Joint and Several Obligations. (a) At all times when there is more than one Guarantor under this Guaranty, each Guarantor hereby acknowledges and agrees that (i) each Guarantor shall be jointly and severally liable to Buyer to the maximum extent permitted by Requirements of Law for all Guarantor Liabilities, (ii) the liability of each Guarantor (A) shall be absolute and unconditional and shall remain in full force and effect (or be reinstated) until the Guaranteed Indebtedness shall have been fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration of any applicable preference or similar period pursuant to any Insolvency Law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by Buyer, and (B) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any of the following, whether or not with notice to or the consent of each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement of the time for payment or performance or renewal or refinancing) of any of the Repurchase Obligations, Guarantor Liabilities, (2) the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer of any Purchased Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities (in each case, whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the Repurchase Obligations or the Guarantor Liabilities, whether by Buyer or in connection with any Insolvency Proceeding affecting any Guarantor or any other Person who, or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents or any part of the foregoing, or (5) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section 6.28, result in the release or discharge of any or all of Guarantors from the performance or observance of any of the Guarantor Liabilities, (iii) Buyer shall not be required first to initiate any suit or to exhaust its remedies against any Guarantor or any other Person to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, each Guarantor shall be and remain directly and unconditionally liable for all sums due under this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantor, and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor, or any release of any such other Guarantor, shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents), and (v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally liable for any deficiency.

Appears in 4 contracts

Samples: Guaranty Agreement (Exantas Capital Corp.), Limited Guaranty (NorthStar Real Estate Income Trust, Inc.), Guaranty Agreement (Resource Capital Corp.)

Joint and Several Obligations. (a) ~~At all times when there is more than one Guarantor under this Guaranty, each Guarantor hereby~~ Each of the Borrowers acknowledges and agrees that (i) ~~each Guarantor~~ it is a co-borrower hereunder and shall be jointly and ~~severally~~ severally, with the other Borrowers, directly and primarily liable ~~to Buyer to~~ for the ~~maximum extent permitted by Requirements~~ Finance Obligations regardless of ~~Law~~ which Borrower actually receives Loans or other extensions of credit hereunder or the amount of such Loans or other extensions of credit received or the manner in which the Administrative Agent and/or any Lender or L/C Issuer accounts for ~~all Guarantor Liabilities~~such Loans or other extensions of credit on its books and records, (ii) each of the ~~liability~~ Borrowers shall have the obligations of ~~each Guarantor (A)~~ co-maker and shall be ~~absolute and unconditional and shall remain in full force and effect (or be reinstated) until the Guaranteed Indebtedness shall have been fully and indefeasibly paid~~primary obligors with respect to all Loans, the ~~Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated~~ Letters of Credit and the ~~expiration~~ other Finance Obligations, it being agreed that such extensions of ~~any applicable preference or similar period pursuant~~ credit to ~~any Insolvency Law, or at law or in equity, without any claim having been made before~~ each Borrower inure to the ~~expiration~~ benefit of ~~such period asserting an interest in~~ all ~~or any part of any payment(s) received by Buyer~~Borrowers, and (Biii) ~~until~~ the Administrative Agent and each of the Lenders and L/C Issuers is relying on such ~~payment has been~~ joint and several liability of the Borrowers as co-makers in extending the Loans and issuing the Letters of Credit hereunder. Each Borrower’s obligations with respect to Loans made to it or with respect to any Letters of Credit issued for its account, and ~~such~~ each Borrower’s obligations ~~satisfied~~arising as a result of the joint and several liability of the Borrowers hereunder, with respect to Loans made to the other Borrower hereunder or with respect to any Letters of Credit issued for the account of any other Borrower hereunder, shall ~~not~~ be ~~discharged~~separate and distinct obligations, ~~affected, modified or impaired on the occurrence from time to time of any event, including any of the following, whether or not with notice to or the consent~~ but all such Finance Obligations shall be primary obligations of each ~~Guarantor~~Borrower. Each Borrower hereby unconditionally and irrevocably agrees that upon default in the payment when due (whether at stated maturity, ~~(1) the waiver, compromise, settlement, release, termination~~ by acceleration or ~~amendment (including any extension or postponement of the time for payment or performance or renewal or refinancing~~otherwise) of any of the Repurchase Obligations, Guarantor Liabilities, (2) the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer of any Purchased Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities (in each case, whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the Repurchase Obligations or the Guarantor Liabilities, whether by Buyer or in connection with any Insolvency Proceeding affecting any Guarantor or any other Person whoprincipal of, or interest on, any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents or any part of the foregoing, or (5) Finance Obligation payable by it to the ~~extent permitted by Requirements~~ Lender, it will forthwith pay the same, without notice of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section 6.28, result in the release or discharge of any or all of Guarantors from the performance or observance of any of the Guarantor Liabilities, (iii) Buyer shall not be required first to initiate any suit or to exhaust its remedies against any Guarantor or any other Person to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, each Guarantor shall be and remain directly and unconditionally liable for all sums due under this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantor, and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor, or any release of any such other Guarantor, shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents), and (v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally liable for any deficiencydemand.

Appears in 3 contracts

Samples: Abl Credit Agreement (MKS Instruments Inc), Assignment and Assumption (MKS Instruments Inc), Security Agreement (MKS Instruments Inc)

Appears in 3 contracts

Samples: Loan and Security Agreement (Neenah Foundry Co), Loan and Security Agreement (Neenah Foundry Co), Loan and Security Agreement (Neenah Foundry Co)

