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Common use of Guaranty Provisions Clause in Contracts

Guaranty Provisions. (a) Each Guarantor hereby jointly and severally, absolutely, unconditionally and irrevocably, as primary obligor and not merely as surety: (i) guarantees the full and punctual payment when due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise, of all Obligations now or hereafter existing, whether for principal, interest (including interest accruing at the then applicable rate provided in this Agreement after the occurrence of any Default set forth in Section 5 above, whether or not a claim for post-filing or post-petition interest is allowed under applicable law following the institution of a proceeding under bankruptcy, insolvency or similar laws), fees, reimbursement obligations, expenses, indemnities, or otherwise (including all such amounts which would become due but for the operation of the automatic stay under Section 362(a) of the United States Bankruptcy Code, 11 U.S.C. §362(a), and the operation of Sections 502(b) and 506(b) of the United States Bankruptcy Code, 11 U.S.C. §502(b) and §506(b)); and December 7, 2010 (ii) indemnifies and holds harmless the Lender for any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Lender in enforcing any rights under this Guaranty; provided that each Guarantor shall only be liable under this Guaranty for the maximum amount of such liability that can be hereby incurred without rendering this Guaranty, as it relates to such Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount; and provided, further, that the foregoing sentence is intended solely to preserve the rights of the Lender to the maximum extent not subject to avoidance under applicable law, and no Guarantor nor any other Person shall have any right or claim under this paragraph with respect to such maximum amount, except to the extent necessary so that the obligations of any Guarantor hereunder shall not be rendered voidable under applicable law. Each Guarantor agrees that the Obligations may at any time and from time to time exceed the maximum amount of liability that can be incurred by each Guarantor without impairing this Guaranty or affecting the rights and remedies of the Lender hereunder; provided that nothing in this sentence shall be construed to increase any Guarantor’s obligations hereunder beyond the maximum amount of liability that can be incurred by such Guarantor. This Guaranty constitutes a guaranty of payment when due and not of collection, and each Guarantor specifically agrees that it shall not be necessary or required that the Lender exercise any right, assert any claim or demand or enforce any remedy whatsoever against the Borrower, any Guarantor or any other Person before or as a condition to the obligations of such Guarantor hereunder. December 7, 2010 (b) This Guaranty shall in all respects be a continuing, absolute, unconditional and irrevocable guaranty of payment, and shall remain in full force and effect until the Termination Date has occurred. The liability of each Guarantor is continuing and relates to any Obligation, including that arising under successive transactions which shall either continue the Obligations or from time to time renew such Obligations after they have been satisfied. Each Guarantor jointly and severally guarantees that the Obligations will be paid strictly in accordance with the terms of each Loan Document under which they arise, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Lender with respect thereto. The liability of each Guarantor under this Guaranty shall be joint and several, absolute, unconditional and irrevocable irrespective of: (i) any lack of validity, legality or enforceability of any Loan Document; (ii) the failure of the Lender (i) to assert any claim or demand or to enforce any right or remedy against the Borrower, any Guarantor or any other Person (including any other guarantor) under the provisions of any Loan Document or otherwise, or (ii) to exercise any right or remedy against any other guarantor (including any Guarantor) of, or collateral securing, any Obligations; (iii) any change in the time, manner or place of payment of, or in any other term of, all or any part of the Obligations, or any other extension, compromise or renewal of any Obligation; by operation of law or otherwise and to the fullest extent permitted by applicable law, each Guarantor waives any defense arising out of any such extension, compromise or renewal even though that such extension, compromise or renewal may operate, pursuant to applicable law, to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against the Borrower or any other Guarantor or any security; December 7, 2010 (iv) any reduction, limitation, impairment or termination of any Obligations for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to (and each Guarantor hereby waives any right to or claim of) any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality, nongenuineness, irregularity, compromise, unenforceability of, or any other event or occurrence affecting, any Obligations or otherwise; (v) any amendment to, rescission, waiver, or other modification of, or any consent to or departure from, any of the terms of any Loan Document; (vi) any addition, exchange or release of any collateral or of any Person that is (or will become) a guarantor (including a Guarantor hereunder) of the Obligations, or any surrender, release, invalidity or non-perfection of any collateral, or any amendment to or waiver or release of or addition to, or consent to or departure from, any other guaranty held by the Lender securing any of the Obligations; (vii) any change in the corporate existence, structure or ownership of the Borrower or any other guarantor of or other person liable for any of the Obligations; (viii) any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Borrower or any Guarantor, or their assets or any resulting release or discharge of any obligation of the Borrower or any Guarantor; or (ix) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, the Borrower, any Guarantor, any surety or any other guarantor. (c) Each Guarantor hereby irrevocably waives (i) any defense arising by reason of any disability or other defense of the Borrower or any other guarantor, or the cessation from any cause whatsoever (including any act or omission of the Lender) of the liability of the Borrower; (b) any defense based on any claim that such Guarantor’s obligations exceed or are more burdensome than those of the Borrower; (c) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder; (d) any right to proceed against the Borrower, proceed against or exhaust any security for the Obligations, or pursue any other remedy in the power of the Lender whatsoever; (e) any benefit of and any right to participate in any security now or hereafter held by the Lender; and (f) to the fullest extent permitted by law, any and all other defenses or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties. Each Guarantor expressly waives all setoffs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Obligations, and all notices of acceptance of this Guaranty or of the existence, creation or incurrence of new or additional Obligations. December 7, 2010 (d) If acceleration of the time for payment of any of the Obligations is stayed upon the insolvency, bankruptcy or reorganization of the Borrower, all such amounts otherwise subject to acceleration under the terms of any agreement relating to the Obligations shall nonetheless be payable by the Guarantors forthwith on demand by the Lender. (e) No Guarantor shall not exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Guaranty until the Termination Date. If any amounts are paid to any Guarantor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Lender and shall forthwith be paid to the Lender to reduce the amount of the Obligations, whether matured or unmatured. (f) In the event of the death of any Guarantor, the liability of the estate of such deceased Guarantor shall continue in full force and effect as to (i) the Obligations existing at the date of death, and any renewals or extensions thereof. As to all surviving Guarantors, this Guaranty shall continue in full force and effect after the death of a Guarantor. (g) If, and to the extent that, Brazilian law shall be deemed to apply to any or all of the Guarantors’ obligations hereunder, for those purposes: (i) the Guarantors agree that their obligations to make payment hereunder shall be deemed to be a first demand obligation (garantia exigível à primeira demanda) to fulfill and comply with, as a joint and several responsibility (responsabilidade solidária), all of the outstanding obligations assumed by the Borrower under the Agreement, in the capacity of a “FIADOR E PRINCIPAL PAGADOR, solidariamente responsável” with the Borrower, in connection therewith. In addition, for such purposes, the Guarantors hereby expressly (A) waive and renounce the benefit of order (benefício de ordem) of demanding and rights provided by the Brazilian Civil Code (Law 10,406/02), specifically in accordance with Articles 827 et seq. of the Brazilian Civil Code and (ii) recognize that this Guaranty shall not be considered as a limited instrument of guarantee, for the purposes of Article 822 of the Brazilian Civil Code; December 7, 2010

Appears in 1 contract

Samples: Term Loan Facility (Platinum Merger Sub, Inc.)

