowers Borrower or any other person, including any other guarantor; (iii) the release of the Borrowers Borrower or any other person, including any other person guaranteeing any portion of the CoBank Loan Agreement Obligations; (iv) the renewal, extension or modification of the terms of any of the CoBank Loan Agreement Obligations or any instrument or agreement evidencing the same, including, without limitation, an increase in the principal amount of the Obligations; and (v) the acceptance by the Lender of other guaranties;
(f) Guarantor waives acceptance hereof, notice of acceptance hereof, and notice of acceleration of and intention to accelerate the CoBank Loan Agreement Obligations, and waives presentment, demand, protest, notice of dishonor, notice of default, notice of nonpayment or protest in relation to any instrument evidencing any of the CoBank Loan Agreement Obligations, and any other demands and notices required by law except as such waiver may be expressly prohibited by law;
(g) This is a guaranty of payment and performance and not of collection. Subject to the provisions set forth herein, the The liability of Guarantor under this Guaranty shall be absolute, unconditional, direct, complete and immediate and shall not be contingent upon the pursuit of Continuing Guaranty/Knology Broadband, Inc. Loan No. ML0883T1 any remedies against the Borrowers Borrower or any other guarantor or person, nor against any security or lien available to CoBankthe Lender, its successors, successors-in-title, endorsees or assigns. Guarantor waives any right to require that an action be brought against the Borrowers Borrower or any other person or to require that resort be had to any security. In the event of a default under the CoBank Loan Documents, or any of them, CoBank the Lender shall have the right to enforce its rights, powers and remedies under any of the CoBank Loan Documents, in any order, and all rights, powers and remedies available to CoBank the Lender in such event shall be nonexclusive and cumulative of all other rights, powers and remedies provided thereunder (including, without limitation, under the Companion Guaranty) or hereunder or by law or in equity. Accordingly, Guarantor hereby authorizes and empowers CoBank the Lender upon acceleration of the or maturity of the Note Obligations or any other CoBank Loan Agreement Obligation, at its sole discretion, and without notice to Guarantor, to exercise any right or remedy which CoBank the Lender may have or any right or remedy hereinafter granted which CoBank the Lender may have as to any security, subject to the provisions set forth herein. Guarantor expressly waives any right to require any action on the part of CoBank the Lender to proceed to collect amounts due under the Note Master Loan Agreement or any other CoBank Loan Agreement Obligation;Documents.
(h) Until the CoBank Loan Agreement Obligations are paid in full, Guarantor hereby subordinates any and all indebtedness of any the Borrower now or hereafter owed to Guarantor to all CoBank Loan Agreement Obligations obligations of the Borrowers Borrower to CoBankthe Lender, and agrees with CoBank the Lender that, from and after the occurrence of a default or event of default under any of the CoBank Loan Documents and for so long as such default or event of default exists, Guarantor shall not demand or accept any payment of principal or interest from any of the BorrowersBorrower, shall not claim any offset or other reduction of Guarantor's ’s liability hereunder because of any such indebtedness and shall not take any action to obtain any of the security for the CoBank Loan Agreement Obligations; provided, however, that, if CoBank the Lender so requests, such indebtedness shall be collected, enforced and received by Guarantor as trustee for CoBank the Lender and be paid over to CoBank the Lender on account of the CoBank Loan Agreement Obligations of the Borrowers Borrower to CoBankthe Lender, but without reducing or affecting in any manner the liability of Guarantor under the other provisions of this Guaranty;
(i) Guarantor hereby authorizes CoBankthe Lender, without notice to Guarantor, to apply all payments and credits received from the Borrowers Borrower or from any guarantor or realized from any security in such manner and in such priority as CoBank the Lender in its sole judgment shall see fit to the CoBank Loan Agreement Obligations which are the subject of this Guaranty;
(j) The liability of Guarantor under this Guaranty shall not in any manner be affected by reason of any action taken or not taken by CoBankthe Lender, which action or inaction is consented and agreed to by Guarantor, nor by the partial or complete unenforceability or invalidity of any other guaranty (including, without limitation, under the Companion Guaranty) or surety agreement, pledge, assignment, or other security for any of the CoBank Loan Agreement Obligations. No delay in making demand on Guarantor for satisfaction of its liability hereunder shall prejudice CoBank's the Lender’s right to enforce such satisfaction. All of CoBank's the Lender’s rights and remedies shall be cumulative and any failure of CoBank the Lender to exercise any right hereunder shall not be construed as a waiver of the right to exercise the same or any other right at any time, and from time to time, thereafter; Continuing Guaranty/Knology Broadband, Inc. Loan No. ML0883T1;
(k) This Guaranty shall be a continuing one and shall be binding upon Guarantor regardless of how long before or after the date hereof the CoBank Obligations are incurred until this Guaranty is terminated as provided in this Guaranty or is revoked by Guarantor prospectively as to future transactions, by written notice actually received by the Lender, and such revocation shall not be effective as to any indebtedness existing or committed for under the Master Loan Agreement Obligations or the other Loan Documents at the time of actual receipt of such notice by the Lender, or as to any renewals, extensions or refinancings thereof. Guarantor agrees to rely exclusively on the right to revoke this Guaranty prospectively as to future transactions, in accordance with this Subsection 3(k), if at any time, in the opinion of the directors or officers of Guarantor, the benefits then being received by Guarantor in connection with this Guaranty are incurrednot sufficient to warrant the continuance of this Guaranty as to future indebtedness. This Accordingly, so long as this Guaranty shall remain is not revoked prospectively in full force and effect until accordance with this Subsection 3(k), the Lender may rely conclusively on a written instrument of termination shall continuing warranty, hereby made, that Guarantor continues to be executed and delivered benefited by a duly authorized officer of CoBank. CoBank will only be obligated to execute such an instrument of termination if: (i) all CoBank Loan Agreement Obligations have been paid in full and (ii) CoBank has no further commitment or obligation to extend credit to the Borrowers. If so terminated, this Guaranty and Guarantor's obligations hereunder the Lender and the Lender shall have no duty to inquire into or confirm that the receipt of any such benefits, and this Guaranty shall be automatically reinstated if at any time payment in whole effective and enforceable by the Lender without regard to the receipt, nature or in part value of any of the CoBank Loan Agreement Obligations is rescinded or restored to the Borrowers or other payor, or must be paid to any other person, upon the insolvency, bankruptcy, liquidation, dissolution or reorganization of the Borrowers or other payor, all as though such payment has not been madebenefits; and
(l) Until the CoBank Loan Agreement Obligations are paid finally and in full, or this Guaranty is released as provided herein, Guarantor hereby irrevocably waives any and all rights it may have to enforce any of CoBank's the Lender’s rights or remedies or participate in any security now or hereafter held by CoBankthe Lender, and any and all such other rights of subrogation, reimbursement, contribution or indemnification against the Borrowers Borrower , or any other person having any manner of liability for the Borrowers' Borrower’s obligations to CoBankthe Lender, whether or not arising hereunder, by agreement, at law or in equity.