Joint and Several Obligations. ~~(a) At all times when there~~ Each Borrower acknowledges that it is ~~more than one Guarantor under this Guaranty, each Guarantor hereby acknowledges and agrees that (i) each Guarantor shall be~~ jointly and severally liable for all of the Obligations and as a result hereby unconditionally guaranties the full and prompt payment when due, whether at maturity or earlier, by reason of acceleration or otherwise, and at all times thereafter, of all indebtedness, liabilities and obligations of every kind and nature of each other Borrower to ~~Buyer~~ Agent and Lenders and, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, joint or several, now or hereafter existing, or due or to become due, and howsoever owned, held or acquired by Agent or any Lender. Each Borrower agrees that if this guaranty, or any Liens securing this guaranty, would, but for the application of this sentence, be unenforceable under applicable law, this guaranty and each such Lien shall be valid and enforceable to the maximum extent ~~permitted~~ that would not cause this guaranty or such Lien to be unenforceable under applicable law, and this guaranty shall automatically be deemed to have been amended accordingly at all relevant times. Each Borrower hereby agrees that its obligations under this guaranty shall be unconditional, irrespective of (a) the validity or enforceability of the Obligations or any part thereof, or of any promissory note or other document evidencing all or any part of the Obligations, (b) the absence of any attempt to collect the Obligations from any other Borrower or any Guarantor or other action to enforce the same, (c) the waiver or consent by ~~Requirements~~ Agent or any Lender with respect to any provision of ~~Law~~ any agreement, instrument or document evidencing or securing all or any part of the Obligations, or any other agreement, instrument or document now or hereafter executed by any other Borrower and delivered to Agent or any Lender (other than a waiver, forgiveness or consent by Agent and Lenders that reduces the amount of any of the Obligations), (d) the failure by Agent or any Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or Collateral for the Obligations, for its benefit, (e) Agent's or any Lender's election, in any proceeding instituted under the United States Bankruptcy Code or any other similar bankruptcy or insolvency legislation, of the application of Section 1111(b)(2) of the United States Bankruptcy Code or any other similar bankruptcy or insolvency legislation, (f) any borrowing or grant of a security interest by any Borrower as debtor-in-possession, under Section 364 of the United States Bankruptcy Code or any other similar bankruptcy or insolvency legislation, (g) the disallowance, under Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or any other similar bankruptcy or insolvency legislation, of all ~~Guarantor Liabilities~~or any portion of Agent's or any Lender's claim(s) for repayment of the Obligations or (h) any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a borrower or a guarantor. Each Borrower hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of receivership or bankruptcy of any Borrower, protest or notice with respect to the Obligations and all demands whatsoever, and covenants that this guaranty will not be discharged, except by complete and irrevocable payment and performance of the Obligations. No notice to any Borrower or any other party shall be required for Agent or any Lender to make demand hereunder. Such demand shall constitute a mature and liquidated claim against the applicable Borrower. Upon the occurrence of any Event of Default, Agent or any Lender may, in its sole election, proceed directly and at once, without notice, against all or any Borrower to collect and recover the full amount or any portion of the Obligations, without first proceeding against any other Borrower or any other Person, or any security or collateral for the Obligations. During the existence of an Event of Default, Agent and each Lender shall have the exclusive right to determine the application of payments and credits, if any from any Borrower, any other Person or any security or collateral for the Obligations, on account of the Obligations or of any other liability of any Borrower to Agent or any Lender. At any time after and during the continuance of an Event of Default, Agent and each Lender may, in its sole discretion, without notice to any Borrower and regardless of the acceptance of any collateral for the payment hereof, appropriate and apply toward payment of the Obligations (i) any indebtedness due or to become due from Agent or any Lender to such Borrower and (ii) any moneys, credits or other property belonging to such Borrower at any time held by or coming into the possession of Agent or any Lender or any Affiliates thereof, whether for deposit or otherwise. Notwithstanding anything to the contrary set forth in this Section 2.13, it is the intent of the parties hereto that the liability incurred by each Borrower in respect of the Obligations of the other Borrowers (and any Lien granted by each ~~Guarantor~~ Borrower to secure such Obligations), not constitute a fraudulent conveyance under Section 548 of the United States Bankruptcy Code or a fraudulent conveyance or fraudulent transfer under the provisions of any applicable law of any state or other governmental unit (A"Fraudulent Conveyance"). Consequently, each Borrower, Agent and each Lender hereby agree that if a court of competent jurisdiction determines that the incurrence of liability by any Borrower in respect of the Obligations of any other Borrower (or any Liens granted by such Borrower to secure such Obligations) would, but for the application of this sentence, constitute a Fraudulent Conveyance, such liability (and such Liens) shall be ~~absolute~~ valid and ~~unconditional~~ enforceable only to the maximum extent that would not cause the same to constitute a Fraudulent Conveyance, and this Agreement and the other Loan Documents shall ~~remain in full force and effect (or~~ automatically be ~~reinstated) until the Guaranteed Indebtedness shall~~ deemed to have been ~~fully and indefeasibly paid~~amended accordingly. Each Borrower expressly waives all rights it may have now or in the future under any statute, ~~the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration of any applicable preference~~ or ~~similar period pursuant to any Insolvency Law~~at common law, or at law or in equity, ~~without any claim having been made before the expiration of such period asserting an interest in all~~ or ~~any part of any payment(s) received by Buyer~~otherwise, ~~and (B) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified~~ to compel Agent or ~~impaired on the occurrence from time~~ Lenders to ~~time of any event, including any of the following, whether~~ xxxxxxxx assets or ~~not with notice~~ to or the consent of each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement of the time for payment or performance or renewal or refinancing) of any of the Repurchase Obligations, Guarantor Liabilities, (2) the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer of any Purchased Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities (in each case, whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the Repurchase Obligations or the Guarantor Liabilities, whether by Buyer or in connection with any Insolvency Proceeding affecting any Guarantor or any other Person who, or any of whose property, shall at the time in question be obligated proceed in respect of the ~~Repurchase~~ Obligations ~~or the Guarantor Liabilities, the~~ guaranteed hereunder against any other ~~duties and obligations under the Repurchase Documents~~ Borrower or any ~~part of the foregoing, or (5) to the extent permitted by Requirements of Law~~Guarantor, any other ~~event~~party or against any security for the payment and performance of the Obligations before proceeding against, ~~occurrence~~or as a condition to proceeding against, ~~action~~ such Borrower. It is agreed among each Borrower, Agent and Lenders that the foregoing waivers are of the essence of the transaction contemplated by this Agreement and the other Loan Documents and that, but for the provisions of this Section 2.13 and such waivers, Agent and Lenders would decline to enter into this Agreement. Each Borrower agrees that the provisions of this Section 2.13 are for the benefit of Agent and Lenders and their respective successors, transferees, endorsees and assigns, and nothing herein contained shall impair, as between any other Borrower and Agent or ~~circumstance~~ Lenders, the obligations of such other Borrower under the Loan Documents. Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, and except as set forth in Section 2.13, each Borrower hereby expressly and irrevocably subordinates to payment of the Obligations any and all rights at law or in equity to subrogation, reimbursement, exoneration, contribution, indemnification or set off (including those set forth in Section 2.14) and any and all defenses available to a surety, guarantor or accommodation co-obligor until the Obligations are indefeasibly paid in full in cash. Each Borrower acknowledges and agrees that ~~would~~this subordination is intended to benefit Agent and Lenders and shall not limit or otherwise affect such Borrower's liability hereunder or the enforceability of this Section 2.13, and that Agent, Lenders and their respective successors and assigns are intended third party beneficiaries of the waivers and agreements set forth in this Section 2.13. If Agent or any Lender may, under applicable law, proceed to realize its benefits under any of the Loan Documents giving Agent or such Lender a Lien upon any Collateral, whether owned by any Borrower or by any other Person, either by judicial foreclosure or by non-judicial sale or enforcement, Agent or any Lender may, at its sole option, determine which of its remedies or rights it may pursue without affecting any of its rights and remedies under this Section 2.13. If, in the ~~absence of this Section 6.28, result in the release or discharge of any or all of Guarantors from the performance or observance~~ exercise of any of ~~the Guarantor Liabilities, (iii) Buyer shall not be required first to initiate any suit or to exhaust~~ its remedies against any Guarantor or any other Person to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, each Guarantor shall be and remain directly and unconditionally liable for all sums due under this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantor, and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor, or any release of any such other Guarantor, shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, ~~express~~ Agent or ~~implied~~any Lender shall forfeit any of its rights or remedies, ~~or as~~ including its right to enter a ~~matter of Requirements of Law, of Buyer~~ deficiency judgment against ~~Guarantors (or of~~ any ~~Guarantor against another Guarantor or Seller, Pledgor~~ Borrower or any other ~~Person obligated under the Repurchase Documents)~~Person, ~~and (v) on disposition by Buyer~~ whether because of any ~~property encumbered~~ applicable laws pertaining to "election of remedies" or the like, each Borrower hereby consents to such action by Agent or such Lender and waives any ~~Purchased Assets~~claim based upon such action, ~~Pledged Collateral~~ even if such action by Agent or such Lender shall result in a full or partial loss of any rights of subrogation that each Borrower might otherwise have had but for such action by Agent or such Lender. Any election of remedies that results in the denial or impairment of the right of Agent or any ~~collateral~~Lender to seek a deficiency judgment against any Borrower shall not impair any other Borrower's obligation to pay the full amount of the Obligations. In the event Agent or any Lender shall bid at any foreclosure or trustee's sale or at any private sale permitted by law or the Loan Documents, ~~property~~ Agent or ~~security for~~ such Lender may bid all or less than the ~~Guarantor Liabilities each Guarantor~~ amount of the Obligations and the amount of such bid need not be paid by Agent or such Lender but shall be credited against the Obligations. The amount of the successful bid at any such sale, whether Agent, Lender or any other party is the successful bidder, shall be conclusively deemed to be the fair market value of the Collateral and the difference between such bid amount and the remaining balance of the Obligations shall be conclusively deemed to be the amount of the Obligations guaranteed under this Section 2.13, notwithstanding that any present or future law or court decision or ruling may have the effect of reducing the amount of any deficiency claim to which Agent or any Lender might otherwise be entitled but for such bidding at any such sale. The liability of Borrowers under this Section 2.13 is in addition to and shall ~~remain jointly~~ be cumulative with all liabilities of each Borrower to Agent and ~~severally liable for~~ Lenders under this Agreement and the other Loan Documents to which such Borrower is a party or in respect of any ~~deficiency~~Obligations or obligation of the other Borrower, without any limitation as to amount, unless the instrument or agreement evidencing or creating such other liability specifically provides to the contrary.