Guaranty Provisions. (a) Each Guarantor hereby In consideration of the services provided by Chase under this Agreement, the Guarantors, jointly and severally, hereby absolutely, unconditionally and irrevocably, irrevocably guarantees (as primary obligor and not merely as surety: (i) guarantees the full due and punctual payment payment, when due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwiseand as the same shall become due and payable, of all Obligations now or hereafter existingeach and every obligation of the Issuer hereunder (each of the foregoing being an "Obligation" and, whether for principalcollectively, interest (including interest accruing the "Obligations") at the then applicable rate provided in this Agreement after the occurrence of any Default set forth in Section 5 above, whether or not a claim for post-filing or post-petition interest is allowed under applicable law following the institution of a proceeding under bankruptcy, insolvency or similar laws), fees, reimbursement obligations, expenses, indemnities, or otherwise (including all such amounts which would become due but for the operation of the automatic stay under Section 362(a) of the United States Bankruptcy Code, 11 U.S.C. §362(a), and the operation of Sections 502(b) and 506(b) of the United States Bankruptcy Code, 11 U.S.C. §502(b) and §506(b)); and December 7, 2010 (ii) indemnifies and holds harmless the Lender for any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Lender in enforcing any rights under this Guaranty; provided that each Guarantor shall only be liable under this Guaranty for the maximum amount of such liability that can be hereby incurred without rendering this Guaranty, as it relates to such Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount; and provided, further, that the foregoing sentence is intended solely to preserve the rights of the Lender to the maximum extent not subject to avoidance under applicable law, and no Guarantor nor any other Person shall have any right or claim under this paragraph with respect to such maximum amount, except to the extent necessary so that the obligations of any Guarantor hereunder shall not be rendered voidable under applicable law. Each Guarantor agrees that the Obligations may at any time and from time to time exceed the maximum amount of liability that can be incurred by each Guarantor without impairing this Guaranty or affecting the rights place and remedies of the Lender hereunder; provided that nothing in this sentence shall be construed to increase any Guarantor’s obligations hereunder beyond the maximum amount of liability that can be incurred by such Guarantor. This Guaranty constitutes a guaranty of payment when due and not of collection, and each Guarantor specifically agrees that it shall not be necessary or required that the Lender exercise any right, assert any claim or demand or enforce any remedy whatsoever against the Borrower, any Guarantor or any other Person before or as a condition to the obligations of such Guarantor hereunder. December 7, 2010 (b) This Guaranty shall in all respects be a continuing, absolute, unconditional and irrevocable guaranty of payment, and shall remain in full force and effect until the Termination Date has occurred. The liability of each Guarantor is continuing and relates to any Obligation, including that arising under successive transactions which shall either continue the Obligations or from time to time renew such Obligations after they have been satisfied. Each Guarantor jointly and severally guarantees that the Obligations will be paid strictly otherwise in accordance with the terms of each Loan Document under which they arisethis Agreement, regardless irrespective of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Lender with respect thereto. The liability of each Guarantor under this Guaranty shall be joint and several, absolute, unconditional and irrevocable irrespective of: (i) any lack of the validity, legality binding effect, legality, enforceability or enforceability of any Loan Document; modification to, or amendment or waiver of, or compliance with, the Notes or this Agreement, (ii) whether the failure of Notes or this Agreement shall have been duly executed by the Lender (i) to assert any claim or demand or to enforce any right or remedy against the Borrowerrespective parties thereto, any Guarantor or any other Person (including any other guarantor) under the provisions of any Loan Document or otherwise, or (ii) to exercise any right or remedy against any other guarantor (including any Guarantor) of, or collateral securing, any Obligations; (iii) any change in the time, manner existence or place of payment structure of, or the bankruptcy or insolvency of, the Issuer, (iv) the absence of any action to enforce any Obligation or the Notes or this Agreement or any collateral security or other guaranty thereof, (v) any extension, renewal, settlement, compromise, waiver or release in respect of any Obligation, the Notes or this Agreement, (vi) the existence of any claim, set-off, counterclaim or other right that the Guarantor may have against the Issuer, the noteholders or Chase, or (vii) any other term of, all circumstance that might otherwise constitute a legal or any part equitable discharge or defense of the ObligationsGuarantors. The Guarantors hereby agree that upon default in the payment when due of any Obligation they will forthwith cause the payment of each and every Obligation to be made punctually to Chase, when and as the same shall become due and payable, and as if such payment were made by the Issuer. Each Guarantor hereby expressly waives presentment, demand, protest or notice of any kind whatsoever, as well as any requirement that the noteholders, or Chase on behalf of the noteholders, file claims in the event of receivership or bankruptcy of the Issuer, or exhaust any right to take any action against the Issuer or with respect to any collateral at any time securing the Obligations or any other extension, compromise or renewal guaranty thereof; and the Guarantors hereby consent to any and all extensions of time of payment of any Obligation; or all of the Obligations and to the release of any such collateral or other guaranty. This guaranty is a guaranty of payment and not of collection merely and shall be a continuing guaranty and, as such, shall remain operative and in full force and effect until all Obligations shall have been paid and actually received in full by the party to whom any such Obligation is due. If at any time any payment of any Obligation is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, reorganization, dissolution or liquidation of the Issuer (or the appointment of a trustee, receiver, intervenor or conservator or similar official for the Issuer or any substantial part of its assets, the Guarantors' obligations hereunder with respect to such payment shall be reinstated at such time as though such payment had not been made. The Guarantors hereby irrevocably agree that they will not be entitled to enforce any right or remedy arising out of any right of subrogation that it may have or be entitled to, by operation of law or otherwise and to the fullest extent permitted by applicable law, each Guarantor waives any defense arising out of any such extension, compromise or renewal even though that such extension, compromise or renewal may operate, pursuant to applicable law, to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against the Borrower or any other Guarantor or any security; December 7, 2010 (iv) any reduction, limitation, impairment or termination of any Obligations for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to (and each Guarantor hereby waives any right to or claim of) any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality, nongenuineness, irregularity, compromise, unenforceability of, or any other event or occurrence affecting, any Obligations or otherwise; (v) any amendment to, rescission, waiver, or other modification of, or any consent to or departure from, any of the terms of any Loan Document; (vi) any addition, exchange or release of any collateral or of any Person that is (or will become) a guarantor (including a Guarantor hereunder) of the Obligations, or any surrender, release, invalidity or non-perfection of any collateral, or any amendment to or waiver or release of or addition to, or consent to or departure from, any other guaranty held by the Lender securing any of the Obligations; (vii) any change in the corporate existence, structure or ownership of the Borrower or any other guarantor of or other person liable for any of the Obligations; (viii) any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Borrower or any Guarantor, or their assets or any resulting release or discharge of any obligation of the Borrower or any Guarantor; or (ix) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, the Borrower, any Guarantor, any surety or any other guarantor. (c) Each Guarantor hereby irrevocably waives (i) any defense arising by reason of any disability or other defense of the Borrower or any other guarantor, or the cessation from any cause whatsoever (including any act or omission of the Lender) of the liability of the Borrower; (b) any defense based on any claim that such Guarantor’s obligations exceed or are more burdensome than those of the Borrower; (c) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder; (d) any right to proceed against the Borrower, proceed against or exhaust any security for the Obligations, or pursue any other remedy in the power of the Lender whatsoever; (e) any benefit of and any right to participate in any security now or hereafter held by the Lender; and (f) to the fullest extent permitted by law, any and all other defenses or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties. Each Guarantor expressly waives all setoffs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Obligations, and all notices of acceptance of this Guaranty or of the existence, creation or incurrence of new or additional Obligations. December 7, 2010 (d) If acceleration of the time for payment of any of the Obligations is stayed upon the insolvency, bankruptcy or reorganization of the Borrower, all such amounts otherwise subject to acceleration under the terms of any agreement relating to the Obligations shall nonetheless be payable by the Guarantors forthwith on demand by the Lender. (e) No Guarantor shall not exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Guaranty until the Termination Date. If any amounts are paid to any Guarantor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Lender and shall forthwith be paid to the Lender to reduce the amount of the Obligations, whether matured or unmatured. (f) In the event of the death of any Guarantor, the liability of the estate of such deceased Guarantor shall continue in full force and effect as to (i) the Obligations existing at the date of death, and any renewals or extensions thereof. As to all surviving Guarantors, this Guaranty shall continue in full force and effect after the death of a Guarantor. (g) If, and to the extent that, Brazilian law shall be deemed to apply to any or all of the Guarantors’ obligations hereunder, for those purposes: (i) the Guarantors agree that their obligations to make payment hereunder shall be deemed to be a first demand obligation (garantia exigível à primeira demanda) to fulfill and comply with, as a joint result of payments by each Guarantor hereunder, until all Obligations have been paid and several responsibility (responsabilidade solidária), all of the outstanding obligations assumed actually received in full by the Borrower under the Agreement, in the capacity of a “FIADOR E PRINCIPAL PAGADOR, solidariamente responsável” with the Borrower, in connection therewith. In addition, for party to whom any such purposes, the Guarantors hereby expressly (A) waive and renounce the benefit of order (benefício de ordem) of demanding and rights provided by the Brazilian Civil Code (Law 10,406/02), specifically in accordance with Articles 827 et seq. of the Brazilian Civil Code and (ii) recognize that this Guaranty shall not be considered as a limited instrument of guarantee, for the purposes of Article 822 of the Brazilian Civil Code; December 7, 2010Obligation is due.

Appears in 1 contract

Samples: Issuing and Paying Agency Agreement (Telecomunicaciones De Puerto Rico Inc)