Appears in 2 contracts
Samples: Continuing Guaranty (US BioEnergy CORP), Continuing Guaranty (US BioEnergy CORP)
Guaranty Provisions. (a) In consideration of loans, advances or disbursements heretofore or hereafter granted by CoBank to the Borrowers pursuant to the CoBank Loan Agreement or otherwise and for other good and valuable consideration, the adequacy, sufficiency and receipt of which are hereby acknowledged, Guarantor hereby absolutely, unconditionally, irrevocably, completely and immediately guarantees the prompt payment of, when due, whether by acceleration or Continuing Guaranty/Knology Broadband, Inc. Loan No. ML0883T1 otherwise, and the prompt payment and performance of the CoBank Loan Agreement Obligations, subject to the provisions set forth herein. The liability of Guarantor hereunder shall not be reduced as a result of amounts collected pursuant to any other guaranty, but shall be determined with reference to the amount of CoBank Loan Agreement Obligations prior to collection from any party other than the Borrowers;
(b) Subject to the provisions set forth herein, Guarantor further agrees to pay to CoBank, upon demand, (i) all losses and reasonable costs and expenses, including, without limitation, reasonable attorneys' fees and expenses, incurred in attempting to cause the CoBank Loan Agreement Obligations to be paid, performed or otherwise satisfied or in attempting to protect or preserve any property, personal or real, securing the CoBank Loan Agreement Obligations and (ii) all losses and reasonable costs and expenses, including, without limitation, reasonable attorneys' fees and expenses, incurred in enforcing or endeavoring to enforce this Guaranty and any other CoBank Loan Document to which Guarantor is a party or in attempting to protect or preserve property pledged under any CoBank Loan Document to which Guarantor is a party;
(c) Subject to the provisions set forth herein, Guarantor expressly guarantees, within its maximum liability hereunder, any sum or sums which become due and owing to CoBank as a result of any order of a bankruptcy court which requires CoBank to turn over moneys paid by the Borrowers, Guarantor or any other person to CoBank on account of the CoBank Loan Agreement Obligations;
(d) Guarantor assents to all terms and agreements heretofore or hereafter made by the Borrowers, any of their subsidiaries or any other guarantor of the Borrowers with CoBank;
(e) Guarantor hereby consents to the following and agrees that its liability will not be affected or impaired by (i) the exchange, release or surrender of any collateral to the Continuing Guaranty/ITC Globe Inc. Loan No. ML0883T1 Borrowers or any other person, including any other guarantor, pledgor or grantor, or the waiver, release or subordination of any security interest, in whole or in part; (ii) the waiver or delay in the exercise of any of CoBank's rights or remedies against the Borrowers or any other person, including any other guarantor; (iii) the release of the Borrowers or any other person, including any other person guaranteeing any portion of the CoBank Loan Agreement Obligations; (iv) the renewal, extension or modification of the terms of any of the CoBank Loan Agreement Obligations or any instrument or agreement evidencing the same;
(f) Guarantor waives acceptance hereof, notice of acceptance hereof, and notice of acceleration of and intention to accelerate the CoBank Loan Agreement Obligations, and waives presentment, demand, protest, notice of dishonor, notice of default, notice of nonpayment or protest in relation to any instrument evidencing any of the CoBank Loan Agreement Obligations, and any other demands and notices required by law except as such waiver may be expressly prohibited by law;
(g) This is a guaranty of payment and performance and not of collection. Subject to the provisions set forth herein, the The liability of Guarantor under this Guaranty shall be absolute, unconditional, direct, complete and immediate and shall not be contingent upon the pursuit of Continuing Guaranty/Knology Broadband, Inc. Loan No. ML0883T1 any remedies against the Borrowers or any other guarantor or person, nor against any security or lien available to CoBank, its successors, successors-in-title, endorsees or assigns. Guarantor waives any right to require that an action be brought against the Borrowers or any other person or to require that resort be had to any security. In the event of a default under the CoBank Loan Documents, or any of them, CoBank shall have the right to enforce its rights, powers and remedies under any of the CoBank Loan Documents, in any order, and all rights, powers and remedies available to CoBank in such event shall be nonexclusive and cumulative of all other rights, powers and remedies provided thereunder (including, without limitation, under the Companion Guaranty) or hereunder or by law or in equity. Accordingly, Guarantor hereby authorizes and empowers CoBank upon acceleration of the maturity of the Note or any other CoBank Loan Agreement Obligation, at its sole discretion, and without notice to Guarantor, to exercise any right or remedy which CoBank may have or any right or remedy hereinafter granted which CoBank may have as to any security, subject to the provisions set forth herein. Guarantor expressly waives any right to require any action on the part of CoBank to proceed to collect amounts due under the Note or any other CoBank Loan Agreement Obligation;
(h) Until the CoBank Loan Agreement Obligations are paid in full, Guarantor hereby subordinates any and all indebtedness of any Borrower now or hereafter owed to Guarantor to all CoBank Loan Agreement Obligations obligations of the Borrowers to CoBank, and agrees with CoBank that, from and after the occurrence of a default or event of default under any of the CoBank Loan Documents and for so long as such default or event of default exists, Guarantor shall not demand or accept any payment of principal or interest from the Borrowers, Borrowers shall not claim any offset or other reduction of Guarantor's liability hereunder because of any such indebtedness and shall not take any action to obtain any of the security for the CoBank Loan Agreement Obligations; provided, however, that, if -------- ------- CoBank so requests, such indebtedness shall be collected, enforced and received by Guarantor as trustee for CoBank and be paid over to CoBank on account of the CoBank Loan Agreement Obligations of the Borrowers to CoBank, but without reducing or affecting in any manner the liability of Guarantor under the other provisions of this Guaranty;
(i) Guarantor hereby authorizes CoBank, without notice to Guarantor, to apply all payments and credits received from the Borrowers or from any guarantor or realized from any Continuing Guaranty/ITC Globe Inc. Loan No. ML0883T1 security in such manner and in such priority as CoBank in its sole judgment shall see fit to the CoBank Loan Agreement Obligations which are the subject of this Guaranty;
(j) The liability of Guarantor under this Guaranty shall not in any manner be affected by reason of any action taken or not taken by CoBank, which action or inaction is consented and agreed to by Guarantor, nor by the partial or complete unenforceability or invalidity of any other guaranty (including, without limitation, under the Companion Guaranty) or surety agreement, pledge, assignment, or other security for any of the CoBank Loan Agreement Obligations. No delay in making demand on Guarantor for satisfaction of its liability hereunder shall prejudice CoBank's right to enforce such satisfaction. All of CoBank's rights and remedies shall be cumulative and any failure of CoBank to exercise any right hereunder shall not be construed as a waiver of the right to exercise the same or any other right at any time, and from time to time, thereafter; Continuing Guaranty/Knology Broadband, Inc. Loan No. ML0883T1;
(k) This Guaranty shall be a continuing one and shall be binding upon Guarantor regardless of how long before or after the date hereof the CoBank Loan Agreement Obligations are incurred. This Guaranty shall remain in full force and effect until a written instrument of termination shall be executed and delivered by a duly authorized officer of CoBank. CoBank will only be obligated to execute such an instrument of termination if: (i) all CoBank Loan Agreement Obligations have been paid in full and (ii) CoBank has no further commitment or obligation to extend credit to the Borrowers. If so terminated, this Guaranty and Guarantor's obligations hereunder shall be automatically reinstated if at any time payment in whole or in part of any of the CoBank Loan Agreement Obligations is rescinded or restored to the Borrowers or other payor, or must be paid to any other person, upon the insolvency, bankruptcy, liquidation, dissolution or reorganization of the Borrowers or other payor, all as though such payment has not been made; and
(l) Until the CoBank Loan Agreement Obligations are paid finally and in full, or this Guaranty is released as provided herein, Guarantor hereby irrevocably waives any and all rights it may have to enforce any of CoBank's rights or remedies or participate in any security now or hereafter held by CoBank, and any and all such other rights of subrogation, reimbursement, contribution or indemnification against the Borrowers or any other person having any manner of liability for the Borrowers' obligations to CoBank, whether or not arising hereunder, by agreement, at law or in equity.