Appears in 3 contracts

Samples: Loan and Security Agreement (Wabash National Corp /De), Loan and Security Agreement (Wabash National Corp /De), Loan and Security Agreement (Wabash National Corp /De)

Joint and Several Obligations. (a) ~~At all times when there is more than one Guarantor under this Guaranty, each Guarantor~~ Each Seller hereby acknowledges and agrees that (i) each ~~Guarantor~~ Seller shall be jointly and severally liable to Buyer to the maximum extent permitted by ~~Requirements~~ Requirement of Law for all ~~Guarantor Liabilities~~Repurchase Obligations, (ii) the liability of each ~~Guarantor~~ Seller with respect to the Repurchase Obligations (A) shall be absolute and unconditional to the extent set forth in this Agreement and the other Transaction Documents and shall remain in full force and effect (or be reinstated) until ~~the Guaranteed Indebtedness~~ all Repurchase Obligations shall have been ~~fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly~~ paid, performed ~~and discharged~~and/or satisfied, ~~the Repurchase Documents have been terminated and the expiration of any applicable preference or similar period pursuant to any Insolvency Law~~as applicable, ~~or at law or~~ in ~~equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by Buyer~~full, and (B) until such ~~payment~~ payment, performance and/or satisfaction, as applicable, has ~~been made and such obligations satisfied~~occurred, shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any of the following, whether or not with notice to or the consent of each ~~Guarantor~~Seller, (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement of the time for ~~payment or performance or~~ payment, performance, satisfaction, renewal or refinancing) of any of the Repurchase Obligations (other than a waiver, compromise, settlement, release or termination in full of the Repurchase Obligations~~, Guarantor Liabilities~~), (2) the failure to give notice to each ~~Guarantor~~ Seller of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer of any Purchased ~~Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities~~ Loan (~~in each case,~~ whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any ~~nonperfection~~ non-perfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the Repurchase ~~Obligations or the Guarantor Liabilities~~Obligations, whether by Buyer or in connection with any Act of Insolvency ~~Proceeding~~ affecting any ~~Guarantor~~ Seller or any other Person who, or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations or ~~the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents or~~ any part ~~of the foregoing~~thereof, or (5) to the extent permitted by ~~Requirements~~ Requirement of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section ~~6.28~~32, result in the release or discharge of any or all ~~of Guarantors~~ Sellers from the performance or observance of any ~~of the Guarantor Liabilities~~Repurchase Obligation, (iii) Buyer shall not be required first to initiate any suit or to exhaust its remedies against any ~~Guarantor~~ Seller or any other Person to become liable, or against any of the Purchased ~~Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities~~Loans, in order to enforce ~~this Guaranty or other Repurchase~~ the Transaction Documents and each ~~Guarantor~~ Seller expressly agrees that, notwithstanding the occurrence of any of the foregoing, each ~~Guarantor~~ Seller shall be and remain directly and ~~unconditionally~~ primarily liable for all sums due under ~~this Guaranty~~any of the Transaction Documents, (iv) when making any demand hereunder against any ~~Guarantor~~Seller, Buyer may, but shall be under no obligation to, make a similar demand on any other ~~Guarantor~~Seller, and any failure by Buyer to make any such demand or to collect any payments from any other ~~Guarantor~~Seller, or any release of any such other ~~Guarantor,~~ Seller shall not relieve any ~~Guarantor~~ Seller in a respect of which a demand or collection is not made or ~~Guarantors~~ Sellers not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of ~~Requirements of Law~~law, of Buyer against ~~Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents)~~Sellers, and (v) on disposition by Buyer of any property encumbered by any Purchased ~~Assets~~Loans, ~~Pledged Collateral or any collateral, property or security for the Guarantor Liabilities~~ each ~~Guarantor~~ Seller shall be and shall remain jointly and severally liable for any ~~deficiency~~deficiency to the extent set forth in this Agreement and the other Transaction Documents.

Appears in 3 contracts

Samples: Master Repurchase Agreement, Master Repurchase Agreement (Blackstone Mortgage Trust, Inc.), Master Repurchase Agreement (Blackstone Mortgage Trust, Inc.)