Guaranty Provisions. (a) Each Guarantor Borrower hereby agrees that it is jointly and severally, absolutely, unconditionally and irrevocably, severally liable for all of the Liabilities as a primary obligor and not merely as surety: (i) . Each Borrower hereby absolutely and unconditionally guarantees to Bank, the full prompt payment and punctual payment performance when due, whether at stated maturity, by required prepayment, declaration, acceleration, demand upon acceleration or otherwise, of and at all Obligations now or hereafter existingtimes thereafter, whether for principal, interest (including interest accruing at the then applicable rate provided in this Agreement after the occurrence of any Default set forth in Section 5 above, whether or not a claim for post-filing or post-petition interest is allowed under applicable law following the institution of a proceeding under bankruptcy, insolvency or similar laws), fees, reimbursement obligations, expenses, indemnities, or otherwise (including all such amounts which would become due but for the operation of the automatic stay under Section 362(a) of the United States Bankruptcy CodeObligations, 11 U.S.C. §362(a)including, and the operation of Sections 502(b) and 506(b) of the United States Bankruptcy Codewithout limitation, 11 U.S.C. §502(b) and §506(b)); and December 7, 2010 (ii) indemnifies and holds harmless the Lender for any and all court costs and expenses (including reasonable attorneys’ and paralegals’ fees and expenses) , and all other costs paid or incurred by the Lender Bank in enforcing any rights under this Guaranty; provided that each Guarantor shall only be liable under this Guaranty for the maximum amount of such liability that can be hereby incurred without rendering this Guaranty, as it relates endeavoring to such Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount; and provided, further, that the foregoing sentence is intended solely to preserve the rights of the Lender to the maximum extent not subject to avoidance under applicable law, and no Guarantor nor any other Person shall have any right or claim under this paragraph with respect to such maximum amount, except to the extent necessary so that the obligations of any Guarantor hereunder shall not be rendered voidable under applicable law. Each Guarantor agrees that the Obligations may at any time and from time to time exceed the maximum amount of liability that can be incurred by each Guarantor without impairing this Guaranty or affecting the rights and remedies of the Lender hereunder; provided that nothing in this sentence shall be construed to increase any Guarantor’s obligations hereunder beyond the maximum amount of liability that can be incurred by such Guarantor. This Guaranty constitutes a guaranty of payment when due and not of collection, and each Guarantor specifically agrees that it shall not be necessary or required that the Lender exercise any right, assert any claim or demand or enforce any remedy whatsoever against the Borrower, any Guarantor or any other Person before or as a condition to the obligations of such Guarantor hereunder. December 7, 2010 (b) This Guaranty shall in all respects be a continuing, absolute, unconditional and irrevocable guaranty of payment, and shall remain in full force and effect until the Termination Date has occurred. The liability of each Guarantor is continuing and relates to any Obligation, including that arising under successive transactions which shall either continue the Obligations or from time to time renew such Obligations after they have been satisfied. Each Guarantor jointly and severally guarantees that the Obligations will be paid strictly in accordance with the terms of each Loan Document under which they arise, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Lender with respect thereto. The liability of each Guarantor under this Guaranty shall be joint and several, absolute, unconditional and irrevocable irrespective of: (i) any lack of validity, legality or enforceability of any Loan Document; (ii) the failure of the Lender (i) to assert any claim or demand or to enforce any right or remedy against the Borrower, any Guarantor or any other Person (including any other guarantor) under the provisions of any Loan Document or otherwise, or (ii) to exercise any right or remedy against any other guarantor (including any Guarantor) of, or collateral securing, any Obligations; (iii) any change in the time, manner or place of payment of, or in any other term of, collect all or any part of the ObligationsObligations from, or in prosecuting any action against, any Loan Party (such guaranteed liabilities and obligations are the “Guaranteed Liabilities”). Each Borrower further agrees that the Guaranteed Liabilities may be extended or renewed in whole or in part without notice to or further assent from it, and that it remains bound upon its guarantee notwithstanding any such extension or renewal. The guaranty provided hereunder is a guaranty of payment and not of collection. Each Borrower waives any right to require Bank to xxx any other extensionBorrower, compromise or renewal otherwise to enforce its payment against any collateral securing all or any part of the Guaranteed Liabilities. Each Borrower is jointly and severally liable for all amounts due to Bank under this Agreement and the other Loan Documents, regardless of which Borrower actually receives the benefit of the Advances or other extensions of credit hereunder or the amount of such Advances received or the manner in which Bank accounts for such Advances or other extensions of credit on its books and records. Each Borrower acknowledges that such Borrower is jointly and severally liable for such Advances issued by Bank. (b) Bank shall not be required or obligated to take any of the following action prior to pursuing any rights or remedies Bank may have against any Borrower: (1) take any action to collect from, or to file any claim of any Obligation; by operation of law or otherwise and to the fullest extent permitted by applicable lawkind against, each Guarantor waives any defense arising out of any such extension, compromise or renewal even though that such extension, compromise or renewal may operate, pursuant to applicable law, to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against the Borrower or any other Guarantor person or any security; December 7entity liable, 2010 (iv) any reductionjointly or severally, limitation, impairment or termination of any Obligations for any reason, including any claim of waiver, release, surrender, alteration or compromise, the full and shall not be subject to (timely payment and each Guarantor hereby waives any right to or claim of) any defense or setoff, counterclaim, recoupment or termination whatsoever by reason performance of the invalidityGuaranteed Liabilities; (2) take any steps to protect, illegalityenforce, nongenuineness, irregularity, compromise, unenforceability take possession of, perfect any interest in, foreclose or realize on any collateral or security, if any, securing the Guaranteed Liabilities; or (3) in any other event respect, exercise any diligence whatsoever in enforcing, collecting or occurrence affecting, any Obligations or otherwise; (v) any amendment to, rescission, waiver, or other modification of, or any consent attempting to or departure from, collect any of the terms of Guaranteed Liabilities by any Loan Document; (vi) any addition, exchange or release of any collateral or of any Person that is (or will become) a guarantor (including a Guarantor hereunder) of the Obligations, or any surrender, release, invalidity or non-perfection of any collateral, or any amendment to or waiver or release of or addition to, or consent to or departure from, any other guaranty held by the Lender securing any of the Obligations; (vii) any change in the corporate existence, structure or ownership of the Borrower or any other guarantor of or other person liable for any of the Obligations; (viii) any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Borrower or any Guarantor, or their assets or any resulting release or discharge of any obligation of the Borrower or any Guarantor; or (ix) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, the Borrower, any Guarantor, any surety or any other guarantormeans. (c) Each Guarantor hereby Borrower unconditionally and irrevocably waives each and every defense (iother than the indefeasible payment and satisfaction in full in cash of the Guaranteed Liabilities) which would otherwise impair, restrict, diminish or affect any defense arising by reason of the Guaranteed Liabilities. Without limiting the foregoing, Bank shall have the exclusive right from time to time without impairing, restricting, diminishing or affecting any of the Guaranteed Liabilities, and without notice of any disability or other defense of the Borrower or kind to all Borrowers, to (1) provide additional financial accommodations to any other guarantor, or the cessation from any cause whatsoever (including any act or omission of the Lender) of the liability of the Borrower; (b2) accept partial payments on the Guaranteed Liabilities; (3) take and hold collateral or security to secure the Guaranteed Liabilities, or take any defense based on other guaranty to secure the Guaranteed Liabilities; (4) in its sole discretion, apply any claim that such Guarantor’s obligations exceed collateral or are more burdensome than those security, and direct the order or manner of sale thereof, and the application of the Borrowerproceeds thereof; (c5) the benefit of release any statute of limitations affecting such Guarantor’s liability hereunder; (d) any right to proceed against the Borrower, proceed against Borrower or exhaust any security for the Obligations, or pursue any other remedy in the power co-obligor of the Lender whatsoever; (e) any benefit of and any right to participate in any security now or hereafter held by the LenderGuaranteed Liabilities; and (f6) to settle, release, compromise, collect or otherwise liquidate the fullest extent permitted by lawGuaranteed Liabilities or exchange, enforce, sell, lease, use, maintain, impair and release any and all other defenses collateral or benefits that may be derived from security therefor in any manner, without affecting or afforded by applicable law limiting the liability of or exonerating guarantors or sureties. Each Guarantor expressly waives all setoffs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of impairing any kind or nature whatsoever with respect to the Obligations, and all notices of acceptance of this Guaranty or of the existence, creation or incurrence of new or additional Obligations. December 7, 2010Guaranteed Liabilities hereunder. (d) If acceleration Each Borrower hereby unconditionally waives (1) notice of any default by any Borrower in the full and prompt payment and performance of the time Guaranteed Liabilities, and (2) presentment, notice of dishonor, protest, demand for payment and any other notices of any of the Obligations is stayed upon the insolvency, bankruptcy or reorganization of the Borrower, all such amounts otherwise subject to acceleration under the terms of any agreement relating to the Obligations shall nonetheless be payable by the Guarantors forthwith on demand by the Lenderkind. (e) No Guarantor Each Borrower assumes full responsibility for keeping informed of (1) the financial condition of the other Borrowers; (2) the extent of the Guaranteed Liabilities; and (3) all other circumstances bearing upon the other Borrowers or the risk of non-payment of the Guaranteed Liabilities. Each Borrower agrees that Bank shall have no duty or obligation to advise, furnish or supply such Borrower of or with any information known to Bank, including, but not exercise limited to, the financial condition of the other Borrowers, any right other circumstances relating to non-payment of subrogationthe Guaranteed Liabilities or otherwise. If Bank, contributionin its sole discretion, indemnity, reimbursement provides any advice or similar rights with respect information to any payments it makes under this Guaranty until the Termination Date. If any amounts are paid to any Guarantor in violation of the foregoing limitationBorrower, then such amounts Bank shall be held under no obligation to investigate the matters contained in trust for such advice or information, or to correct such advice or information if Bank thereafter knows or should have known that such advice or information is misleading or untrue, in whole or in part, or to update or provide any other advice or information in the benefit of the Lender and shall forthwith be paid to the Lender to reduce the amount of the Obligations, whether matured or unmaturedfuture. (f) In Each Borrower acknowledges and agrees that it may have a right of indemnification, subrogation, contribution and reimbursement from the event other Borrowers or Bank based upon its execution of this Loan Agreement. Each Borrower understands the benefits of having such rights, including, but not limited to, (1) such Borrower’s right to reimbursement from the other Borrowers of all monies expended for the payment of the death Guaranteed Liabilities; and (2) such Borrower’s subrogation to the rights of any Guarantor, the liability Bank after payment of the estate Guaranteed Liabilities. No Borrower shall exercise any such rights of such deceased Guarantor shall continue indemnification, subrogation, contribution or reimbursement from the other Borrowers or Bank prior to the indefeasible payment and satisfaction in full force and effect as to (i) Bank of the Obligations existing at the date of death, and any renewals or extensions thereof. As to all surviving Guarantors, this Guaranty shall continue in full force and effect after the death of a GuarantorGuaranteed Liabilities. (g) IfEach Borrower appoints each other Borrower as its agent for all purposes relevant to this Loan Agreement and the Other Agreements, including, without limitation, the giving and to the extent thatreceipt of notices and execution and delivery of all documents, Brazilian law shall instruments and certificates contemplated herein and all modifications hereto. Any acknowledgment, consent, direction, certification or other action which might otherwise be deemed to apply to any valid or effective only if given or taken by all of the Guarantors’ obligations Borrowers or any Borrower acting singly, shall be valid and effective if given or taken only by one Borrower, whether or not the other Borrowers join therein. (h) The successful operation and condition of each of the Borrowers is dependent on the continued successful performance of the functions of the group of the Borrowers as a whole and the successful operation of each of the Borrowers is dependent on the successful performance and operation of each other Borrower. Each Borrower expects to derive benefit (and its board of directors or other governing body has determined that it may reasonably be expected to derive benefit), directly and indirectly, from (i) successful operations of each of the other Borrowers and (ii) the credit extended by the Bank to Borrowers hereunder, both in their separate capacities and as members of the group of companies. Each Borrower acknowledges and agrees that the proceeds of any Advances made to Borrowers that are subsequently advanced to such Borrower will be used by such Borrower for those purposes:its working capital and accordingly each such Borrower is benefitted by the Advances provided by Bank to Borrowers hereunder. Each Borrower has determined that execution, delivery, and performance of this Loan Agreement and any other Loan Documents to be executed by such Borrower is within its purpose, will be of direct and indirect benefit to such Borrower, and is in its best interest. (i) Notwithstanding any provision of the Guarantors agree guaranty set forth in this Section 8.12 (this “Guaranty”) to the contrary, it is intended that their obligations this Guaranty, and any Liens granted by each Borrower to make payment hereunder secure this Guaranty, not constitute a “Fraudulent Conveyance” (as defined below). Consequently, each Borrower agrees that if this Guaranty, or any liens or security interests securing this Guaranty, would, but for the application of this sentence, constitute a Fraudulent Conveyance, this Guaranty and each such Lien shall be valid and enforceable only to the maximum extent that would not cause this Guaranty or such Lien to constitute a Fraudulent Conveyance, and this Guaranty shall automatically be deemed to be have been amended accordingly at all relevant times. For purposes hereof, “Fraudulent Conveyance” means a first demand obligation fraudulent conveyance under Section 548 of the “Bankruptcy Code” (garantia exigível à primeira demandaas hereinafter defined) to fulfill and comply withor a fraudulent conveyance or fraudulent transfer under the provisions of any applicable fraudulent conveyance or fraudulent transfer law or similar law of any state, nation or other governmental unit, as a joint and several responsibility (responsabilidade solidária), all of the outstanding obligations assumed by the Borrower under the Agreement, in the capacity of a “FIADOR E PRINCIPAL PAGADOR, solidariamente responsável” with the Borrower, in connection therewith. In addition, for such purposes, the Guarantors hereby expressly (A) waive and renounce the benefit of order (benefício de ordem) of demanding and rights provided by the Brazilian Civil Code (Law 10,406/02), specifically in accordance with Articles 827 et seq. of the Brazilian Civil Code and (ii) recognize that this Guaranty shall not be considered as a limited instrument of guarantee, for the purposes of Article 822 of the Brazilian Civil Code; December 7, 2010effect from time to time.

Appears in 1 contract

Samples: Loan and Security Agreement (Insurance Acquisition Corp.)