Appears in 1 contract
Samples: Continuing Guaranty (Knology Inc)
Guaranty Provisions. (a) In consideration of loans, advances or disbursements heretofore or hereafter granted by CoBank to the Borrowers pursuant to the CoBank Loan Agreement or otherwise and the accommodations provided for in the Amendment Agreement and for other good and valuable consideration, the adequacy, sufficiency and receipt of which are hereby acknowledged, Guarantor hereby absolutely, unconditionally, irrevocably, completely and immediately guarantees the prompt payment of, when due, whether by acceleration or Continuing Guaranty/Knology Broadband, Inc. Loan No. ML0883T1 otherwise, and the prompt payment and performance of the CoBank Loan Agreement Obligations, subject to the provisions set forth herein. The liability of Guarantor hereunder shall not be reduced as a result of amounts collected pursuant to any other guaranty, but shall be determined with reference to the amount of CoBank Loan Agreement Obligations prior to collection from any party other than the Borrowers;
(b) Subject to the provisions set forth herein, Guarantor further agrees to pay to CoBank, upon demand, (i) all losses and reasonable costs and expenses, including, without limitation, reasonable attorneys' ’ fees and expenses, incurred in attempting to cause the CoBank Loan Agreement Obligations to be paid, performed or otherwise satisfied or in attempting to protect or preserve any property, personal or real, securing the CoBank Loan Agreement Obligations and (ii) all losses and reasonable costs and expenses, including, without limitation, reasonable attorneys' ’ fees and expenses, incurred in enforcing or endeavoring to enforce this Guaranty and any other CoBank Loan Document to which Guarantor is a party or in attempting to protect or preserve property pledged under any CoBank Loan Document to which Guarantor is a party;
(c) Subject to the provisions set forth herein, Guarantor expressly guarantees, within its maximum liability hereunder, any sum or sums which become due and owing to CoBank as a result of any order of a bankruptcy court which requires CoBank to turn over moneys paid by the Borrowers, Guarantor or any other person to CoBank on account of the CoBank Loan Agreement Obligations;
(d) Guarantor assents to all terms and agreements heretofore or hereafter made by the Borrowers, any of their subsidiaries or any other guarantor of the Borrowers with CoBank;
(e) Guarantor hereby consents to the following and agrees that its liability will not be affected or impaired by (i) the exchange, release or surrender of any collateral to the Borrowers or any other person, including any other guarantor, pledgor or grantor, or the waiver, release or subordination of any security interest, in whole or in part; (ii) the waiver or delay in the exercise of any of CoBank's ’s rights or remedies against the Borrowers or any other person, including any other guarantor; (iii) the release of the Borrowers or any other person, including any other person guaranteeing any portion of the CoBank Loan Agreement Obligations; (iv) the renewal, extension or modification of the terms of any of the CoBank Loan Agreement Obligations or any instrument or agreement evidencing the same;
(f) Guarantor waives acceptance hereof, notice of acceptance hereof, and notice of acceleration of and intention to accelerate the CoBank Loan Agreement Obligations, and waives presentment, demand, protest, notice of dishonor, notice of default, notice of nonpayment or protest in relation to any instrument evidencing any of the CoBank Loan Agreement Obligations, and any other demands and notices required by law except as such waiver may be expressly prohibited by law;
(g) This is a guaranty of payment and performance and not of collection. Subject to the provisions set forth herein, the liability of Guarantor under this Guaranty shall be absolute, unconditional, direct, complete and immediate and shall not be contingent upon the pursuit of Continuing Guaranty/Knology Broadband, Inc. Loan No. ML0883T1 any remedies against the Borrowers or any other guarantor or person, nor against any security or lien available to CoBank, its successors, successors-in-title, endorsees or assigns. Guarantor waives any right to require that an action be brought against the Borrowers or any other person or to require that resort be had to any security. In the event of a default under the CoBank Loan Documents, or any of them, CoBank shall have the right to enforce its rights, powers and remedies under any of the CoBank Loan Documents, in any order, and all rights, powers and remedies available to CoBank in such event shall be nonexclusive and cumulative of all other rights, powers and remedies provided thereunder (including, without limitation, under the Companion Guaranty) or hereunder or by law or in equity. Accordingly, Guarantor hereby authorizes and empowers CoBank upon acceleration of the maturity of the Note or any other CoBank Loan Agreement Obligation, at its sole discretion, and without notice to Guarantor, to exercise any right or remedy which CoBank may have or any right or remedy hereinafter granted which CoBank may have as to any security, subject to the provisions set forth herein. Guarantor expressly waives any right to require any action on the part of CoBank to proceed to collect amounts due under the Note or any other CoBank Loan Agreement Obligation;
(h) Until the CoBank Loan Agreement Obligations are paid in full, Guarantor hereby subordinates any and all indebtedness of any Borrower now or hereafter owed to Guarantor to all CoBank Loan Agreement Obligations of the Borrowers to CoBank, and agrees with CoBank that, from and after the occurrence of a default or event of default under any of the CoBank Loan Documents and for so long as such default or event of default exists, Guarantor shall not demand or accept any payment of principal or interest from the Borrowers, shall not claim any offset or other reduction of Guarantor's ’s liability hereunder because of any such indebtedness and shall not take any action to obtain any of the security for the CoBank Loan Agreement Obligations; provided, however, that, if CoBank so requests, such indebtedness shall be collected, enforced and received by Guarantor as trustee for CoBank and be paid over to CoBank on account of the CoBank Loan Agreement Obligations of the Borrowers to CoBank, but without reducing or affecting in any manner the liability of Guarantor under the other provisions of this Guaranty;
(i) Guarantor hereby authorizes CoBank, without notice to Guarantor, to apply all payments and credits received from the Borrowers or from any guarantor or realized from any security in such manner and in such priority as CoBank in its sole judgment shall see fit to the CoBank Loan Agreement Obligations which are the subject of this Guaranty;
(j) The liability of Guarantor under this Guaranty shall not in any manner be affected by reason of any action taken or not taken by CoBank, which action or inaction is consented and agreed to by Guarantor, nor by the partial or complete unenforceability or invalidity of any other guaranty (including, without limitation, under the Companion Guaranty) or surety agreement, pledge, assignment, or other security for any of the CoBank Loan Agreement Obligations. No delay in making demand on Guarantor for satisfaction of its liability hereunder shall prejudice CoBank's ’s right to enforce such satisfaction. All of CoBank's ’s rights and remedies shall be cumulative and any failure of CoBank to exercise any right hereunder shall not be construed as a waiver of the right to exercise the same or any other right at any time, and from time to time, thereafter; Continuing Guaranty/Knology Broadband, Inc. Loan No. ML0883T1;
(k) This Guaranty shall be a continuing one and shall be binding upon Guarantor regardless of how long before or after the date hereof the CoBank Loan Agreement Obligations are incurred. This Guaranty shall remain in full force and effect until a written instrument of termination shall be executed and delivered by a duly authorized officer of CoBank. CoBank will only be obligated to execute such an instrument of termination if: (i) all CoBank Loan Agreement Obligations have been paid in full and (ii) CoBank has no further commitment or obligation to extend credit to the Borrowers. If so terminated, this Guaranty and Guarantor's ’s obligations hereunder shall be automatically reinstated if at any time payment in whole or in part of any of the CoBank Loan Agreement Obligations is rescinded or restored to the Borrowers or other payor, or must be paid to any other person, upon the insolvency, bankruptcy, liquidation, dissolution or reorganization of the Borrowers or other payor, all as though such payment has not been made; and
(l) Until the CoBank Loan Agreement Obligations are paid finally and in full, or this Guaranty is released as provided herein, Guarantor hereby irrevocably waives any and all rights it may have to enforce any of CoBank's ’s rights or remedies or participate in any security now or hereafter held by CoBank, and any and all such other rights of subrogation, reimbursement, contribution or indemnification against the Borrowers or any other person having any manner of liability for the Borrowers' ’ obligations to CoBank, whether or not arising hereunder, by agreement, at law or in equity.