Joint and Several Obligations. (a) At All Obligations shall constitute joint and several obligations of the Borrowers and shall be secured by the Administrative Agent’s security interest (on behalf of the Lender Group) and Lien upon all ~~times when there~~ of the Collateral, and by all other security interests and Liens heretofore, now or at any time hereafter granted by each Borrower to the Lender Group, or any of them, to the extent provided in the Security Documents under which such Lien arises. Each Borrower expressly represents and acknowledges that it is ~~more than one Guarantor~~ part of a common enterprise with the other Borrowers and that any financial accommodations by the Lender Group, or any of them, to any other Borrower hereunder and under ~~this Guaranty~~the other Loan Documents are and will be of direct and indirect interest, ~~each Guarantor hereby~~ benefit and advantage to all Borrowers. Each Borrower acknowledges that any Notice of Borrowing, Notice of Conversion/Continuation or other notice given by any Borrower to the Administrative Agent or any Lender shall bind all Borrowers, and that any notice given by the Administrative Agent or any Lender to any Borrower shall be effective with respect to all Borrowers. Each Borrower acknowledges and agrees that ~~(i)~~ each ~~Guarantor~~ Borrower shall be ~~jointly~~ liable, on a joint and ~~severally liable to Buyer to the maximum extent permitted by Requirements of Law~~ several basis, for all Guarantor Liabilities, (ii) the liability of each Guarantor (A) shall be absolute and unconditional and shall remain in full force and effect (or be reinstated) until the Guaranteed Indebtedness shall have been fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration of any applicable preference or similar period pursuant to any Insolvency Law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by Buyer, and (B) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any of the ~~following~~Loans and other Obligations, ~~whether or not with notice to or~~ regardless of which Borrower actually may have received the consent of each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement of the time for payment or performance or renewal or refinancing) proceeds of any of the ~~Repurchase Obligations~~Loans or other extensions of credit or the amount of such Loans or other extensions of credit received or the manner in which the Administrative Agent or any Lender accounts among the Borrowers for such Loans or other Obligations on its books and records, ~~Guarantor Liabilities, (2)~~ and further acknowledges and agrees that Loans and other extensions of credit to any Borrower inure to the ~~failure to give notice to each Guarantor~~ mutual benefit of all of the ~~occurrence of an Event of Default, (3)~~ Borrowers and that the ~~release, substitution or exchange by Buyer of any Purchased Asset, Pledged Collateral or any collateral, property or security for~~ Lender Group is relying on the Repurchase Documents or the Guarantor Liabilities (in each case, whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part joint and several liability of the ~~Repurchase Obligations or~~ Borrowers in extending the ~~Guarantor Liabilities, whether by Buyer or in connection with any Insolvency Proceeding affecting any Guarantor or any~~ Loans and other ~~Person who, or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations or the Guarantor Liabilities, the other duties and obligations~~ financial accommodations under the Repurchase Documents or any part of the foregoing, or (5) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section 6.28, result in the release or discharge of any or all of Guarantors from the performance or observance of any of the Guarantor Liabilities, (iii) Buyer shall not be required first to initiate any suit or to exhaust its remedies against any Guarantor or any other Person to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Loan Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, each Guarantor shall be and remain directly and unconditionally liable for all sums due under this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantor, and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor, or any release of any such other Guarantor, shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Bank Products Documents), and (v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally liable for any deficiency.

Appears in 3 contracts

Samples: Credit Agreement (La-Z-Boy Inc), Credit Agreement (La-Z-Boy Inc), Credit Agreement (La-Z-Boy Inc)

Joint and Several Obligations. Each Guarantor agrees that the obligations of the “Guarantors” hereunder and under the other Transaction Documents are joint and several obligations of each of the Guarantors. Each Guarantor further specifically agrees that it shall not be necessary or required, and that no Guarantor shall be entitled to require, before or as a condition precedent to the enforcement of the obligations of such Guarantor hereunder or under the other Transaction Documents, that Agent or any Holder or any other Person: (a) ~~At all times when there is more than one Guarantor under this Guaranty, each Guarantor hereby acknowledges and agrees that (i) each Guarantor shall be jointly and severally liable~~ make any effort to ~~Buyer to~~ enforce the maximum extent permitted by Requirements of Law for all Guarantor Liabilities, (ii) the liability of each Guarantor (A) shall be absolute and unconditional and shall remain in full force and effect (or be reinstated) until the Guaranteed Indebtedness shall have been fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration of any applicable preference or similar period pursuant to any Insolvency Law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by Buyer, and (B) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any of the following, whether or not with notice to or the consent of each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement of the time for payment or performance by any other Guarantor of any of its obligations under this Agreement or ~~renewal~~ the other Transaction Documents, or ~~refinancing~~(b) forecloseagainst or seek to realize upon collateral security or other credit support, if any, now or hereafter existing, for the Obligations or any obligations of any of the Repurchase Obligations, Guarantor Liabilities, (2) the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer of any Purchased Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents Guarantors under this Agreement or the ~~Guarantor Liabilities~~ other Transaction Documents, or (~~in each case, whether with~~ c) file suit or ~~without consideration)~~ proceed to obtain or ~~the acceptance by Buyer of any additional collateral or the availability or claimed availability of~~ assert a claim for personal judgment against any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the Repurchase Obligations or the Guarantor Liabilities, whether by Buyer or in connection with any Insolvency Proceeding affecting any Guarantor or any other Person ~~who,~~ liable for payment or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents or any part of the foregoing, or (5) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section 6.28, result in the release or discharge of any or all of Guarantors from the performance ~~or observance~~ of any of the ~~Guarantor Liabilities, (iii) Buyer shall not be required first to initiate any suit~~ Obligations or to exhaust its remedies against any Guarantor or any other Person to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any of the ~~foregoing, each Guarantor shall be and remain directly and unconditionally liable for all sums due~~ obligations of any of the Guarantors under this ~~Guaranty~~Agreement or the other Transaction Documents, or (ivd) ~~when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on~~ exercise or assert any other ~~Guarantor~~right or remedy to which Agent, ~~and~~ the Holders or any ~~failure by Buyer to make~~ other person is or may be entitled in connection with this Agreement or the other Transaction Documents, the Obligations, or any ~~such demand~~ security or ~~to collect~~ other guaranty therefor, or (e) assert of file any ~~payments from any~~ claim against the assets of the other Guarantor, or any ~~release~~ other person liable for the Obligations or any of the obligations of any ~~such~~ of the Guarantors under this Agreement or the other Guarantor, shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or impliedTransaction Documents, or any part thereof. Each Guarantor hereby unconditionally waives any requirement that, as a ~~matter~~ condition precedent to the enforcement of ~~Requirements~~ the obligations of ~~Law~~such Guarantor hereunder or under the other Transaction Documents, ~~of Buyer against Guarantors (~~the other Guarantors, the Agent, the Agent or any Holder be joined as parties to any proceedings for the enforcement of any ~~Guarantor against another Guarantor~~ provision of this Agreement or ~~Seller, Pledgor or any~~ the other ~~Person obligated under the Repurchase~~ Transaction Documents), and (v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally liable for any deficiency.