Guaranty Provisions. (aA) Each In consideration of the Loans made and to be made by Xxxxxxx to Borrower pursuant to the Credit Agreement and for other good and valuable consideration, the adequacy, sufficiency and receipt of which are hereby acknowledged, Guarantor hereby jointly and severally, absolutely, unconditionally and unconditionally, directly, irrevocably, as primary obligor completely and not merely as surety: (i) immediately guarantees the full and punctual payment prompt payment, when due, whether at stated maturity, by required prepayment, declaration, acceleration, demand acceleration or otherwise, and the prompt performance, of the Guaranteed Obligations. (B) Guarantor further agrees to pay to Administrative Agent, for the benefit of itself and the others Lenders, upon demand, all Obligations now or hereafter existing, whether for principal, interest (including interest accruing at the then applicable rate provided in this Agreement after the occurrence of any Default set forth in Section 5 above, whether or not a claim for post-filing or post-petition interest is allowed under applicable law following the institution of a proceeding under bankruptcy, insolvency or similar laws), fees, reimbursement obligations, losses and reasonable costs and expenses, indemnitiesincluding, or otherwise (including all such amounts which would become due but for the operation of the automatic stay under Section 362(a) of the United States Bankruptcy Codewithout limitation, 11 U.S.C. §362(a), and the operation of Sections 502(b) and 506(b) of the United States Bankruptcy Code, 11 U.S.C. §502(b) and §506(b)); and December 7, 2010 (ii) indemnifies and holds harmless the Lender for any and all costs and expenses (including reasonable attorneys’ fees and expenses) , incurred by in any action to cause the Lender Guaranteed Obligations to be paid, performed or otherwise satisfied, incurred in enforcing or endeavoring to enforce this Guaranty or any rights under other Loan Document or in attempting to protect or preserve any property, personal or real, securing the Guaranteed Obligations or this Guaranty; provided . (C) Guarantor agrees that each Guarantor shall only be liable under 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 liability case or proceeding by virtue of Section 544 of the Bankruptcy Code; or (ii) 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 can 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 any other Person holding any of the Obligations) to be hereby 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 any other Person holding any of the Obligations) to be avoidable or unenforceable against Guarantor under such Other Debtor Relief Law, including, without limitation, any 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, Syndication Agent, Documentation Agent, Lenders and any other 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 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 without rendering this Guarantydebts (or to have intended to have incurred debts) 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 maximum amount which, after giving effect thereto, would not cause the Guaranteed Obligations of Guarantor hereunder (or any other obligations of Guarantor to Administrative Agent, Syndication Agent, Documentation Agent, Lenders or any other Person holding any of the Obligations), as it relates so reduced, to be subject to avoidance under such Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount; and provided, further, that the foregoing sentence 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 Lender Obligations to the maximum extent that would not cause the Guaranteed Obligations of Guarantor hereunder to be subject to avoidance under applicable lawany Avoidance Provisions, and no neither Guarantor nor any other Person shall have any right right, defense, offset, or claim under this paragraph with respect 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 maximum amount, except to Person under the extent necessary so that the obligations of any Guarantor hereunder shall not be rendered voidable under applicable lawAvoidance Provisions. Each Guarantor Xxxxxxxxx agrees that the Guaranteed Obligations of Guarantor hereunder may at any time and from time to time exceed the maximum amount of liability that can be incurred by each Maximum Guarantor Liability, without impairing this Guaranty or any provision contained herein or affecting the rights and remedies of Lenders and Administrative Agent hereunder. (E) Guarantor assents to all terms and agreements heretofore or hereafter made by Borrower or any Other Guarantor with Administrative Agent or any other Lender. (F) Guarantor hereby consents to the Lender hereunder; provided following and agrees, with or without notice (all notices being hereby waived), that nothing in this sentence shall be construed to increase any Guarantor’s obligations hereunder beyond the maximum amount of liability that can be incurred by such Guarantor. This Guaranty constitutes a guaranty of payment when due and not of collection, and each Guarantor specifically agrees that it shall will not be necessary affected or required that impaired by (i) the Lender exercise exchange, release, subordination or surrender of any rightcollateral regardless of the consideration (if any) received in exchange therefor, assert any lien or any claim or demand or enforce any remedy whatsoever against the Borrower, any Other Guarantor or any other Person before Person, or as a condition to the obligations of such Guarantor hereunder. December 7waiver, 2010 (b) This Guaranty shall in all respects be a continuing, absolute, unconditional and irrevocable guaranty of payment, and shall remain in full force and effect until the Termination Date has occurred. The liability of each Guarantor is continuing and relates to any Obligation, including that arising under successive transactions which shall either continue the Obligations release or from time to time renew such Obligations after they have been satisfied. Each Guarantor jointly and severally guarantees that the Obligations will be paid strictly in accordance with the terms of each Loan Document under which they arise, regardless subordination of any lawsecurity interest, regulation in whole or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Lender with respect thereto. The liability of each Guarantor under this Guaranty shall be joint and several, absolute, unconditional and irrevocable irrespective of: (i) any lack of validity, legality or enforceability of any Loan Document; part; (ii) the failure exercise of, or the waiver or delay in the exercise of, any of the Lender (i) to assert Administrative Agent’s or any claim other Lender’s rights or demand or to enforce any right or remedy remedies against the Borrower, any Other Guarantor or any other Person (including any other guarantor) under the provisions of any Loan Document or otherwiseincluding, or (ii) to exercise any right or remedy against any other guarantor (including any Guarantor) of, or collateral securingwithout limitation, any Obligations; extension of a maturity date or any waiver of a condition to an advance); (iii) any change in the time, manner Administrative Agent otherwise acting or place of payment of, or in any other term of, all or any part of the Obligations, or any other extension, compromise or renewal of any Obligation; by operation of law or otherwise and to the fullest extent permitted by applicable law, each Guarantor waives any defense arising out of any such extension, compromise or renewal even though that such extension, compromise or renewal may operate, pursuant to applicable law, to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against the Borrower or any other Guarantor or any security; December 7, 2010 (iv) any reduction, limitation, impairment or termination of any Obligations for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to (and each Guarantor hereby waives any right to or claim of) any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality, nongenuineness, irregularity, compromise, unenforceability of, or any other event or occurrence affecting, any Obligations or otherwiserefraining from acting; (v) any amendment to, rescission, waiver, or other modification of, or any consent to or departure from, any of the terms of any Loan Document; (vi) any addition, exchange or release of any collateral or of any Person that is (or will become) a guarantor (including a Guarantor hereunder) of the Obligations, or any surrender, release, invalidity or non-perfection of any collateral, or any amendment to or waiver or release of or addition to, or consent to or departure from, any other guaranty held by the Lender securing any of the Obligations; (vii) any change in the corporate existence, structure or ownership of the Borrower or any other guarantor of or other person liable for any of the Obligations; (viii) any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Borrower or any Guarantor, or their assets or any resulting release or discharge of any obligation of the Borrower or any Guarantor; or (ix) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, the Borrower, any Guarantor, any surety or any other guarantor. (c) Each Guarantor hereby irrevocably waives (i) any defense arising by reason of any disability or other defense of the Borrower or any other guarantor, or the cessation from any cause whatsoever (including any act or omission of the Lender) of the liability of the Borrower; (b) any defense based on any claim that such Guarantor’s obligations exceed or are more burdensome than those of the Borrower; (c) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder; (d) any right to proceed against the Borrower, proceed against or exhaust any security for the Obligations, or pursue any other remedy in the power of the Lender whatsoever; (e) any benefit of and any right to participate in any security now or hereafter held by the Lender; and (f) to the fullest extent permitted by law, any and all other defenses or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties. Each Guarantor expressly waives all setoffs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Obligations, and all notices of acceptance of this Guaranty or of the existence, creation or incurrence of new or additional Obligations. December 7, 2010 (d) If acceleration of the time for payment of any of the Obligations is stayed upon the insolvency, bankruptcy or reorganization of the Borrower, all such amounts otherwise subject to acceleration under the terms of any agreement relating to the Obligations shall nonetheless be payable by the Guarantors forthwith on demand by the Lender. (e) No Guarantor shall not exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Guaranty until the Termination Date. If any amounts are paid to any Guarantor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Lender and shall forthwith be paid to the Lender to reduce the amount of the Obligations, whether matured or unmatured. (f) In the event of the death of any Guarantor, the liability of the estate of such deceased Guarantor shall continue in full force and effect as to (i) the Obligations existing at the date of death, and any renewals or extensions thereof. As to all surviving Guarantors, this Guaranty shall continue in full force and effect after the death of a Guarantor. (g) If, and to the extent that, Brazilian law shall be deemed to apply to any or all of the Guarantors’ obligations hereunder, for those purposes: (i) the Guarantors agree that their obligations to make payment hereunder shall be deemed to be a first demand obligation (garantia exigível à primeira demanda) to fulfill and comply with, as a joint and several responsibility (responsabilidade solidária), all of the outstanding obligations assumed by the Borrower under the Agreement, in the capacity of a “FIADOR E PRINCIPAL PAGADOR, solidariamente responsável” with the Borrower, in connection therewith. In addition, for such purposes, the Guarantors hereby expressly (A) waive and renounce the benefit of order (benefício de ordem) of demanding and rights provided by the Brazilian Civil Code (Law 10,406/02), specifically in accordance with Articles 827 et seq. of the Brazilian Civil Code and (ii) recognize that this Guaranty shall not be considered as a limited instrument of guarantee, for the purposes of Article 822 of the Brazilian Civil Code; December 7, 2010