Appears in 1 contract
Samples: Continuing Guaranty (Knology Inc)
Guaranty Provisions. (a) In consideration of loans, advances or disbursements heretofore or hereafter granted by CoBank to the Borrowers pursuant to the CoBank Loan Agreement or otherwise and for other good and valuable consideration, the adequacy, sufficiency and receipt of which are hereby acknowledged, Guarantor hereby absolutely, unconditionally, irrevocably, completely and immediately guarantees the prompt payment of, when due, whether by acceleration or Continuing Guaranty/Knology Broadband, Inc. Loan No. ML0883T1 otherwise, and the prompt payment and performance of the CoBank Loan Agreement Obligations, subject to the provisions set forth herein. The liability of Guarantor hereunder shall not be reduced as a result of amounts collected pursuant to any other guaranty, but shall be determined with reference to the amount of CoBank Loan Agreement Obligations prior to collection from any party other than the Borrowers;
(b) Subject to the provisions set forth herein, Guarantor further agrees to pay to CoBank, upon demand, (i) all losses and reasonable costs and expenses, including, without limitation, reasonable attorneys' fees and expenses, incurred in attempting to cause the CoBank Loan Agreement Obligations to be paid, performed or otherwise satisfied or in attempting to protect or preserve any property, personal or real, securing the CoBank Loan Agreement Obligations and (ii) all losses and reasonable costs and expenses, including, without limitation, reasonable attorneys' fees and expenses, incurred in enforcing or endeavoring to enforce this Guaranty and any other CoBank Loan Document to which Guarantor is a party or in attempting to protect or preserve property pledged under any CoBank Loan Document to which Guarantor is a party;; Continuing Guaranty/Knology of Knoxville Loan No. ML0883T1
(c) Subject to the provisions set forth herein, Guarantor expressly guarantees, within its maximum liability hereunder, any sum or sums which become due and owing to CoBank as a result of any order of a bankruptcy court which requires CoBank to turn over moneys paid by the Borrowers, Guarantor or any other person to CoBank on account of the CoBank Loan Agreement Obligations;
(d) Guarantor assents to all terms and agreements heretofore or hereafter made by the Borrowers, any of their subsidiaries or any other guarantor of the Borrowers with CoBank;
(e) Guarantor hereby consents to the following and agrees that its liability will not be affected or impaired by (i) the exchange, release or surrender of any collateral to the Borrowers or any other person, including any other guarantor, pledgor or grantor, or the waiver, release or subordination of any security interest, in whole or in part; (ii) the waiver or delay in the exercise of any of CoBank's rights or remedies against the Borrowers or any other person, including any other guarantor; (iii) the release of the Borrowers or any other person, including any other person guaranteeing any portion of the CoBank Loan Agreement Obligations; (iv) the renewal, extension or modification of the terms of any of the CoBank Loan Agreement Obligations or any instrument or agreement evidencing the same;
(f) Guarantor waives acceptance hereof, notice of acceptance hereof, and notice of acceleration of and intention to accelerate the CoBank Loan Agreement Obligations, and waives presentment, demand, protest, notice of dishonor, notice of default, notice of nonpayment or protest in relation to any instrument evidencing any of the CoBank Loan Agreement Obligations, and any other demands and notices required by law except as such waiver may be expressly prohibited by law;
(g) This is a guaranty of payment and performance and not of collection. Subject to the provisions set forth herein, the The liability of Guarantor under this Guaranty shall be absolute, unconditional, direct, complete and immediate and shall not be contingent upon the pursuit of Continuing Guaranty/Knology Broadband, Inc. Loan No. ML0883T1 any remedies against the Borrowers or any other guarantor or person, nor against any security or lien available to CoBank, its successors, successors-in-title, endorsees or assigns. Guarantor waives any right to require that an action be brought against the Borrowers or any other person or to require that resort be had to any security. In the event of a default under the CoBank Loan Documents, or any of them, CoBank shall have the right to enforce its rights, powers and remedies under any of the CoBank Loan Documents, in any order, and all rights, powers and remedies available to CoBank in such event shall be nonexclusive and cumulative of all other rights, powers and remedies provided thereunder (including, without limitation, under the Companion Guaranty) or hereunder or by law or in equity. Accordingly, Guarantor hereby authorizes and empowers CoBank upon acceleration of the maturity of the Note or any other CoBank Loan Agreement Obligation, at its sole discretion, and without notice to Guarantor, to exercise any right or remedy which CoBank may have or any right or remedy hereinafter granted which CoBank may have as to any security, subject to the provisions set forth herein. Guarantor expressly waives any right to require any action on the part of CoBank to proceed to collect amounts due under the Note or any other CoBank Loan Agreement Obligation;
(h) Until the CoBank Loan Agreement Obligations are paid in full, Guarantor hereby subordinates any and all indebtedness of any Borrower now or hereafter owed to Guarantor to all CoBank Loan Agreement Obligations obligations of the Borrowers to CoBank, and agrees with CoBank that, from and after the occurrence of a default or event of default under any of the CoBank Loan Documents and for so long as such default or event of Continuing Guaranty/Knology of Knoxville Loan No. ML0883T1 default exists, Guarantor shall not demand or accept any payment of principal or interest from the Borrowers, Borrowers shall not claim any offset or other reduction of Guarantor's liability hereunder because of any such indebtedness and shall not take any action to obtain any of the security for the CoBank Loan Agreement Obligations; provided, however, that, if CoBank so requests, such indebtedness shall be collected, enforced and received by Guarantor as trustee for CoBank and be paid over to CoBank on account of the CoBank Loan Agreement Obligations of the Borrowers to CoBank, but without reducing or affecting in any manner the liability of Guarantor under the other provisions of this Guaranty;
(i) Guarantor hereby authorizes CoBank, without notice to Guarantor, to apply all payments and credits received from the Borrowers or from any guarantor or realized from any security in such manner and in such priority as CoBank in its sole judgment shall see fit to the CoBank Loan Agreement Obligations which are the subject of this Guaranty;
(j) The liability of Guarantor under this Guaranty shall not in any manner be affected by reason of any action taken or not taken by CoBank, which action or inaction is consented and agreed to by Guarantor, nor by the partial or complete unenforceability or invalidity of any other guaranty (including, without limitation, under the Companion Guaranty) or surety agreement, pledge, assignment, or other security for any of the CoBank Loan Agreement Obligations. No delay in making demand on Guarantor for satisfaction of its liability hereunder shall prejudice CoBank's right to enforce such satisfaction. All of CoBank's rights and remedies shall be cumulative and any failure of CoBank to exercise any right hereunder shall not be construed as a waiver of the right to exercise the same or any other right at any time, and from time to time, thereafter; Continuing Guaranty/Knology Broadband, Inc. Loan No. ML0883T1;
(k) This Guaranty shall be a continuing one and shall be binding upon Guarantor regardless of how long before or after the date hereof the CoBank Loan Agreement Obligations are incurred. This Guaranty shall remain in full force and effect until a written instrument of termination shall be executed and delivered by a duly authorized officer of CoBank. CoBank will only be obligated to execute such an instrument of termination if: (i) all CoBank Loan Agreement Obligations have been paid in full and (ii) CoBank has no further commitment or obligation to extend credit to the Borrowers. If so terminated, this Guaranty and Guarantor's obligations hereunder shall be automatically reinstated if at any time payment in whole or in part of any of the CoBank Loan Agreement Obligations is rescinded or restored to the Borrowers or other payor, or must be paid to any other person, upon the insolvency, bankruptcy, liquidation, dissolution or reorganization of the Borrowers or other payor, all as though such payment has not been made; and
(l) Until the CoBank Loan Agreement Obligations are paid finally and in full, or this Guaranty is released as provided herein, Guarantor hereby irrevocably waives any and all rights it may have to enforce any of CoBank's rights or remedies or participate in any security now or hereafter held by CoBank, and any and all such other rights of subrogation, reimbursement, contribution or indemnification against the Borrowers or any other person having any manner of liability for the Borrowers' obligations to CoBank, whether or not arising hereunder, by agreement, at law or in equity.. Continuing Guaranty/Knology of Knoxville Loan No. ML0883T1