Appears in 3 contracts

Samples: Securities Purchase Agreement (ObsEva SA), Securities Purchase Agreement (ObsEva SA), Securities Purchase Agreement (ObsEva SA)

Joint and Several Obligations. (a) ~~At all times when there is more than one Guarantor under this Guaranty, each Guarantor~~ Seller hereby acknowledges and agrees that (i) ~~each Guarantor~~ Seller shall be jointly and severally liable with the sellers under each Other Repurchase Agreement to Buyer to the maximum extent permitted by Requirements of Law for all ~~Guarantor Liabilities~~Repurchase Obligations and all Other Facility Repurchase Obligations, (ii) the liability of ~~each Guarantor~~ Seller (A) shall be absolute and unconditional and shall remain in full force and effect (or be reinstated) until ~~the Guaranteed Indebtedness~~ all Repurchase Obligations and all Other Facility Repurchase Obligations shall have been ~~fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated~~ paid in full and the expiration of any applicable preference or similar period pursuant to any Insolvency Law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by Buyer, and (B) until such payment has been ~~made and such obligations satisfied~~made, shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any of the following, whether or not with notice to or the consent of ~~each Guarantor~~Seller, (1) the waiver, compromise, settlement, release, modification, supplementation, termination or amendment (including any extension or postponement of the time for payment or performance or renewal or refinancing) of any of the Repurchase Obligations, ~~Guarantor Liabilities~~Repurchase Documents, any Other Facility Repurchase Obligations or “Repurchase Documents” (as defined in the Kensington Repurchase Agreement) or the “Facility Documents” (as defined in the Gloss Loan Agreement), (2) the failure to give notice to ~~each Guarantor~~ Seller of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer of any Purchased Asset or “Purchased Asset, ” (as defined in the Kensington Repurchase Agreement) or “Pledged ~~Collateral or any collateral, property or security for~~ Asset” (as defined in the ~~Repurchase Documents or the Guarantor Liabilities~~ Gloss Loan Agreement) (~~in each case,~~ whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the Repurchase Obligations or ~~the Guarantor Liabilities~~any Other Facility Repurchase Obligations, whether by Buyer or in connection with any Insolvency Proceeding affecting Seller, any ~~Guarantor~~ seller under the Other Repurchase Agreement, or any other Person who, or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations, any Other Facility Repurchase Obligations ~~or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents~~ or any part thereof, (5) the sale, exchange, waiver, surrender or release of any Purchased Asset, “Purchased Asset” (as defined in the ~~foregoing~~Kensington Repurchase Agreement), guarantee or other collateral by Buyer, “Pledged Asset” (as defined in the Gloss Loan Agreement), (6) the failure of Buyer to protect, secure, perfect or insure any Lien at any time held by Buyer as security for amounts owed by Seller or any seller under the Other Repurchase Agreement, or (57) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section ~~6.28~~18.27, result in the release or discharge ~~of any or all of Guarantors~~ Seller from the performance or observance of any Repurchase Obligation or any seller from the performance or observance of ~~the Guarantor Liabilities~~any Other Facility Repurchase Obligation, (iii) Buyer shall not be required first to initiate any suit or to exhaust its remedies against Seller, any ~~Guarantor~~ seller under the Other Repurchase Agreement or any other Person to become liable, or against any of the Purchased Assets or “Purchased Assets, ” (as defined in the Kensington Repurchase Agreement) or “Pledged ~~Collateral or any collateral, property or security for~~ Assets” (as defined in the ~~Repurchase Documents or the Guarantor Liabilities~~Gloss Loan Agreement), in order to enforce ~~this Guaranty or other~~ the Repurchase Documents and ~~each Guarantor~~ the “Repurchase Documents” (as defined in the Kensington Repurchase Agreement) or the “Facility Documents” (as defined in the Gloss Loan Agreement) and Seller expressly agrees that, notwithstanding the occurrence of any of the foregoing, ~~each Guarantor~~ Seller shall be and remain directly and ~~unconditionally~~ primarily liable for all sums due under ~~this Guaranty~~any of the Repurchase Documents and the “Repurchase Documents” (as defined in the Kensington Repurchase Agreement) or the “Facility Documents” (as defined in the Gloss Loan Agreement), (iv) when making any demand hereunder against Seller or any ~~Guarantor~~of the Purchased Assets, Buyer may, but shall be under no obligation to, make a similar demand on any seller under the Other Repurchase Agreement, or otherwise pursue such rights and remedies as it may have against any seller under the Other Repurchase Agreement or any other ~~Guarantor~~Person or against any collateral security or guarantee related thereto or any right of offset with respect thereto, and any failure by Buyer to make any such ~~demand~~ demand, file suit or otherwise pursue such other rights or remedies or to collect any payments from any such other ~~Guarantor~~seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of any such other ~~Guarantor~~seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve ~~any Guarantor in respect of which~~ Seller if a demand or collection is not made ~~or Guarantors~~ and shall not ~~so released~~ release Seller of ~~their~~ its obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of ~~Requirements of Law~~law, of Buyer against ~~Guarantors~~ Seller (or as used herein, the term “demand” shall include the commencement and continuation of ~~any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents~~legal proceedings), ~~and~~ (v) on disposition by Buyer of any property encumbered by any Purchased Assets or “Purchased Assets” (as defined in the Kensington Repurchase Agreement) or “Pledged Assets” (as defined in the Gloss Loan Agreement), ~~Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor~~ Seller shall be and shall remain jointly and severally liable for any deficiency, (vi) Seller waives (A) any and all notice of the creation, renewal, extension or accrual of any amounts at any time owing to Buyer by any other seller under the “Repurchase Documents” (as defined in the Kensington Repurchase Agreement) or the “Facility Documents” (as defined in the Gloss Loan Agreement) and notice of or proof of reliance by Buyer upon Seller or acceptance of the obligations of Seller under this Section 18.27, and all such amounts, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the obligations of Seller under this Agreement, and all dealings between Seller, on the one hand, and Buyer, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the obligations of Seller under this Agreement and the Other Repurchase Agreement, and (B) diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Seller with respect to any amounts at any time owing to Buyer by Seller under the Repurchase Documents or any other seller under the “Repurchase Documents” (as defined in the Kensington Repurchase Agreement) or the “Facility Documents” (as defined in the Gloss Loan Agreement), and (vii) Seller shall continue to be liable under this Section 18.27 without regard to (A) the validity, regularity or enforceability of any other provision of this Agreement, the Other Repurchase Agreement, any other Repurchase Document or any other “Repurchase Document” (as defined in the Kensington Repurchase Agreement) or the “Facility Documents” (as defined in the Gloss Loan Agreement), any amounts at any time owing to Buyer by Seller under the Repurchase Documents or any seller under the “Repurchase Documents” (as defined in the Kensington Repurchase Agreement) or the “Facility Documents” (as defined in the Gloss Loan Agreement), or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by Buyer, (B) any defense, set off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by Seller against Buyer, or (iii) any other circumstance whatsoever (with or without notice to or knowledge of Seller) which constitutes, or might be construed to constitute, an equitable or legal discharge of Seller for any amounts owing to Buyer by Seller under the Repurchase Documents, or of any seller under the “Repurchase Documents” (as defined in the Kensington Repurchase Agreement) or the “Facility Documents” (as defined in the Gloss Loan Agreement), in bankruptcy or in any other instance.