Appears in 1 contract

Samples: Continuing Guaranty

Guaranty Provisions. (a) Each In consideration of the services provided by JPMorgan under this Agreement, the Guarantor hereby jointly and severally, absolutely, unconditionally and irrevocably, irrevocably guarantees (as primary obligor and not merely as surety: (i) guarantees the full due and punctual payment payment, when due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwiseand as the same shall become due and payable, of all Obligations now or hereafter existingeach and every obligation of the Issuer hereunder (each of the foregoing being an “Obligation” and, whether for principalcollectively, interest (including interest accruing the “Obligations”) at the then applicable rate provided in this Agreement after the occurrence of any Default set forth in Section 5 above, whether or not a claim for post-filing or post-petition interest is allowed under applicable law following the institution of a proceeding under bankruptcy, insolvency or similar laws), fees, reimbursement obligations, expenses, indemnities, or otherwise (including all such amounts which would become due but for the operation of the automatic stay under Section 362(a) of the United States Bankruptcy Code, 11 U.S.C. §362(a), and the operation of Sections 502(b) and 506(b) of the United States Bankruptcy Code, 11 U.S.C. §502(b) and §506(b)); and December 7, 2010 (ii) indemnifies and holds harmless the Lender for any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Lender in enforcing any rights under this Guaranty; provided that each Guarantor shall only be liable under this Guaranty for the maximum amount of such liability that can be hereby incurred without rendering this Guaranty, as it relates to such Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount; and provided, further, that the foregoing sentence is intended solely to preserve the rights of the Lender to the maximum extent not subject to avoidance under applicable law, and no Guarantor nor any other Person shall have any right or claim under this paragraph with respect to such maximum amount, except to the extent necessary so that the obligations of any Guarantor hereunder shall not be rendered voidable under applicable law. Each Guarantor agrees that the Obligations may at any time and from time to time exceed the maximum amount of liability that can be incurred by each Guarantor without impairing this Guaranty or affecting the rights place and remedies of the Lender hereunder; provided that nothing in this sentence shall be construed to increase any Guarantor’s obligations hereunder beyond the maximum amount of liability that can be incurred by such Guarantor. This Guaranty constitutes a guaranty of payment when due and not of collection, and each Guarantor specifically agrees that it shall not be necessary or required that the Lender exercise any right, assert any claim or demand or enforce any remedy whatsoever against the Borrower, any Guarantor or any other Person before or as a condition to the obligations of such Guarantor hereunder. December 7, 2010 (b) This Guaranty shall in all respects be a continuing, absolute, unconditional and irrevocable guaranty of payment, and shall remain in full force and effect until the Termination Date has occurred. The liability of each Guarantor is continuing and relates to any Obligation, including that arising under successive transactions which shall either continue the Obligations or from time to time renew such Obligations after they have been satisfied. Each Guarantor jointly and severally guarantees that the Obligations will be paid strictly otherwise in accordance with the terms of each Loan Document under which they arisethis Agreement and the Notes, regardless irrespective of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Lender with respect thereto. The liability of each Guarantor under this Guaranty shall be joint and several, absolute, unconditional and irrevocable irrespective of: (i) any lack of the validity, legality binding effect, legality, enforceability or enforceability of any Loan Document; modification to, or amendment or waiver of, or compliance with, the Notes or this Agreement, (ii) whether the failure of Notes or this Agreement shall have been duly executed by the Lender (i) to assert any claim or demand or to enforce any right or remedy against the Borrowerrespective parties thereto, any Guarantor or any other Person (including any other guarantor) under the provisions of any Loan Document or otherwise, or (ii) to exercise any right or remedy against any other guarantor (including any Guarantor) of, or collateral securing, any Obligations; (iii) any change in the time, manner existence or place of payment structure of, or the bankruptcy or insolvency of, the Issuer, (iv) the absence of any action to enforce any Obligation or the Notes or this Agreement or any collateral security or other guaranty thereof, (v) any extension, renewal, settlement, compromise, waiver or release in respect of any Obligation, the Notes or this Agreement, (vi) the existence of any claim, set-off, counterclaim or other right that the Guarantor may have against the Issuer, the noteholders or JPMorgan, or (vii) any other term of, all circumstance that might otherwise constitute a legal or any part equitable discharge or defense of the ObligationsGuarantor. The Guarantor hereby agrees that upon default in the payment when due of any Obligation it will forthwith cause the payment of each and every Obligation to be made punctually to JPMorgan or the holder of a Note, as the case may be, when and as the same shall become due and payable, and as if such payment were made by the Issuer. The Guarantor hereby expressly waives presentment, demand, protest or notice of any kind whatsoever, as well as any requirement that the noteholders, or JPMorgan on behalf of the noteholders, file claims in the event of receivership or bankruptcy of the Issuer, or exhaust any right to take any action against the Issuer or with respect to any collateral at any time securing the Obligations or any other extension, compromise or renewal guaranty thereof; and the Guarantor hereby consents to any and all extensions of time of payment of any Obligation; or all of the Obligations and to the release of any such collateral or other guaranty. This guaranty is a guaranty of payment and not of collection merely and shall be a continuing guaranty and, as such, shall remain operative and in full force and effect until all Obligations shall have been paid and actually received in full by the party to whom any such Obligation is due. If at any time any payment of any Obligation is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, reorganization, dissolution or liquidation of the Issuer (or the appointment of a trustee, receiver, intervenor or conservator or similar official for the Issuer or any substantial part of its assets, the Guarantor’s obligations hereunder with respect to such payment shall be reinstated at such time as though such payment had not been made. The Guarantor hereby irrevocably agrees that it will not be entitled to enforce any right or remedy arising out of any right of subrogation that it may have or be entitled to, by operation of law or otherwise and to the fullest extent permitted by applicable law, each Guarantor waives any defense arising out of any such extension, compromise or renewal even though that such extension, compromise or renewal may operate, pursuant to applicable law, to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against the Borrower or any other Guarantor or any security; December 7, 2010 (iv) any reduction, limitation, impairment or termination of any Obligations for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to (and each Guarantor hereby waives any right to or claim of) any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality, nongenuineness, irregularity, compromise, unenforceability of, or any other event or occurrence affecting, any Obligations or otherwise; (v) any amendment to, rescission, waiver, or other modification of, or any consent to or departure from, any of the terms of any Loan Document; (vi) any addition, exchange or release of any collateral or of any Person that is (or will become) a guarantor (including a Guarantor hereunder) of the Obligations, or any surrender, release, invalidity or non-perfection of any collateral, or any amendment to or waiver or release of or addition to, or consent to or departure from, any other guaranty held by the Lender securing any of the Obligations; (vii) any change in the corporate existence, structure or ownership of the Borrower or any other guarantor of or other person liable for any of the Obligations; (viii) any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Borrower or any Guarantor, or their assets or any resulting release or discharge of any obligation of the Borrower or any Guarantor; or (ix) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, the Borrower, any Guarantor, any surety or any other guarantor. (c) Each Guarantor hereby irrevocably waives (i) any defense arising by reason of any disability or other defense of the Borrower or any other guarantor, or the cessation from any cause whatsoever (including any act or omission of the Lender) of the liability of the Borrower; (b) any defense based on any claim that such Guarantor’s obligations exceed or are more burdensome than those of the Borrower; (c) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder; (d) any right to proceed against the Borrower, proceed against or exhaust any security for the Obligations, or pursue any other remedy in the power of the Lender whatsoever; (e) any benefit of and any right to participate in any security now or hereafter held by the Lender; and (f) to the fullest extent permitted by law, any and all other defenses or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties. Each Guarantor expressly waives all setoffs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Obligations, and all notices of acceptance of this Guaranty or of the existence, creation or incurrence of new or additional Obligations. December 7, 2010 (d) If acceleration of the time for payment of any of the Obligations is stayed upon the insolvency, bankruptcy or reorganization of the Borrower, all such amounts otherwise subject to acceleration under the terms of any agreement relating to the Obligations shall nonetheless be payable by the Guarantors forthwith on demand by the Lender. (e) No Guarantor shall not exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Guaranty until the Termination Date. If any amounts are paid to any Guarantor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Lender and shall forthwith be paid to the Lender to reduce the amount of the Obligations, whether matured or unmatured. (f) In the event of the death of any Guarantor, the liability of the estate of such deceased Guarantor shall continue in full force and effect as to (i) the Obligations existing at the date of death, and any renewals or extensions thereof. As to all surviving Guarantors, this Guaranty shall continue in full force and effect after the death of a Guarantor. (g) If, and to the extent that, Brazilian law shall be deemed to apply to any or all of the Guarantors’ obligations hereunder, for those purposes: (i) the Guarantors agree that their obligations to make payment hereunder shall be deemed to be a first demand obligation (garantia exigível à primeira demanda) to fulfill and comply with, as a joint result of payments by such Guarantor hereunder, until all Obligations have been paid and several responsibility (responsabilidade solidária), all of the outstanding obligations assumed actually received in full by the Borrower under the Agreement, in the capacity of a “FIADOR E PRINCIPAL PAGADOR, solidariamente responsável” with the Borrower, in connection therewith. In addition, for party to whom any such purposes, the Guarantors hereby expressly (A) waive and renounce the benefit of order (benefício de ordem) of demanding and rights provided by the Brazilian Civil Code (Law 10,406/02), specifically in accordance with Articles 827 et seq. of the Brazilian Civil Code and (ii) recognize that this Guaranty shall not be considered as a limited instrument of guarantee, for the purposes of Article 822 of the Brazilian Civil Code; December 7, 2010Obligation is due.

Appears in 1 contract

Samples: Issuing and Paying Agency Agreement (Ingersoll Rand Co LTD)

Guaranty Provisions. (a) Each In consideration of the services provided by JPMorgan under this Agreement, the Guarantor hereby jointly and severally, absolutely, unconditionally and irrevocably, irrevocably guarantees (as primary obligor and not merely as surety: (i) guarantees the full due and punctual payment payment, when due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwiseand as the same shall become due and payable, of all Obligations now or hereafter existingeach and every obligation of the Issuer hereunder (each of the foregoing being an “Obligation” and, whether for principalcollectively, interest (including interest accruing the “Obligations") at the then applicable rate provided in this Agreement after the occurrence of any Default set forth in Section 5 above, whether or not a claim for post-filing or post-petition interest is allowed under applicable law following the institution of a proceeding under bankruptcy, insolvency or similar laws), fees, reimbursement obligations, expenses, indemnities, or otherwise (including all such amounts which would become due but for the operation of the automatic stay under Section 362(a) of the United States Bankruptcy Code, 11 U.S.C. §362(a), and the operation of Sections 502(b) and 506(b) of the United States Bankruptcy Code, 11 U.S.C. §502(b) and §506(b)); and December 7, 2010 (ii) indemnifies and holds harmless the Lender for any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Lender in enforcing any rights under this Guaranty; provided that each Guarantor shall only be liable under this Guaranty for the maximum amount of such liability that can be hereby incurred without rendering this Guaranty, as it relates to such Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount; and provided, further, that the foregoing sentence is intended solely to preserve the rights of the Lender to the maximum extent not subject to avoidance under applicable law, and no Guarantor nor any other Person shall have any right or claim under this paragraph with respect to such maximum amount, except to the extent necessary so that the obligations of any Guarantor hereunder shall not be rendered voidable under applicable law. Each Guarantor agrees that the Obligations may at any time and from time to time exceed the maximum amount of liability that can be incurred by each Guarantor without impairing this Guaranty or affecting the rights place and remedies of the Lender hereunder; provided that nothing in this sentence shall be construed to increase any Guarantor’s obligations hereunder beyond the maximum amount of liability that can be incurred by such Guarantor. This Guaranty constitutes a guaranty of payment when due and not of collection, and each Guarantor specifically agrees that it shall not be necessary or required that the Lender exercise any right, assert any claim or demand or enforce any remedy whatsoever against the Borrower, any Guarantor or any other Person before or as a condition to the obligations of such Guarantor hereunder. December 7, 2010 (b) This Guaranty shall in all respects be a continuing, absolute, unconditional and irrevocable guaranty of payment, and shall remain in full force and effect until the Termination Date has occurred. The liability of each Guarantor is continuing and relates to any Obligation, including that arising under successive transactions which shall either continue the Obligations or from time to time renew such Obligations after they have been satisfied. Each Guarantor jointly and severally guarantees that the Obligations will be paid strictly otherwise in accordance with the terms of each Loan Document under which they arisethis Agreement, regardless irrespective of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Lender with respect thereto. The liability of each Guarantor under this Guaranty shall be joint and several, absolute, unconditional and irrevocable irrespective of: (i) any lack of the validity, legality binding effect, legality, enforceability or enforceability of any Loan Document; modification to, or amendment or waiver of, or compliance with, the Notes or this Agreement, (ii) whether the failure of Notes or this Agreement shall have been duly executed by the Lender (i) to assert any claim or demand or to enforce any right or remedy against the Borrowerrespective parties thereto, any Guarantor or any other Person (including any other guarantor) under the provisions of any Loan Document or otherwise, or (ii) to exercise any right or remedy against any other guarantor (including any Guarantor) of, or collateral securing, any Obligations; (iii) any change in the time, manner existence or place of payment structure of, or the bankruptcy or insolvency of, the Issuer, (iv) the absence of any action to enforce any Obligation or the Notes or this Agreement or any collateral security or other guaranty thereof, (v) any extension, renewal, settlement, compromise, waiver or release in respect of any Obligation, the Notes or this Agreement, (vi) the existence of any claim, set-off, counterclaim or other right that the Guarantor may have against the Issuer, the noteholders or JPMorgan, or (vii) any other term of, all circumstance that might otherwise constitute a legal or any part equitable discharge or defense of the ObligationsGuarantor. The Guarantor hereby agrees that upon default in the payment when due of any Obligation it will forthwith cause the payment of each and every Obligation to be made punctually to JPMorgan, when and as the same shall become due and payable, and as if such payment were made by the Issuer. The Guarantor hereby expressly waives presentment, demand, protest or notice of any kind whatsoever, as well as any requirement that the noteholders, or JPMorgan on behalf of the noteholders, file claims in the event of receivership or bankruptcy of the Issuer, or exhaust any right to take any action against the Issuer or with respect to any collateral at any time securing the Obligations or any other extension, compromise or renewal guaranty thereof; and the Guarantor hereby consents to any and all extensions of time of payment of any Obligation; or all of the Obligations and to the release of any such collateral or other guaranty. This guaranty is a guaranty of payment and not of collection merely and shall be a continuing guaranty and, as such, shall remain operative and in full force and effect until all Obligations shall have been paid and actually received in full by the party to whom any such Obligation is due. If at any time any payment of any Obligation is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, reorganization, dissolution or liquidation of the Issuer (or the appointment of a trustee, receiver, intervenor or conservator or similar official for the Issuer or any substantial part of its assets, the Guarantor’s obligations hereunder with respect to such payment shall be reinstated at such time as though such payment had not been made. The Guarantor hereby irrevocably agrees that it will not be entitled to enforce any right or remedy arising out of any right of subrogation that it may have or be entitled to, by operation of law or otherwise and to the fullest extent permitted by applicable law, each Guarantor waives any defense arising out of any such extension, compromise or renewal even though that such extension, compromise or renewal may operate, pursuant to applicable law, to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against the Borrower or any other Guarantor or any security; December 7, 2010 (iv) any reduction, limitation, impairment or termination of any Obligations for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to (and each Guarantor hereby waives any right to or claim of) any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality, nongenuineness, irregularity, compromise, unenforceability of, or any other event or occurrence affecting, any Obligations or otherwise; (v) any amendment to, rescission, waiver, or other modification of, or any consent to or departure from, any of the terms of any Loan Document; (vi) any addition, exchange or release of any collateral or of any Person that is (or will become) a guarantor (including a Guarantor hereunder) of the Obligations, or any surrender, release, invalidity or non-perfection of any collateral, or any amendment to or waiver or release of or addition to, or consent to or departure from, any other guaranty held by the Lender securing any of the Obligations; (vii) any change in the corporate existence, structure or ownership of the Borrower or any other guarantor of or other person liable for any of the Obligations; (viii) any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Borrower or any Guarantor, or their assets or any resulting release or discharge of any obligation of the Borrower or any Guarantor; or (ix) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, the Borrower, any Guarantor, any surety or any other guarantor. (c) Each Guarantor hereby irrevocably waives (i) any defense arising by reason of any disability or other defense of the Borrower or any other guarantor, or the cessation from any cause whatsoever (including any act or omission of the Lender) of the liability of the Borrower; (b) any defense based on any claim that such Guarantor’s obligations exceed or are more burdensome than those of the Borrower; (c) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder; (d) any right to proceed against the Borrower, proceed against or exhaust any security for the Obligations, or pursue any other remedy in the power of the Lender whatsoever; (e) any benefit of and any right to participate in any security now or hereafter held by the Lender; and (f) to the fullest extent permitted by law, any and all other defenses or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties. Each Guarantor expressly waives all setoffs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Obligations, and all notices of acceptance of this Guaranty or of the existence, creation or incurrence of new or additional Obligations. December 7, 2010 (d) If acceleration of the time for payment of any of the Obligations is stayed upon the insolvency, bankruptcy or reorganization of the Borrower, all such amounts otherwise subject to acceleration under the terms of any agreement relating to the Obligations shall nonetheless be payable by the Guarantors forthwith on demand by the Lender. (e) No Guarantor shall not exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Guaranty until the Termination Date. If any amounts are paid to any Guarantor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Lender and shall forthwith be paid to the Lender to reduce the amount of the Obligations, whether matured or unmatured. (f) In the event of the death of any Guarantor, the liability of the estate of such deceased Guarantor shall continue in full force and effect as to (i) the Obligations existing at the date of death, and any renewals or extensions thereof. As to all surviving Guarantors, this Guaranty shall continue in full force and effect after the death of a Guarantor. (g) If, and to the extent that, Brazilian law shall be deemed to apply to any or all of the Guarantors’ obligations hereunder, for those purposes: (i) the Guarantors agree that their obligations to make payment hereunder shall be deemed to be a first demand obligation (garantia exigível à primeira demanda) to fulfill and comply with, as a joint result of payments by such Guarantor hereunder, until all Obligations have been paid and several responsibility (responsabilidade solidária), all of the outstanding obligations assumed actually received in full by the Borrower under the Agreement, in the capacity of a “FIADOR E PRINCIPAL PAGADOR, solidariamente responsável” with the Borrower, in connection therewith. In addition, for party to whom any such purposes, the Guarantors hereby expressly (A) waive and renounce the benefit of order (benefício de ordem) of demanding and rights provided by the Brazilian Civil Code (Law 10,406/02), specifically in accordance with Articles 827 et seq. of the Brazilian Civil Code and (ii) recognize that this Guaranty shall not be considered as a limited instrument of guarantee, for the purposes of Article 822 of the Brazilian Civil Code; December 7, 2010Obligation is due.