Appears in 1 contract
Samples: Continuing Guaranty (Knology Inc)
Guaranty Provisions. (a) In consideration of loans, advances or disbursements heretofore or hereafter granted by CoBank to the Borrowers pursuant to the CoBank Loan Agreement or otherwise and for other good and valuable consideration, the adequacy, sufficiency and receipt of which are hereby acknowledged, Guarantor hereby absolutely, unconditionally, irrevocably, completely and immediately guarantees the prompt payment of, when due, whether by acceleration or Continuing Guaranty/Knology Broadband, Inc. Loan No. ML0883T1 otherwise, and the prompt payment and performance of the CoBank Loan Agreement Obligations, subject to the provisions set forth herein. The liability of Guarantor hereunder shall not be reduced as a result of amounts collected pursuant to any other guaranty, but shall be determined with reference to the amount of CoBank Loan Agreement Obligations prior to collection from any party other than the Borrowers;
(b) Subject to the provisions set forth herein, Guarantor further agrees to pay to CoBank, upon demand, (i) all losses and reasonable costs and expenses, including, without limitation, reasonable attorneys' fees and expenses, incurred in attempting to cause the CoBank Loan Agreement Obligations to be paid, performed or otherwise satisfied or in attempting to protect or preserve any property, personal or real, securing the CoBank Loan Agreement Obligations and (ii) all losses and reasonable costs and expenses, including, without limitation, reasonable attorneys' fees and expenses, incurred in enforcing or endeavoring to enforce this Guaranty and any other CoBank Loan Document to which Guarantor is a party or in attempting to protect or preserve property pledged under any CoBank Loan Document to which Guarantor is a party;
(c) Subject to the provisions set forth herein, Guarantor expressly guarantees, within its maximum liability hereunder, any sum or sums which become due and owing to CoBank as a result of any order of a bankruptcy court which requires CoBank to turn over moneys paid by the Borrowers, Guarantor or any other person to CoBank on account of the CoBank Loan Agreement Obligations;
(d) Guarantor assents to all terms and agreements heretofore or hereafter made by the Borrowers, any of their subsidiaries or any other guarantor of the Borrowers with CoBank;
(e) Guarantor hereby consents to the following and agrees that its liability will not be affected or impaired by (i) the exchange, release or surrender of any collateral to the Borrowers or any other person, including any other guarantor, pledgor or grantor, or the waiver, release or subordination of any security interest, in whole or in part; (ii) the waiver or delay in the exercise of any of CoBank's rights or remedies against the Borrowers or any other person, including any other guarantor; (iii) the release of the Borrowers or any other person, including any other person guaranteeing any portion of the CoBank Loan Agreement Obligations; (iv) the renewal, extension or modification of the terms of any of the CoBank Loan Agreement Obligations or any instrument or agreement evidencing the same;
(f) Guarantor waives acceptance hereof, notice of acceptance hereof, and notice of acceleration of and intention to accelerate the CoBank Loan Agreement Obligations, and waives presentment, demand, protest, notice of dishonor, notice of default, notice of nonpayment or protest in relation to any instrument evidencing any of the CoBank Loan Agreement Obligations, and any other demands and notices required by law except as such waiver may be expressly prohibited by law;
(g) This is a guaranty of payment and performance and not of collection. Subject to the provisions set forth herein, the The liability of Guarantor under this Guaranty shall be absolute, unconditional, direct, complete and immediate and shall not be contingent upon the pursuit of Continuing Guaranty/Knology Broadband, Inc. Loan No. ML0883T1 any remedies against the Borrowers or any other guarantor or person, nor against any security or lien available to CoBank, its successors, successors-in-title, endorsees or assigns. Guarantor waives any right to require that an action be brought against the Borrowers or any other person or to require that resort be had to any security. In the event of a default under the CoBank Loan Documents, or any of them, CoBank shall have the right to enforce its rights, powers and remedies under any of the CoBank Loan Documents, in any order, and all rights, powers and remedies available to CoBank in such event shall be nonexclusive and cumulative of all other rights, powers and remedies provided thereunder (including, without limitation, under the Companion Guaranty) or hereunder or by law or in equity. Accordingly, Guarantor hereby authorizes and empowers CoBank upon acceleration of the maturity of the Note or any other CoBank Loan Agreement Obligation, at its sole discretion, and without notice to Guarantor, to exercise any right or remedy which CoBank may have or any right or remedy hereinafter granted which CoBank may have as to any security, subject to the provisions set forth herein. Guarantor expressly waives any right to require any action on the part of CoBank to proceed to collect amounts due under the Note or any other CoBank Loan Agreement Obligation;
(h) Until the CoBank Loan Agreement Obligations are paid in full, Guarantor hereby subordinates any and all indebtedness of any Borrower now or hereafter owed to Guarantor to all CoBank Loan Agreement Obligations obligations of the Borrowers to CoBank, and agrees with CoBank that, from and after the occurrence of a default or event of default under any of the CoBank Loan Documents and for so long as such default or event of default exists, Guarantor shall not demand or accept any payment of principal or interest from the Borrowers, Borrowers shall not claim any offset or other reduction of Guarantor's liability hereunder because of any such indebtedness and shall not take any action to obtain any of the security for the CoBank Loan Agreement Obligations; provided, -------- however, that, if CoBank so requests, such indebtedness shall be collected, ------- enforced and received by Guarantor as trustee for CoBank and be paid over to CoBank on account of the CoBank Loan Agreement Obligations of the Borrowers to CoBank, but without reducing or affecting in any manner the liability of Guarantor under the other provisions of this Guaranty;
(i) Guarantor hereby authorizes CoBank, without notice to Guarantor, to apply all payments and credits received from the Borrowers or from any guarantor or realized from any security in such manner and in such priority as CoBank in its sole judgment shall see fit to the CoBank Loan Agreement Obligations which are the subject of this Guaranty;
(j) The liability of Guarantor under this Guaranty shall not in any manner be affected by reason of any action taken or not taken by CoBank, which action or inaction is consented and agreed to by Guarantor, nor by the partial or complete unenforceability or invalidity of any other guaranty (including, without limitation, under the Companion Guaranty) or surety agreement, pledge, assignment, or other security for any of the CoBank Loan Agreement Obligations. No delay in making demand on Guarantor for satisfaction of its liability hereunder shall prejudice CoBank's right to enforce such satisfaction. All of CoBank's rights and remedies shall be cumulative and any failure of CoBank to exercise any right hereunder shall not be construed as a waiver of the right to exercise the same or any other right at any time, and from time to time, thereafter; Continuing Guaranty/Knology Broadband, Inc. Loan No. ML0883T1;
(k) This Guaranty shall be a continuing one and shall be binding upon Guarantor regardless of how long before or after the date hereof the CoBank Loan Agreement Obligations are incurred. This Guaranty shall remain in full force and effect until a written instrument of termination shall be executed and delivered by a duly authorized officer of CoBank. CoBank will only be obligated to execute such an instrument of termination if: (i) all CoBank Loan Agreement Obligations have been paid in full and (ii) CoBank has no further commitment or obligation to extend credit to the Borrowers. If so terminated, this Guaranty and Guarantor's obligations hereunder shall be automatically reinstated if at any time payment in whole or in part of any of the CoBank Loan Agreement Obligations is rescinded or restored to the Borrowers or other payor, or must be paid to any other person, upon the insolvency, bankruptcy, liquidation, dissolution or reorganization of the Borrowers or other payor, all as though such payment has not been made; and
(l) Until the CoBank Loan Agreement Obligations are paid finally and in full, or this Guaranty is released as provided herein, Guarantor hereby irrevocably waives any and all rights it may have to enforce any of CoBank's rights or remedies or participate in any security now or hereafter held by CoBank, and any and all such other rights of subrogation, reimbursement, contribution or indemnification against the Borrowers or any other person having any manner of liability for the Borrowers' obligations to CoBank, whether or not arising hereunder, by agreement, at law or in equity.