Appears in 3 contracts

Samples: Master Repurchase and Securities Contract (Blackstone Mortgage Trust, Inc.), Master Repurchase and Securities Contract (Blackstone Mortgage Trust, Inc.), Master Repurchase and Securities Contract (Blackstone Mortgage Trust, Inc.)

Joint and Several Obligations. Each Guarantor agrees that the obligations of the “Guarantors” hereunder and under the other Transaction Documents are joint and several obligations of each of the Guarantors. Each Guarantor further specifically agrees that it shall not be necessary or required, and that no Guarantor shall be entitled to require, before or as a condition precedent to the enforcement of the obligations of such Guarantor hereunder or under the other Transaction Documents, that Collateral Agent or any Holder or any other Person: (a) ~~At all times when there is more than one Guarantor under this Guaranty, each Guarantor hereby acknowledges and agrees that (i) each Guarantor shall be jointly and severally liable~~ make any effort to ~~Buyer to~~ enforce the maximum extent permitted by Requirements of Law for all Guarantor Liabilities, (ii) the liability of each Guarantor (A) shall be absolute and unconditional and shall remain in full force and effect (or be reinstated) until the Guaranteed Indebtedness shall have been fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration of any applicable preference or similar period pursuant to any Insolvency Law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by Buyer, and (B) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any of the following, whether or not with notice to or the consent of each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement of the time for payment or performance by any other Guarantor of any of its obligations under this Agreement or ~~renewal~~ the other Transaction Documents, or ~~refinancing~~(b) foreclose against or seek to realize upon collateral security or other credit support, if any, now or hereafter existing, for the Obligations or any obligations of any of the Repurchase Obligations, Guarantor Liabilities, (2) the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer of any Purchased Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents Guarantors under this Agreement or the ~~Guarantor Liabilities~~ other Transaction Documents, or (~~in each case, whether with~~ c) file suit or ~~without consideration)~~ proceed to obtain or ~~the acceptance by Buyer of any additional collateral or the availability or claimed availability of~~ assert a claim for personal judgment against any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the Repurchase Obligations or the Guarantor Liabilities, whether by Buyer or in connection with any Insolvency Proceeding affecting any Guarantor or any other Person ~~who,~~ liable for payment or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents or any part of the foregoing, or (5) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section 6.28, result in the release or discharge of any or all of Guarantors from the performance ~~or observance~~ of any of the ~~Guarantor Liabilities, (iii) Buyer shall not be required first to initiate any suit~~ Obligations or to exhaust its remedies against any Guarantor or any other Person to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any of the ~~foregoing, each Guarantor shall be and remain directly and unconditionally liable for all sums due~~ obligations of any of the Guarantors under this ~~Guaranty~~Agreement or the other Transaction Documents, or (ivd) ~~when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on~~ exercise or assert any other ~~Guarantor~~right or remedy to which Collateral Agent, ~~and~~ the Holders or any ~~failure by Buyer to make~~ other person is or may be entitled in connection with this Agreement or the other Transaction Documents, the Obligations, or any ~~such demand~~ security or ~~to collect~~ other guaranty therefor, or (e) assert of file any ~~payments from any~~ claim against the assets of the other Guarantor, or any ~~release~~ other person liable for the Obligations or any of the obligations of any ~~such~~ of the Guarantors under this Agreement or the other Guarantor, shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or impliedTransaction Documents, or any part thereof. Each Guarantor hereby unconditionally waives any requirement that, as a ~~matter~~ condition precedent to the enforcement of ~~Requirements~~ the obligations of ~~Law~~such Guarantor hereunder or under the other Transaction Documents, ~~of Buyer against Guarantors (~~the other Guarantors, the Collateral Agent, the Collateral Agent or any Holder be joined as parties to any proceedings for the enforcement of any ~~Guarantor against another Guarantor~~ provision of this Agreement or ~~Seller, Pledgor or any~~ the other ~~Person obligated under the Repurchase~~ Transaction Documents), and (v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally liable for any deficiency.

Appears in 2 contracts

Samples: Subsidiary Guaranty (Shuttle Pharmaceuticals Holdings, Inc.), Subsidiary Guaranty (Genius Group LTD)