Appears in 1 contract

Samples: Issuing and Paying Agency Agreement (Weatherford International LTD)

Guaranty Provisions. (aA) Each In consideration of the Loans made and to be made by Xxxxxxx to Borrower pursuant to the Credit Agreement and for other good and valuable consideration, the adequacy, sufficiency and receipt of which are hereby acknowledged, Guarantor hereby jointly and severally, absolutely, unconditionally and unconditionally, directly, irrevocably, as primary obligor completely and not merely as surety: (i) immediately guarantees the full and punctual payment prompt payment, when due, whether at stated maturity, by required prepayment, declaration, acceleration, demand acceleration or otherwise, and the prompt performance, of the Guaranteed Obligations. (B) Guarantor further agrees to pay to Administrative Agent, for the benefit of itself and the others Lenders, upon demand, all Obligations now or hereafter existing, whether for principal, interest (including interest accruing at the then applicable rate provided in this Agreement after the occurrence of any Default set forth in Section 5 above, whether or not a claim for post-filing or post-petition interest is allowed under applicable law following the institution of a proceeding under bankruptcy, insolvency or similar laws), fees, reimbursement obligations, losses and reasonable costs and expenses, indemnitiesincluding, or otherwise (including all such amounts which would become due but for the operation of the automatic stay under Section 362(a) of the United States Bankruptcy Codewithout limitation, 11 U.S.C. §362(a), and the operation of Sections 502(b) and 506(b) of the United States Bankruptcy Code, 11 U.S.C. §502(b) and §506(b)); and December 7, 2010 (ii) indemnifies and holds harmless the Lender for any and all costs and expenses (including reasonable attorneys’ fees and expenses) , incurred by in any action to cause the Lender Guaranteed Obligations to be paid, performed or otherwise satisfied, incurred in enforcing or endeavoring to enforce this Guaranty or any rights under other Loan Document or in attempting to protect or preserve any property, personal or real, securing the Guaranteed Obligations or this Guaranty; provided . (C) Guarantor agrees that each Guarantor shall only be liable under 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 liability case or proceeding by virtue of Section 544 of the Bankruptcy Code; or (ii) 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 can 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 any other Person holding any of the Obligations) to be hereby 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 any other Person holding any of the Obligations) to be avoidable or unenforceable against Guarantor under such Other Debtor Relief Law, including, without limitation, any 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, Syndication Agent, Documentation Agent, Lenders and any other 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 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 without rendering this Guarantydebts (or to have intended to have incurred debts) 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 maximum amount which, after giving effect thereto, would not cause the Guaranteed Obligations of Guarantor hereunder (or any other obligations of Guarantor to Administrative Agent, Syndication Agent, Documentation Agent, Lenders or any other Person holding any of the Obligations), as it relates so reduced, to be subject to avoidance under such Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount; and provided, further, that the foregoing sentence 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 Lender Obligations to the maximum extent that would not cause the Guaranteed Obligations of Guarantor he reunder to be subject to avoidance under applicable lawany Avoidance Provisions, and no neither Guarantor nor any other Person shall have any right right, defense, offset, or claim under this paragraph with respect 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 maximum amount, except to Person under the extent necessary so that the obligations of any Guarantor hereunder shall not be rendered voidable under applicable lawAvoidance Provisions. Each Guarantor Xxxxxxxxx agrees that the Guaranteed Obligations of Guarantor hereunder may at any time and from time to time exceed the maximum amount of liability that can be incurred by each Maximum Guarantor Liability, without impairing this Guaranty or any provision contained herein or affecting the rights and remedies of Lenders and Administrative Agent hereunder. (E) Guarantor assents to all terms and agreements heretofore or hereafter made by Borrower or any Other Guarantor with Administrative Agent or any other Lender. (F) Guarantor hereby consents to the Lender hereunder; provided following and agrees, with or without notice (all notices being hereby waived), that nothing in this sentence shall be construed to increase any Guarantor’s obligations hereunder beyond the maximum amount of liability that can be incurred by such Guarantor. This Guaranty constitutes a guaranty of payment when due and not of collection, and each Guarantor specifically agrees that it shall will not be necessary affected or required that imp aired by (i) the Lender exercise exchange, release, subordination or surrender of any rightcollateral regardless of the consideration (if any) received in exchange therefor, assert any lien or any claim or demand or enforce any remedy whatsoever against the Borrower, any Other Guarantor or any other Person before Person, or as a condition to the obligations of such Guarantor hereunder. December 7waiver, 2010 (b) This Guaranty shall in all respects be a continuing, absolute, unconditional and irrevocable guaranty of payment, and shall remain in full force and effect until the Termination Date has occurred. The liability of each Guarantor is continuing and relates to any Obligation, including that arising under successive transactions which shall either continue the Obligations release or from time to time renew such Obligations after they have been satisfied. Each Guarantor jointly and severally guarantees that the Obligations will be paid strictly in accordance with the terms of each Loan Document under which they arise, regardless subordination of any lawsecurity interest, regulation in whole or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Lender with respect thereto. The liability of each Guarantor under this Guaranty shall be joint and several, absolute, unconditional and irrevocable irrespective of: (i) any lack of validity, legality or enforceability of any Loan Document; part; (ii) the failure exercise of, or the waiver or delay in the exercise of, any of the Lender (i) to assert Administrative Agent’s or any claim other Lender’s rights or demand or to enforce any right or remedy remedies against the Borrower, any Other Guarantor or any other Person (including any other guarantor) under the provisions of any Loan Document or otherwiseincluding, or (ii) to exercise any right or remedy against any other guarantor (including any Guarantor) of, or collateral securingwithout limitation, any Obligations; extension of a maturity date or any waiver of a condition to an advance); (iii) any change in the time, manner Administrative Agent otherwise acting or place of payment of, or in any other term of, all or any part of the Obligations, or any other extension, compromise or renewal of any Obligation; by operation of law or otherwise and to the fullest extent permitted by applicable law, each Guarantor waives any defense arising out of any such extension, compromise or renewal even though that such extension, compromise or renewal may operate, pursuant to applicable law, to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against the Borrower or any other Guarantor or any security; December 7, 2010 (iv) any reduction, limitation, impairment or termination of any Obligations for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to (and each Guarantor hereby waives any right to or claim of) any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality, nongenuineness, irregularity, compromise, unenforceability of, or any other event or occurrence affecting, any Obligations or otherwiserefraining from acting; (v) any amendment to, rescission, waiver, or other modification of, or any consent to or departure from, any of the terms of any Loan Document; (vi) any addition, exchange or release of any collateral or of any Person that is (or will become) a guarantor (including a Guarantor hereunder) of the Obligations, or any surrender, release, invalidity or non-perfection of any collateral, or any amendment to or waiver or release of or addition to, or consent to or departure from, any other guaranty held by the Lender securing any of the Obligations; (vii) any change in the corporate existence, structure or ownership of the Borrower or any other guarantor of or other person liable for any of the Obligations; (viii) any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Borrower or any Guarantor, or their assets or any resulting release or discharge of any obligation of the Borrower or any Guarantor; or (ix) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, the Borrower, any Guarantor, any surety or any other guarantor. (c) Each Guarantor hereby irrevocably waives (i) any defense arising by reason of any disability or other defense of the Borrower or any other guarantor, or the cessation from any cause whatsoever (including any act or omission of the Lender) of the liability of the Borrower; (b) any defense based on any claim that such Guarantor’s obligations exceed or are more burdensome than those of the Borrower; (c) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder; (d) any right to proceed against the Borrower, proceed against or exhaust any security for the Obligations, or pursue any other remedy in the power of the Lender whatsoever; (e) any benefit of and any right to participate in any security now or hereafter held by the Lender; and (f) to the fullest extent permitted by law, any and all other defenses or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties. Each Guarantor expressly waives all setoffs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Obligations, and all notices of acceptance of this Guaranty or of the existence, creation or incurrence of new or additional Obligations. December 7, 2010 (d) If acceleration of the time for payment of any of the Obligations is stayed upon the insolvency, bankruptcy or reorganization of the Borrower, all such amounts otherwise subject to acceleration under the terms of any agreement relating to the Obligations shall nonetheless be payable by the Guarantors forthwith on demand by the Lender. (e) No Guarantor shall not exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Guaranty until the Termination Date. If any amounts are paid to any Guarantor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Lender and shall forthwith be paid to the Lender to reduce the amount of the Obligations, whether matured or unmatured. (f) In the event of the death of any Guarantor, the liability of the estate of such deceased Guarantor shall continue in full force and effect as to (i) the Obligations existing at the date of death, and any renewals or extensions thereof. As to all surviving Guarantors, this Guaranty shall continue in full force and effect after the death of a Guarantor. (g) If, and to the extent that, Brazilian law shall be deemed to apply to any or all of the Guarantors’ obligations hereunder, for those purposes: (i) the Guarantors agree that their obligations to make payment hereunder shall be deemed to be a first demand obligation (garantia exigível à primeira demanda) to fulfill and comply with, as a joint and several responsibility (responsabilidade solidária), all of the outstanding obligations assumed by the Borrower under the Agreement, in the capacity of a “FIADOR E PRINCIPAL PAGADOR, solidariamente responsável” with the Borrower, in connection therewith. In addition, for such purposes, the Guarantors hereby expressly (A) waive and renounce the benefit of order (benefício de ordem) of demanding and rights provided by the Brazilian Civil Code (Law 10,406/02), specifically in accordance with Articles 827 et seq. of the Brazilian Civil Code and (ii) recognize that this Guaranty shall not be considered as a limited instrument of guarantee, for the purposes of Article 822 of the Brazilian Civil Code; December 7, 2010