Appears in 1 contract
Samples: Continuing Guaranty (Knology Inc)
Guaranty Provisions. (aA) In consideration of loans, advances or disbursements heretofore or hereafter granted the Loans made and to be made by CoBank Xxxxxxx to the Borrowers Borrower pursuant to the CoBank Loan Credit Agreement or otherwise and for other good and valuable consideration, the adequacy, sufficiency and receipt of which are hereby acknowledged, Guarantor hereby absolutely, unconditionally, directly, irrevocably, completely and immediately guarantees the full and prompt payment ofpayment, when due, whether by acceleration or Continuing Guaranty/Knology Broadband, Inc. Loan No. ML0883T1 otherwise, and the prompt payment and performance performance, of the CoBank Loan Agreement Guaranteed Obligations, subject to the provisions set forth herein. The liability of Guarantor hereunder shall not be reduced as a result of amounts collected pursuant to any other guaranty, but shall be determined with reference to the amount of CoBank Loan Agreement Obligations prior to collection from any party other than the Borrowers;.
(bB) Subject to the provisions set forth herein, Guarantor further agrees to pay to CoBankAdministrative Agent, for the benefit of itself and the others Lenders, upon demand, (i) all losses and reasonable costs and expenses, including, without limitation, reasonable attorneys' ’ fees and expenses, incurred in attempting any action to cause the CoBank Loan Agreement Guaranteed Obligations to be paid, performed or otherwise satisfied satisfied, incurred in enforcing or endeavoring to enforce this Guaranty or any other Loan Document or in attempting to protect or preserve any property, personal or real, securing the CoBank Loan Agreement Guaranteed Obligations or this Guaranty.
(C) Guarantor agrees that this Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment by Borrower or any other Person to Administrative Agent or any other Lender on account of the Guaranteed Obligations is rescinded or must otherwise be returned or restored upon the insolvency or bankruptcy of Borrower or any other obligor, guarantor, endorser or surety of the Guaranteed Obligations (an “Other Guarantor”) or for any other reason, all as though such payment had not been made.
(D) Guarantor’s maximum Guaranteed Obligations hereunder (the “Maximum Guarantor Liability”) in any case or proceeding referred to below (but only in such a case or proceeding) shall not be in excess of:
(i) in a case or proceeding commenced by or against Guarantor under the Bankruptcy Code on or within one year from the date on which any of the Guaranteed Obligations are incurred, the maximum amount that would not otherwise cause the Guaranteed Obligations hereunder (or any other obligations of Guarantor to Administrative Agent, Syndication Agent, Documentation Agent, Lenders and any other Person holding any of the Obligations) to be avoidable or unenforceable against Guarantor under (A) Section 548 of the Bankruptcy Code or (B) any state fraudulent transfer or fraudulent conveyance act or statute applied in such case or proceeding by virtue of Section 544 of the Bankruptcy Code; or
(ii) all losses in a case or proceeding commenced by or against Guarantor under the Bankruptcy Code subsequent to one year from the date on which any of the Guaranteed Obligations of Guarantor are incurred, the maximum amount that would not otherwise cause the Guaranteed Obligations of Guarantor hereunder (or any other obligations of Guarantor to Administrative Agent, Syndication Agent, Documentation Agent, Lenders and reasonable costs any other Person holding any of the Obligations) to be avoidable or unenforceable against Guarantor under any state fraudulent transfer or fraudulent conveyance act or statute applied in any such case or proceeding by virtue of Section 544 of the Bankruptcy Code; or
(iii) in a case or proceeding commenced by or against Guarantor under any law, statute or regulation other than the Bankruptcy Code relating to dissolution, liquidation, conservatorship, bankruptcy, fraudulent transfer or fraudulent conveyance, moratorium, readjustment of debt, compromise, rearrangement, receivership, insolvency, reorganization or similar debtor relief from time to time in effect affecting the rights of creditors generally (collectively, “Other Debtor Relief Law”), the maximum amount that would not otherwise cause the Guaranteed Obligations of Guarantor hereunder (or any other obligations of Guarantor to Administrative Agent, Syndication Agent, Documentation Agent, Lenders and expensesany other Person holding any of the Obligations) to be avoidable or unenforceable against Guarantor under such Other Debtor Relief Law, including, without limitation, reasonable attorneys' fees and expensesany state fraudulent transfer or fraudulent conveyance act or statute applied in any such case or proceeding. (The substantive state or federal laws under which the possible avoidance or unenforceability of the obligations of Guarantor hereunder (or any other obligations of Guarantor to Administrative Agent, incurred in enforcing or endeavoring to enforce this Guaranty Syndication Agent, Documentation Agent, Lenders and any other CoBank Loan Document Person holding any of the Obligations) shall be determined in any such case or proceeding shall hereinafter be referred to as the “Avoidance Provisions”). To the extent set forth above, but only to the extent that the Guaranteed Obligations of Guarantor hereunder, or the transfers made by Guarantor under the Security Documents to which Guarantor is a party or in attempting to protect or preserve property pledged under any CoBank Loan Document to which Guarantor it is a party;
, would otherwise be subject to avoidance under any Avoidance Provisions if Guarantor is not deemed to have received valuable consideration, fair value, fair consideration or reasonably equivalent value for such transfers or obligations, or if such transfers or Guaranteed Obligations of Guarantor hereunder would render Guarantor insolvent, or leave Guarantor with an unreasonably small capital or unreasonably small assets to conduct its business, or cause Guarantor to have incurred debts (cor to have intended to have incurred debts) Subject beyond its ability to pay such debts as they mature, in each case as of the time any of the Guaranteed Obligations of Guarantor are deemed to have been incurred and transfers made under such Avoidance Provisions, then the Guaranteed Obligations hereunder shall be reduced to the provisions set forth hereinmaximum amount which, after giving effect thereto, would not cause the Guaranteed Obligations of Guarantor expressly guarantees, within its maximum liability hereunder, any sum or sums which become due and owing to CoBank as a result of any order of a bankruptcy court which requires CoBank to turn over moneys paid by the Borrowers, Guarantor hereunder (or any other person obligations of Guarantor to CoBank on account Administrative Agent, Syndication Agent, Documentation Agent, Lenders or any other Person holding any of the CoBank Loan Agreement Obligations;), as so reduced, to be subject to avoidance under such Avoidance Provisions. This paragraph is intended solely to preserve the rights hereunder of Administrative Agent, Syndication Agent, Documentation Agent, Lenders and any other Person holding any of the Obligations to the maximum extent that would not cause the Guaranteed Obligations of Guarantor hereunder to be subject to avoidance under any Avoidance Provisions, and neither Guarantor nor any other Person shall have any right, defense, offset, or claim under this paragraph as against Administrative Agent, Syndication Agent, Documentation Agent, Lenders or any other Person holding any of the Obligations that would not otherwise be available to such Person under the Avoidance Provisions. Xxxxxxxxx agrees that the Guaranteed Obligations of Guarantor hereunder may at any time and from time to time exceed the Maximum Guarantor Liability, without impairing this Guaranty or any provision contained herein or affecting the rights and remedies of Lenders and Administrative Agent hereunder.