Joint and Several Obligations. ~~(a) At all times when there is more than one Guarantor under this Guaranty, each Guarantor hereby acknowledges and agrees that (i) each Guarantor~~ Each of the Borrowers shall be jointly and severally liable hereunder and under each of the other Loan Documents with respect to ~~Buyer~~ all Obligations of any other of the Borrowers, regardless of which of the Borrowers actually receives the proceeds of any of the Loans or the benefit of any other extensions of credit hereunder, or the manner in which the Borrowers, the Administrative Agent, any Issuing Bank or any of the Lenders account therefor in their respective books and records. Each such Borrower’s obligations and liabilities with respect to proceeds of Loans which it receives or Letters of Credit issued for its account, and related fees, costs and expenses, and each such Borrower’s obligations and liabilities arising as a result of the joint and several liability of the Borrowers hereunder with respect to proceeds of any Loans received by or Letters of Credit issued for the account of any of the other Borrowers, together with the related fees, costs and expenses, shall be primary and distinct obligations of such Borrower. Neither the joint and several liability of, nor any Liens now or hereafter granted to the ~~maximum extent permitted~~ Administrative Agent hereunder or under any of the other Loan Documents by ~~Requirements~~ any of ~~Law for all Guarantor Liabilities~~the Borrowers, ~~(ii) the liability of each Guarantor~~ shall be impaired or released by (A) ~~shall be absolute and unconditional and shall remain in full force and effect~~ the failure of the Administrative Agent, any Issuing Bank or any Lender, or any successors or assigns thereof, to assert any claim or demand or to exercise or enforce any right, power or remedy against any other Borrower, any other Loan Party, any other Person, any collateral security or otherwise; (B) any extension or ~~be reinstated~~renewal for any period (whether or not longer than the original period) until the Guaranteed Indebtedness shall have been fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration or exchange of any ~~applicable preference~~ of the Obligations or ~~similar period pursuant to~~ the release or compromise of any ~~Insolvency Law~~obligation of any nature of any Person with respect thereto; (C) the surrender, release or ~~at law or in equity, without any claim having been made before the expiration~~ exchange of ~~such period asserting an interest in~~ all or any part of any ~~payment(s) received by Buyer~~collateral now or hereafter securing payment, and (B) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any of the following, whether or not with notice to or the consent of each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement of the time for payment or performance ~~or renewal or refinancing)~~ and/or observance of any of the ~~Repurchase Obligations, Guarantor Liabilities,~~ Obligations or the compromise or extension or renewal for any period (2whether or not longer than the original period) ~~the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer~~ of any Purchased Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities (in each case, whether with or without consideration) or the acceptance by Buyer obligations of any ~~additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release~~ nature of any Person ~~primarily~~ with respect to any such property; (D) any action or ~~secondarily liable~~ inaction on the part of the Administrative Agent, any Issuing Bank or any Lender, or any other event or condition with respect to any other Borrower, including any such action or inaction or other event or condition, which might otherwise constitute a defense available to, or a discharge of, such other Borrower, or a guarantor or surety of or for any or all of the Obligations; and (E) any other act, matter or thing (other than payment or performance of the Obligations) which would or might, in the absence of this provision, operate to release, discharge or otherwise prejudicially affect the obligations of such or any other Borrower. No Borrower or other Loan Party shall exercise any right of subrogation, reimbursement, payment or contribution against any other Borrower or Loan Party until all Obligations have been indefeasibly paid in full in cash. Each Borrower hereby waives any right to enforce any remedy which the Administrative Agent, any Lender or any Issuing Bank now has or may hereafter have against any of the Borrowers or of all or any part of the ~~Repurchase Obligations~~ Obligations. Each Borrower hereby waives any benefit of, and any right to participate in, any security or the Guarantor Liabilities, whether by Buyer or in connection with any Insolvency Proceeding affecting any Guarantor or any other Person who, or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents or any part of the foregoing, or (5) collateral given to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section 6.28, result in the release or discharge of any or all of Guarantors from the performance or observance Administrative Agent to secure payment of any of the Guarantor Liabilities, (iii) Buyer shall not be required first to initiate any suit or to exhaust its remedies against any Guarantor or any other Person to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, each Guarantor shall be and remain directly and unconditionally liable for all sums due under this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantor, and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor, or any release of any such other Guarantor, shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents), and (v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally liable for any deficiencyObligations.

Appears in 2 contracts

Samples: Credit Agreement (Allscripts Healthcare Solutions Inc), Credit Agreement (Allscripts-Misys Healthcare Solutions, Inc.)

Joint and Several Obligations. ~~(a) At all times when there~~ Notwithstanding anything to the contrary herein, each of the Aggregator Borrower and Co-Borrower is ~~more than one Guarantor~~ accepting joint and several liability hereunder and under the other Loan Documents, the agreements in respect of Secured Cash Management Obligations and Other Secured Obligations and the agreements in respect of Secured Swap Obligations in consideration of the financial accommodation to be provided by the Lenders, the Issuing Banks, any Agent, Lead Arranger or Lender or any Affiliate of any of the foregoing under this ~~Guaranty~~Agreement, the other Loan Documents, the agreements in respect of Secured Cash Management Obligations and Other Secured Obligations and the agreements in respect of Secured Swap Obligations, for the mutual benefit, directly and indirectly, of the Borrower and in consideration of the undertakings of each ~~Guarantor hereby acknowledges~~ Borrower to accept joint and ~~agrees that (i) each Guarantor shall be~~ several liability for the Borrowers. Each Borrower jointly and severally ~~liable to Buyer~~ hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with each other Borrower with respect to the ~~maximum~~ payment and performance of all of the Loan Document Obligations, it being the intention of the parties hereto that all the Loan Document Obligations shall be the joint and several obligations of each Borrower without preferences or distinction between them. If and to the extent that either Borrower shall fail to make any payment with respect to any Loan Document Obligation as and when due or to perform any Loan Document Obligation in accordance with the terms thereof, then in each such event, the other Borrower will make such payment with respect to, or perform, such Loan Document Obligation. The obligations of each Borrower under the provisions of this Section 9.23 constitute full recourse obligations of each Borrower, enforceable against it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever. Except as otherwise expressly provided herein, each Borrower hereby waives, to the extent permitted by applicable Requirements of ~~Law for all Guarantor Liabilities~~Law, ~~(ii)~~ notice of acceptance of its joint and several liability. Except as otherwise expressly provided herein, each Borrower hereby waives, to the liability of each Guarantor (A) shall be absolute and unconditional and shall remain in full force and effect (or be reinstated) until the Guaranteed Indebtedness shall have been fully and indefeasibly paidextent permitted by law, ~~the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration~~ notice of any ~~applicable preference~~ Loan made under this Agreement, notice of occurrence of any Default or ~~similar period pursuant to~~ Event of Default or of any ~~Insolvency Law~~demand for any payment under this Agreement, notice of any action at any time taken or ~~at law~~ omitted by any Lender under or in ~~equity, without any claim having been made before the expiration~~ respect of such period asserting an interest in all or any part of any payment(s) received by Buyer, and (B) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any of the ~~following~~Loan Document Obligations, ~~whether or not~~ any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Agreement. Each Borrower hereby, to the extent permitted by applicable Requirements of Law, assents to and waives notice ~~to or the consent~~ of ~~each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment (including~~ any extension or postponement of the time for the payment of any Loan Document Obligation, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by any Lender at any time or times in respect of any default by each Borrower in the performance or ~~renewal~~ satisfaction of any term, covenant, condition or ~~refinancing)~~ provision of this Agreement, any and all other indulgences whatsoever by any Lender in respect of any of the ~~Repurchase~~ Loan Document Obligations, ~~Guarantor Liabilities~~and the taking, ~~(2) the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release~~addition, substitution or ~~exchange by Buyer~~ release, in whole or in part, at any time or times, of any ~~Purchased Asset, Pledged Collateral or any collateral, property or~~ security for ~~the Repurchase Documents~~ any Loan Document Obligation or the ~~Guarantor Liabilities (~~addition, substitution or release, in each case, whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the Repurchase Obligations or the Guarantor Liabilities, whether by Buyer whole or in ~~connection with any Insolvency Proceeding affecting any Guarantor or any other Person who~~part, ~~or any~~ of ~~whose property, shall at~~ each Borrower. Without limiting the time in question be obligated in respect of the Repurchase Obligations or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents or any part of the foregoing, or (5) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section 6.28, result in the release or discharge of any or all of Guarantors from the performance or observance of any of the Guarantor Liabilities, (iii) Buyer shall not be required first to initiate any suit or to exhaust its remedies against any Guarantor or any other Person to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any generality of the foregoing, each ~~Guarantor shall be and remain directly and unconditionally liable~~ Borrower assents to any other action or delay in acting or failure to act on the part of any Lender, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with the applicable laws or regulations thereunder which might, but for ~~all sums due~~ the provisions of this Section 9.23, afford grounds for terminating, discharging or relieving each Borrower, in whole or in part, from any of its obligations under this ~~Guaranty~~Section 9.23, ~~(iv) when making~~ it being the intention of each Borrower that, so long as any ~~demand hereunder against~~ Loan Document Obligation remains unsatisfied, the obligations of each Borrower under this Section 9.23 shall not be discharged except by performance or payment and then only to the extent of such performance or payment. The obligations of each Borrower under this Section 9.23 shall not be diminished or rendered unenforceable by any ~~Guarantor~~winding up, ~~Buyer may~~reorganization, ~~but shall be under no obligation to~~arrangement, ~~make a~~ liquidation, reconstruction or similar ~~demand on~~ proceeding with respect to any other ~~Guarantor~~Borrower or any Lender. The joint and several liability of each Borrower hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any Borrower or any Lender. The provisions of this Section 9.23 are made solely for the benefit of the Administrative Agent and the other Secured Parties and their respective successors and assigns, and ~~any failure~~ may be enforced by ~~Buyer to make~~ any such ~~demand~~ Person from time to time against each Borrower as often as occasion therefor may arise and without requirement on the part of the Administrative Agent or any other Secured Party first to marshal any of its claims or to ~~collect~~ exercise any ~~payments from~~ of its rights against each Borrower or to exhaust any remedies available to it against each Borrower or to resort to any other ~~Guarantor~~source or means of obtaining payment of any Loan Document Obligation or to elect any other remedy. If at any time, any payment, or any ~~release of any such other Guarantor~~part thereof, ~~shall not relieve any Guarantor~~ made in respect of ~~which a demand~~ any Loan Document Obligation is rescinded or ~~collection is not made~~ must otherwise be restored or ~~Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect~~ returned by the ~~rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor~~ Administrative Agent or any other ~~Person obligated~~ Secured Party upon the insolvency, bankruptcy or reorganization of each Borrower, or otherwise, the provisions of this Section 9.23 will forthwith be reinstated in effect, as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any other Loan Document, to the extent the joint and several obligations of any Borrower shall be adjudicated to be invalid or unenforceable for any reason (including because of any applicable state, provincial or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal, state or provincial and including, without limitation, the ~~Repurchase Documents~~Bankruptcy Code, as now constituted or hereafter amended, or any other Debtor Relief Laws), after taking into account, among other things, such Borrower’s right of contribution and ~~(v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities~~ indemnification from each ~~Guarantor shall be and shall remain jointly and severally liable for any deficiency~~other Loan Party under applicable law.