Appears in 1 contract

Samples: Continuing Guaranty

Guaranty Provisions. (a) Each In consideration of the services provided by JPMorgan under this Agreement, the Guarantor hereby jointly and severally, absolutely, unconditionally and irrevocably, irrevocably guarantees (as primary obligor and not merely as surety: (i) guarantees the full due and punctual payment payment, when due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwiseand as the same shall become due and payable, of all Obligations now or hereafter existingeach and every obligation of the Issuer hereunder (each of the foregoing being an “Obligation” and, whether for principalcollectively, interest (including interest accruing the “Obligations”) at the then applicable rate provided in this Agreement after the occurrence of any Default set forth in Section 5 above, whether or not a claim for post-filing or post-petition interest is allowed under applicable law following the institution of a proceeding under bankruptcy, insolvency or similar laws), fees, reimbursement obligations, expenses, indemnities, or otherwise (including all such amounts which would become due but for the operation of the automatic stay under Section 362(a) of the United States Bankruptcy Code, 11 U.S.C. §362(a), and the operation of Sections 502(b) and 506(b) of the United States Bankruptcy Code, 11 U.S.C. §502(b) and §506(b)); and December 7, 2010 (ii) indemnifies and holds harmless the Lender for any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Lender in enforcing any rights under this Guaranty; provided that each Guarantor shall only be liable under this Guaranty for the maximum amount of such liability that can be hereby incurred without rendering this Guaranty, as it relates to such Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount; and provided, further, that the foregoing sentence is intended solely to preserve the rights of the Lender to the maximum extent not subject to avoidance under applicable law, and no Guarantor nor any other Person shall have any right or claim under this paragraph with respect to such maximum amount, except to the extent necessary so that the obligations of any Guarantor hereunder shall not be rendered voidable under applicable law. Each Guarantor agrees that the Obligations may at any time and from time to time exceed the maximum amount of liability that can be incurred by each Guarantor without impairing this Guaranty or affecting the rights place and remedies of the Lender hereunder; provided that nothing in this sentence shall be construed to increase any Guarantor’s obligations hereunder beyond the maximum amount of liability that can be incurred by such Guarantor. This Guaranty constitutes a guaranty of payment when due and not of collection, and each Guarantor specifically agrees that it shall not be necessary or required that the Lender exercise any right, assert any claim or demand or enforce any remedy whatsoever against the Borrower, any Guarantor or any other Person before or as a condition to the obligations of such Guarantor hereunder. December 7, 2010 (b) This Guaranty shall in all respects be a continuing, absolute, unconditional and irrevocable guaranty of payment, and shall remain in full force and effect until the Termination Date has occurred. The liability of each Guarantor is continuing and relates to any Obligation, including that arising under successive transactions which shall either continue the Obligations or from time to time renew such Obligations after they have been satisfied. Each Guarantor jointly and severally guarantees that the Obligations will be paid strictly otherwise in accordance with the terms of each Loan Document under which they arisethis Agreement, regardless irrespective of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Lender with respect thereto. The liability of each Guarantor under this Guaranty shall be joint and several, absolute, unconditional and irrevocable irrespective of: (i) any lack of the validity, legality binding effect, legality, enforceability or enforceability of any Loan Document; modification to, or amendment or waiver of, or compliance with, the Notes or this Agreement, (ii) whether the failure of Notes or this Agreement shall have been duly executed by the Lender (i) to assert any claim or demand or to enforce any right or remedy against the Borrowerrespective parties thereto, any Guarantor or any other Person (including any other guarantor) under the provisions of any Loan Document or otherwise, or (ii) to exercise any right or remedy against any other guarantor (including any Guarantor) of, or collateral securing, any Obligations; (iii) any change in the time, manner existence or place of payment structure of, or the bankruptcy or insolvency of, the Issuer, (iv) the absence of any action to enforce any Obligation or the Notes or this Agreement or any collateral security or other guaranty thereof, (v) any extension, renewal, settlement, compromise, waiver or release in respect of any Obligation, the Notes or this Agreement, (vi) the existence of any claim, set-off, counterclaim or other right that the Guarantor may have against the Issuer, the noteholders or JPMorgan, or (vii) any other term of, all circumstance that might otherwise constitute a legal or any part equitable discharge or defense of the ObligationsGuarantor. The Guarantor hereby agrees that upon default in the payment when due of any Obligation it will forthwith cause the payment of each and every Obligation to be made punctually to JPMorgan, when and as the same shall become due and payable, and as if such payment were made by the Issuer. The Guarantor hereby expressly waives presentment, demand, protest or notice of any kind whatsoever, as well as any requirement that the noteholders, or JPMorgan on behalf of the noteholders, file claims in the event of receivership or bankruptcy of the Issuer, or exhaust any right to take any action against the Issuer or with respect to any collateral at any time securing the Obligations or any other extension, compromise or renewal guaranty thereof; and the Guarantor hereby consents to any and all extensions of time of payment of any Obligation; or all of the Obligations and to the release of any such collateral or other guaranty. This guaranty is a guaranty of payment and not of collection merely and shall be a continuing guaranty and, as such, shall remain operative and in full force and effect until all Obligations shall have been paid and actually received in full by the party to whom any such Obligation is due. If at any time any payment of any Obligation is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, reorganization, dissolution or liquidation of the Issuer (or the appointment of a trustee, receiver, intervenor or conservator or similar official for the Issuer or any substantial part of its assets, the Guarantor’s obligations hereunder with respect to such payment shall be reinstated at such time as though such payment had not been made. The Guarantor hereby irrevocably agrees that it will not be entitled to enforce any right or remedy arising out of any right of subrogation that it may have or be entitled to, by operation of law or otherwise and to the fullest extent permitted by applicable law, each Guarantor waives any defense arising out of any such extension, compromise or renewal even though that such extension, compromise or renewal may operate, pursuant to applicable law, to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against the Borrower or any other Guarantor or any security; December 7, 2010 (iv) any reduction, limitation, impairment or termination of any Obligations for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to (and each Guarantor hereby waives any right to or claim of) any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality, nongenuineness, irregularity, compromise, unenforceability of, or any other event or occurrence affecting, any Obligations or otherwise; (v) any amendment to, rescission, waiver, or other modification of, or any consent to or departure from, any of the terms of any Loan Document; (vi) any addition, exchange or release of any collateral or of any Person that is (or will become) a guarantor (including a Guarantor hereunder) of the Obligations, or any surrender, release, invalidity or non-perfection of any collateral, or any amendment to or waiver or release of or addition to, or consent to or departure from, any other guaranty held by the Lender securing any of the Obligations; (vii) any change in the corporate existence, structure or ownership of the Borrower or any other guarantor of or other person liable for any of the Obligations; (viii) any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Borrower or any Guarantor, or their assets or any resulting release or discharge of any obligation of the Borrower or any Guarantor; or (ix) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, the Borrower, any Guarantor, any surety or any other guarantor. (c) Each Guarantor hereby irrevocably waives (i) any defense arising by reason of any disability or other defense of the Borrower or any other guarantor, or the cessation from any cause whatsoever (including any act or omission of the Lender) of the liability of the Borrower; (b) any defense based on any claim that such Guarantor’s obligations exceed or are more burdensome than those of the Borrower; (c) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder; (d) any right to proceed against the Borrower, proceed against or exhaust any security for the Obligations, or pursue any other remedy in the power of the Lender whatsoever; (e) any benefit of and any right to participate in any security now or hereafter held by the Lender; and (f) to the fullest extent permitted by law, any and all other defenses or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties. Each Guarantor expressly waives all setoffs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Obligations, and all notices of acceptance of this Guaranty or of the existence, creation or incurrence of new or additional Obligations. December 7, 2010 (d) If acceleration of the time for payment of any of the Obligations is stayed upon the insolvency, bankruptcy or reorganization of the Borrower, all such amounts otherwise subject to acceleration under the terms of any agreement relating to the Obligations shall nonetheless be payable by the Guarantors forthwith on demand by the Lender. (e) No Guarantor shall not exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Guaranty until the Termination Date. If any amounts are paid to any Guarantor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Lender and shall forthwith be paid to the Lender to reduce the amount of the Obligations, whether matured or unmatured. (f) In the event of the death of any Guarantor, the liability of the estate of such deceased Guarantor shall continue in full force and effect as to (i) the Obligations existing at the date of death, and any renewals or extensions thereof. As to all surviving Guarantors, this Guaranty shall continue in full force and effect after the death of a Guarantor. (g) If, and to the extent that, Brazilian law shall be deemed to apply to any or all of the Guarantors’ obligations hereunder, for those purposes: (i) the Guarantors agree that their obligations to make payment hereunder shall be deemed to be a first demand obligation (garantia exigível à primeira demanda) to fulfill and comply with, as a joint result of payments by such Guarantor hereunder, until all Obligations have been paid and several responsibility (responsabilidade solidária), all of the outstanding obligations assumed actually received in full by the Borrower under the Agreement, in the capacity of a “FIADOR E PRINCIPAL PAGADOR, solidariamente responsável” with the Borrower, in connection therewith. In addition, for party to whom any such purposes, the Guarantors hereby expressly (A) waive and renounce the benefit of order (benefício de ordem) of demanding and rights provided by the Brazilian Civil Code (Law 10,406/02), specifically in accordance with Articles 827 et seq. of the Brazilian Civil Code and (ii) recognize that this Guaranty shall not be considered as a limited instrument of guarantee, for the purposes of Article 822 of the Brazilian Civil Code; December 7, 2010Obligation is due.