(dE) Guarantor assents to all terms and agreements heretofore or hereafter made by the Borrowers, Borrower or any of their subsidiaries Other Guarantor with Administrative Agent or any other guarantor of the Borrowers with CoBank;Lender.
(eF) Guarantor hereby consents to the following and agrees agrees, with or without notice (all notices being hereby waived), that its Guarantor’s liability will not be affected or impaired by (i) the exchange, release release, subordination or surrender of any collateral to regardless of the Borrowers consideration (if any) received in exchange therefor, any lien or any claim against Borrower, any Other Guarantor or any other person, including any other guarantor, pledgor or grantorPerson, or the waiver, release or subordination of any security interest, in whole or in part; (ii) the exercise of, or the waiver or delay in the exercise of of, any of CoBank's Administrative Agent’s or any other Lender’s rights or remedies against the Borrowers Borrower, any Other Guarantor or any other person, including any other guarantor; (iii) the release of the Borrowers or any other person, including any other person guaranteeing any portion of the CoBank Loan Agreement Obligations; (iv) the renewal, extension or modification of the terms of any of the CoBank Loan Agreement Obligations or any instrument or agreement evidencing the same;
(f) Guarantor waives acceptance hereof, notice of acceptance hereof, and notice of acceleration of and intention to accelerate the CoBank Loan Agreement Obligations, and waives presentment, demand, protest, notice of dishonor, notice of default, notice of nonpayment or protest in relation to any instrument evidencing any of the CoBank Loan Agreement Obligations, and any other demands and notices required by law except as such waiver may be expressly prohibited by law;
(g) This is a guaranty of payment and performance and not of collection. Subject to the provisions set forth herein, the liability of Guarantor under this Guaranty shall be absolute, unconditional, direct, complete and immediate and shall not be contingent upon the pursuit of Continuing Guaranty/Knology Broadband, Inc. Loan No. ML0883T1 any remedies against the Borrowers or any other guarantor or person, nor against any security or lien available to CoBank, its successors, successors-in-title, endorsees or assigns. Guarantor waives any right to require that an action be brought against the Borrowers or any other person or to require that resort be had to any security. In the event of a default under the CoBank Loan Documents, or any of them, CoBank shall have the right to enforce its rights, powers and remedies under any of the CoBank Loan Documents, in any order, and all rights, powers and remedies available to CoBank in such event shall be nonexclusive and cumulative of all other rights, powers and remedies provided thereunder Person (including, without limitation, under the Companion Guaranty) or hereunder or by law or in equity. Accordingly, Guarantor hereby authorizes and empowers CoBank upon acceleration any extension of the a maturity of the Note date or any other CoBank Loan Agreement Obligation, at its sole discretion, and without notice to Guarantor, to exercise any right or remedy which CoBank may have or any right or remedy hereinafter granted which CoBank may have as to any security, subject to the provisions set forth herein. Guarantor expressly waives any right to require any action on the part of CoBank to proceed to collect amounts due under the Note or any other CoBank Loan Agreement Obligation;
(h) Until the CoBank Loan Agreement Obligations are paid in full, Guarantor hereby subordinates any and all indebtedness of any Borrower now or hereafter owed to Guarantor to all CoBank Loan Agreement Obligations of the Borrowers to CoBank, and agrees with CoBank that, from and after the occurrence waiver of a default condition to an advance); (iii) Administrative Agent otherwise acting or event of default under any of the CoBank Loan Documents and for so long as such default or event of default exists, Guarantor shall not demand or accept any payment of principal or interest refraining from the Borrowers, shall not claim any offset or other reduction of Guarantor's liability hereunder because of any such indebtedness and shall not take any action to obtain any of the security for the CoBank Loan Agreement Obligations; provided, however, that, if CoBank so requests, such indebtedness shall be collected, enforced and received by Guarantor as trustee for CoBank and be paid over to CoBank on account of the CoBank Loan Agreement Obligations of the Borrowers to CoBank, but without reducing or affecting in any manner the liability of Guarantor under the other provisions of this Guarantyacting;
(i) Guarantor hereby authorizes CoBank, without notice to Guarantor, to apply all payments and credits received from the Borrowers or from any guarantor or realized from any security in such manner and in such priority as CoBank in its sole judgment shall see fit to the CoBank Loan Agreement Obligations which are the subject of this Guaranty;
(j) The liability of Guarantor under this Guaranty shall not in any manner be affected by reason of any action taken or not taken by CoBank, which action or inaction is consented and agreed to by Guarantor, nor by the partial or complete unenforceability or invalidity of any other guaranty (including, without limitation, under the Companion Guaranty) or surety agreement, pledge, assignment, or other security for any of the CoBank Loan Agreement Obligations. No delay in making demand on Guarantor for satisfaction of its liability hereunder shall prejudice CoBank's right to enforce such satisfaction. All of CoBank's rights and remedies shall be cumulative and any failure of CoBank to exercise any right hereunder shall not be construed as a waiver of the right to exercise the same or any other right at any time, and from time to time, thereafter; Continuing Guaranty/Knology Broadband, Inc. Loan No. ML0883T1
(k) This Guaranty shall be a continuing one and shall be binding upon Guarantor regardless of how long before or after the date hereof the CoBank Loan Agreement Obligations are incurred. This Guaranty shall remain in full force and effect until a written instrument of termination shall be executed and delivered by a duly authorized officer of CoBank. CoBank will only be obligated to execute such an instrument of termination if: (i) all CoBank Loan Agreement Obligations have been paid in full and (ii) CoBank has no further commitment or obligation to extend credit to the Borrowers. If so terminated, this Guaranty and Guarantor's obligations hereunder shall be automatically reinstated if at any time payment in whole or in part of any of the CoBank Loan Agreement Obligations is rescinded or restored to the Borrowers or other payor, or must be paid to any other person, upon the insolvency, bankruptcy, liquidation, dissolution or reorganization of the Borrowers or other payor, all as though such payment has not been made; and
(l) Until the CoBank Loan Agreement Obligations are paid finally and in full, or this Guaranty is released as provided herein, Guarantor hereby irrevocably waives any and all rights it may have to enforce any of CoBank's rights or remedies or participate in any security now or hereafter held by CoBank, and any and all such other rights of subrogation, reimbursement, contribution or indemnification against the Borrowers or any other person having any manner of liability for the Borrowers' obligations to CoBank, whether or not arising hereunder, by agreement, at law or in equity.
Appears in 1 contract
Samples: Continuing Guaranty
Guaranty Provisions. (a) In consideration of loans, advances or disbursements heretofore or hereafter granted by CoBank to the Borrowers pursuant to the CoBank Loan Agreement or otherwise and for other good and valuable consideration, the adequacy, sufficiency and receipt of which are hereby acknowledged, Guarantor hereby absolutely, unconditionally, irrevocably, completely and immediately guarantees the prompt payment of, when due, whether by acceleration or Continuing Guaranty/Knology Broadband, Inc. Loan No. ML0883T1 otherwise, and the prompt payment and performance of the CoBank Loan Agreement Obligations, subject to the provisions set forth herein. The liability of Guarantor hereunder shall not be reduced as a result of amounts collected pursuant to any other guaranty, but shall be determined with reference to the amount of CoBank Loan Agreement Obligations prior to collection from any party other than the Borrowers;
(b) Subject to the provisions set forth herein, Guarantor further agrees to pay to CoBank, upon demand, (i) all losses and reasonable costs and expenses, including, without limitation, reasonable attorneys' fees and expenses, incurred in attempting to cause the CoBank Loan Agreement Obligations to be paid, performed or otherwise satisfied or in attempting to protect or preserve any property, personal or real, securing the CoBank Loan Agreement Obligations and (ii) all losses and reasonable costs and expenses, including, without limitation, reasonable attorneys' fees and expenses, incurred in enforcing or endeavoring to enforce this Guaranty and any other CoBank Loan Document to which Guarantor is a party or in attempting to protect or preserve property pledged under any CoBank Loan Document to which Guarantor is a party;
(c) Subject to the provisions set forth herein, Guarantor expressly guarantees, within its maximum liability hereunder, any sum or sums which become due and owing to CoBank as a result of any order of a bankruptcy court which requires CoBank to turn over moneys paid by the Borrowers, Guarantor or any other person to CoBank on account of the CoBank Loan Agreement Obligations;
(d) Guarantor assents to all terms and agreements heretofore or hereafter made by the Borrowers, any of their subsidiaries or any other guarantor of the Borrowers with CoBank;; Continuing Guaranty/Knology, Inc. Loan No. ML0883T1
(e) Guarantor hereby consents to the following and agrees that its liability will not be affected or impaired by (i) the exchange, release or surrender of any collateral to the Borrowers or any other person, including any other guarantor, pledgor or grantor, or the waiver, release or subordination of any security interest, in whole or in part; (ii) the waiver or delay in the exercise of any of CoBank's rights or remedies against the Borrowers or any other person, including any other guarantor; (iii) the release of the Borrowers or any other person, including any other person guaranteeing any portion of the CoBank Loan Agreement Obligations; (iv) the renewal, extension or modification of the terms of any of the CoBank Loan Agreement Obligations or any instrument or agreement evidencing the same;
(f) Guarantor waives acceptance hereof, notice of acceptance hereof, and notice of acceleration of and intention to accelerate the CoBank Loan Agreement Obligations, and waives presentment, demand, protest, notice of dishonor, notice of default, notice of nonpayment or protest in relation to any instrument evidencing any of the CoBank Loan Agreement Obligations, and any other demands and notices required by law except as such waiver may be expressly prohibited by law;
(g) This is a guaranty of payment and performance and not of collection. Subject to the provisions set forth herein, the The liability of Guarantor under this Guaranty shall be absolute, unconditional, direct, complete and immediate and shall not be contingent upon the pursuit of Continuing Guaranty/Knology Broadband, Inc. Loan No. ML0883T1 any remedies against the Borrowers or any other guarantor or person, nor against any security or lien available to CoBank, its successors, successors-in-title, endorsees or assigns. Guarantor waives any right to require that an action be brought against the Borrowers or any other person or to require that resort be had to any security. In the event of a default under the CoBank Loan Documents, or any of them, CoBank shall have the right to enforce its rights, powers and remedies under any of the CoBank Loan Documents, in any order, and all rights, powers and remedies available to CoBank in such event shall be nonexclusive and cumulative of all other rights, powers and remedies provided thereunder (including, without limitation, under the Companion Guaranty) or hereunder or by law or in equity. Accordingly, Guarantor hereby authorizes and empowers CoBank upon acceleration of the maturity of the Note or any other CoBank Loan Agreement Obligation, at its sole discretion, and without notice to Guarantor, to exercise any right or remedy which CoBank may have or any right or remedy hereinafter granted which CoBank may have as to any security, subject to the provisions set forth herein. Guarantor expressly waives any right to require any action on the part of CoBank to proceed to collect amounts due under the Note or any other CoBank Loan Agreement Obligation;
(h) Until the CoBank Loan Agreement Obligations are paid in full, Guarantor hereby subordinates any and all indebtedness of any Borrower now or hereafter owed to Guarantor to all CoBank Loan Agreement Obligations obligations of the Borrowers to CoBank, and agrees with CoBank that, from and after the occurrence of a default or event of default under any of the CoBank Loan Documents and for so long as such default or event of default exists, Guarantor shall not demand or accept any payment of principal or interest from the Borrowers, Borrowers shall not claim any offset or other reduction of Guarantor's liability hereunder because of any such indebtedness and shall not take any action to obtain any of the security for the CoBank Loan Agreement Obligations; provided, however, that, if CoBank so requests, such indebtedness shall be collected, enforced and received by Guarantor as trustee for CoBank and be paid over to CoBank on account of the CoBank Loan Agreement Obligations of the Borrowers to CoBank, but without reducing or affecting in any manner the liability of Guarantor under the other provisions of this Guaranty;; Continuing Guaranty/Knology, Inc. Loan No. ML0883T1
(i) Guarantor hereby authorizes CoBank, without notice to Guarantor, to apply all payments and credits received from the Borrowers or from any guarantor or realized from any security in such manner and in such priority as CoBank in its sole judgment shall see fit to the CoBank Loan Agreement Obligations which are the subject of this Guaranty;
(j) The liability of Guarantor under this Guaranty shall not in any manner be affected by reason of any action taken or not taken by CoBank, which action or inaction is consented and agreed to by Guarantor, nor by the partial or complete unenforceability or invalidity of any other guaranty (including, without limitation, under the Companion Guaranty) or surety agreement, pledge, assignment, or other security for any of the CoBank Loan Agreement Obligations. No delay in making demand on Guarantor for satisfaction of its liability hereunder shall prejudice CoBank's right to enforce such satisfaction. All of CoBank's rights and remedies shall be cumulative and any failure of CoBank to exercise any right hereunder shall not be construed as a waiver of the right to exercise the same or any other right at any time, and from time to time, thereafter; Continuing Guaranty/Knology Broadband, Inc. Loan No. ML0883T1;
(k) This Guaranty shall be a continuing one and shall be binding upon Guarantor regardless of how long before or after the date hereof the CoBank Loan Agreement Obligations are incurred. This Guaranty shall remain in full force and effect until a written instrument of termination shall be executed and delivered by a duly authorized officer of CoBank. CoBank will only be obligated to execute such an instrument of termination if: (i) all CoBank Loan Agreement Obligations have been paid in full and (ii) CoBank has no further commitment or obligation to extend credit to the Borrowers. If so terminated, this Guaranty and Guarantor's obligations hereunder shall be automatically reinstated if at any time payment in whole or in part of any of the CoBank Loan Agreement Obligations is rescinded or restored to the Borrowers or other payor, or must be paid to any other person, upon the insolvency, bankruptcy, liquidation, dissolution or reorganization of the Borrowers or other payor, all as though such payment has not been made; and
(l) Until the CoBank Loan Agreement Obligations are paid finally and in full, or this Guaranty is released as provided herein, Guarantor hereby irrevocably waives any and all rights it may have to enforce any of CoBank's rights or remedies or participate in any security now or hereafter held by CoBank, and any and all such other rights of subrogation, reimbursement, contribution or indemnification against the Borrowers or any other person having any manner of liability for the Borrowers' obligations to CoBank, whether or not arising hereunder, by agreement, at law or in equity.
Appears in 1 contract
Samples: Continuing Guaranty (Knology Inc)