Appears in 1 contract

Samples: Issuing and Paying Agency Agreement (Ingersoll-Rand PLC)

Guaranty Provisions. (a) Each In consideration of the services provided by JPMorgan under this Agreement, the Guarantor hereby jointly and severally, absolutely, unconditionally and irrevocably, irrevocably guarantees (as primary obligor and not merely as surety: (i) guarantees the full due and punctual payment payment, when due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwiseand as the same shall become due and payable, of all Obligations now or hereafter existingeach and every obligation of AXA Financial hereunder (each of the foregoing being an "OBLIGATION" and, whether for principalcollectively, interest (including interest accruing the "OBLIGATIONS") at the then applicable rate provided in this Agreement after the occurrence of any Default set forth in Section 5 above, whether or not a claim for post-filing or post-petition interest is allowed under applicable law following the institution of a proceeding under bankruptcy, insolvency or similar laws), fees, reimbursement obligations, expenses, indemnities, or otherwise (including all such amounts which would become due but for the operation of the automatic stay under Section 362(a) of the United States Bankruptcy Code, 11 U.S.C. §362(a), and the operation of Sections 502(b) and 506(b) of the United States Bankruptcy Code, 11 U.S.C. §502(b) and §506(b)); and December 7, 2010 (ii) indemnifies and holds harmless the Lender for any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Lender in enforcing any rights under this Guaranty; provided that each Guarantor shall only be liable under this Guaranty for the maximum amount of such liability that can be hereby incurred without rendering this Guaranty, as it relates to such Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount; and provided, further, that the foregoing sentence is intended solely to preserve the rights of the Lender to the maximum extent not subject to avoidance under applicable law, and no Guarantor nor any other Person shall have any right or claim under this paragraph with respect to such maximum amount, except to the extent necessary so that the obligations of any Guarantor hereunder shall not be rendered voidable under applicable law. Each Guarantor agrees that the Obligations may at any time and from time to time exceed the maximum amount of liability that can be incurred by each Guarantor without impairing this Guaranty or affecting the rights place and remedies of the Lender hereunder; provided that nothing in this sentence shall be construed to increase any Guarantor’s obligations hereunder beyond the maximum amount of liability that can be incurred by such Guarantor. This Guaranty constitutes a guaranty of payment when due and not of collection, and each Guarantor specifically agrees that it shall not be necessary or required that the Lender exercise any right, assert any claim or demand or enforce any remedy whatsoever against the Borrower, any Guarantor or any other Person before or as a condition to the obligations of such Guarantor hereunder. December 7, 2010 (b) This Guaranty shall in all respects be a continuing, absolute, unconditional and irrevocable guaranty of payment, and shall remain in full force and effect until the Termination Date has occurred. The liability of each Guarantor is continuing and relates to any Obligation, including that arising under successive transactions which shall either continue the Obligations or from time to time renew such Obligations after they have been satisfied. Each Guarantor jointly and severally guarantees that the Obligations will be paid strictly otherwise in accordance with the terms of each Loan Document under which they arisethis Agreement, regardless irrespective of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Lender with respect thereto. The liability of each Guarantor under this Guaranty shall be joint and several, absolute, unconditional and irrevocable irrespective of: (i) any lack of the validity, legality binding effect, legality, enforceability or enforceability of any Loan Document; modification to, or amendment or waiver of, or compliance with, the Notes or this Agreement, (ii) whether the failure of Notes or this Agreement shall have been duly executed by the Lender (i) to assert any claim or demand or to enforce any right or remedy against the Borrowerrespective parties thereto, any Guarantor or any other Person (including any other guarantor) under the provisions of any Loan Document or otherwise, or (ii) to exercise any right or remedy against any other guarantor (including any Guarantor) of, or collateral securing, any Obligations; (iii) any change in the time, manner existence or place of payment structure of, or the bankruptcy or insolvency of, AXA Financial, (iv) the absence of any action to enforce any Obligation or the Notes or this Agreement or any collateral security or other guaranty thereof, (v) any extension, renewal, settlement, compromise, waiver or release in respect of any Obligation, the Notes or this Agreement, (vi) the existence of any claim, set-off, counterclaim or other right that the Guarantor may have against AXA Financial, the noteholders or JPMorgan, or (vii) any other term of, all circumstance that might otherwise constitute a legal or any part equitable discharge or defense of the ObligationsGuarantor. The Guarantor hereby agrees that upon default in the payment when due of any Obligation it will forthwith cause the payment of each and every Obligation to be made punctually to JPMorgan, when and as the same shall become due and payable, and as if such payment were made by AXA Financial. The Guarantor hereby expressly waives presentment, demand, protest or notice of any kind whatsoever, as well as any requirement that the noteholders, or JPMorgan on behalf of the noteholders, file claims in the event of receivership or bankruptcy of AXA Financial, or exhaust any right to take any action against AXA Financial or with respect to any collateral at any time securing the Obligations or any other extension, compromise or renewal guaranty thereof; and the Guarantor hereby consents to any and all extensions of time of payment of any Obligation; or all of the Obligations and to the release of any such collateral or other guaranty. This guaranty is a guaranty of payment and not of collection merely and shall be a continuing guaranty and, as such, shall remain operative and in full force and effect until all Obligations shall have been paid and actually received in full by the party to whom any such Obligation is due. If at any time any payment of any Obligation is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, reorganization, dissolution or liquidation of AXA Financial (or the appointment of a trustee, receiver, intervenor or conservator or similar official for AXA Financial or any substantial part of its assets, the Guarantor's obligations hereunder with respect to such payment shall be reinstated at such time as though such payment had not been made. The Guarantor hereby irrevocably agrees that it will not be entitled to enforce any right or remedy arising out of any right of subrogation that it may have or be entitled to, by operation of law or otherwise and to the fullest extent permitted by applicable law, each Guarantor waives any defense arising out of any such extension, compromise or renewal even though that such extension, compromise or renewal may operate, pursuant to applicable law, to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against the Borrower or any other Guarantor or any security; December 7, 2010 (iv) any reduction, limitation, impairment or termination of any Obligations for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to (and each Guarantor hereby waives any right to or claim of) any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality, nongenuineness, irregularity, compromise, unenforceability of, or any other event or occurrence affecting, any Obligations or otherwise; (v) any amendment to, rescission, waiver, or other modification of, or any consent to or departure from, any of the terms of any Loan Document; (vi) any addition, exchange or release of any collateral or of any Person that is (or will become) a guarantor (including a Guarantor hereunder) of the Obligations, or any surrender, release, invalidity or non-perfection of any collateral, or any amendment to or waiver or release of or addition to, or consent to or departure from, any other guaranty held by the Lender securing any of the Obligations; (vii) any change in the corporate existence, structure or ownership of the Borrower or any other guarantor of or other person liable for any of the Obligations; (viii) any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Borrower or any Guarantor, or their assets or any resulting release or discharge of any obligation of the Borrower or any Guarantor; or (ix) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, the Borrower, any Guarantor, any surety or any other guarantor. (c) Each Guarantor hereby irrevocably waives (i) any defense arising by reason of any disability or other defense of the Borrower or any other guarantor, or the cessation from any cause whatsoever (including any act or omission of the Lender) of the liability of the Borrower; (b) any defense based on any claim that such Guarantor’s obligations exceed or are more burdensome than those of the Borrower; (c) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder; (d) any right to proceed against the Borrower, proceed against or exhaust any security for the Obligations, or pursue any other remedy in the power of the Lender whatsoever; (e) any benefit of and any right to participate in any security now or hereafter held by the Lender; and (f) to the fullest extent permitted by law, any and all other defenses or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties. Each Guarantor expressly waives all setoffs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Obligations, and all notices of acceptance of this Guaranty or of the existence, creation or incurrence of new or additional Obligations. December 7, 2010 (d) If acceleration of the time for payment of any of the Obligations is stayed upon the insolvency, bankruptcy or reorganization of the Borrower, all such amounts otherwise subject to acceleration under the terms of any agreement relating to the Obligations shall nonetheless be payable by the Guarantors forthwith on demand by the Lender. (e) No Guarantor shall not exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Guaranty until the Termination Date. If any amounts are paid to any Guarantor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Lender and shall forthwith be paid to the Lender to reduce the amount of the Obligations, whether matured or unmatured. (f) In the event of the death of any Guarantor, the liability of the estate of such deceased Guarantor shall continue in full force and effect as to (i) the Obligations existing at the date of death, and any renewals or extensions thereof. As to all surviving Guarantors, this Guaranty shall continue in full force and effect after the death of a Guarantor. (g) If, and to the extent that, Brazilian law shall be deemed to apply to any or all of the Guarantors’ obligations hereunder, for those purposes: (i) the Guarantors agree that their obligations to make payment hereunder shall be deemed to be a first demand obligation (garantia exigível à primeira demanda) to fulfill and comply with, as a joint result of payments by such Guarantor hereunder, until all Obligations have been paid and several responsibility (responsabilidade solidária), all of the outstanding obligations assumed actually received in full by the Borrower under the Agreement, in the capacity of a “FIADOR E PRINCIPAL PAGADOR, solidariamente responsável” with the Borrower, in connection therewith. In addition, for party to whom any such purposes, the Guarantors hereby expressly (A) waive and renounce the benefit of order (benefício de ordem) of demanding and rights provided by the Brazilian Civil Code (Law 10,406/02), specifically in accordance with Articles 827 et seq. of the Brazilian Civil Code and (ii) recognize that this Guaranty shall not be considered as a limited instrument of guarantee, for the purposes of Article 822 of the Brazilian Civil Code; December 7, 2010Obligation is due.

Appears in 1 contract

Samples: Issuing and Paying Agency Agreement (Axa Financial Inc)