Appears in 2 contracts

Samples: First Lien Credit Agreement (Clarios International Inc.), First Lien Credit Agreement (Clarios International Inc.)

Joint and Several Obligations. (a) ~~At all times when there~~ Each of the Borrowers expressly represents and acknowledges that it is ~~more than one Guarantor~~ part of a common enterprise with the other Borrowers and that any financial accommodations by the Administrative Agent and the other Lenders to any other Borrower hereunder and under ~~this Guaranty~~the other Loan Documents are and will be of direct and indirect interest, ~~each Guarantor~~ benefit and advantage to the Borrowers. Each Borrower hereby ~~acknowledges and~~ agrees that ~~(i) each Guarantor shall be~~ such Borrower is jointly and severally liable ~~to Buyer~~ for, and hereby absolutely and unconditionally guarantees to the ~~maximum extent permitted~~ Administrative Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by ~~Requirements~~ acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to the Administrative Agent and Lenders by each other Borrower, including, without limitation, the Loans. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of ~~Law for all Guarantor Liabilities~~payment and performance and not of collection, that its obligations under this Section 10.19 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 10.19 shall be absolute, unconditional and irrevocable, irrespective of, and unaffected by, (i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party; (ii) the liability of each Guarantor (A) shall be absolute and unconditional and shall remain in full force and effect (or be reinstated) until the Guaranteed Indebtedness shall have been fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration absence of any ~~applicable preference~~ action to enforce this Agreement (including this Section 10.19), any other Loan Document or ~~similar period pursuant~~ the waiver or consent by the Administrative Agent and Lenders with respect to any Insolvency Law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by Buyer, and (B) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any of the following, whether or not with notice to or the consent of each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement of the time for payment or performance or renewal or refinancing) of any of the Repurchase Obligations, Guarantor Liabilities, (2) the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer of any Purchased Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities (in each case, whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the Repurchase Obligations or the Guarantor Liabilities, whether by Buyer or in connection with any Insolvency Proceeding affecting any Guarantor or any other Person who, or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents or any part of the foregoing, or (5) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section 6.28, result in the release or discharge of any or all of Guarantors from the performance or observance of any of the Guarantor Liabilities, provisions thereof; (iii) ~~Buyer shall not be required first to initiate any suit or to exhaust its remedies against any Guarantor or any other Person to become liable, or against any of~~ the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence insolvency of any ~~of the foregoing, each Guarantor shall be~~ Borrower or Subsidiary; and ~~remain directly and unconditionally liable for all sums due under this Guaranty,~~ (iv) ~~when making~~ any ~~demand hereunder against any Guarantor, Buyer may, but~~ other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be under no obligation to, make a similar demand on any other Guarantor, and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor, or any release of any such other Guarantor, shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunderregarded, and shall ~~not impair or affect~~ be in the ~~rights and remedies~~same position, ~~express or implied, or~~ as ~~a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under~~ principal debtor with respect to the Repurchase Documents), and (v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally liable for any deficiencyObligations guaranteed hereunder.

Appears in 2 contracts

Samples: Credit Agreement (Smith & Wesson Holding Corp), Credit Agreement (Smith & Wesson Holding Corp)

Joint and Several Obligations. (a) At All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted by the Agent, any Lender or the Issuer to any Borrower, failure of the Agent, any Lender or the Issuer to give any Borrower notice of borrowing or any other notice, any failure of the Agent, any Lender or the Issuer to pursue or preserve its rights against any Borrower, the release by the Agent, any Lender or the Issuer of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by the Agent, any Lender or the Issuer to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all ~~times when there is more than one Guarantor under this Guaranty~~suretyship defenses. Without limiting the generality of the foregoing, each ~~Guarantor~~ of the Borrowers hereby acknowledges and agrees that ~~(i) each Guarantor shall be jointly~~ any and ~~severally liable to Buyer to the maximum extent permitted~~ all actions, inactions or omissions by ~~Requirements of Law for all Guarantor Liabilities, (ii) the liability of each Guarantor (A) shall be absolute and unconditional and shall remain in full force and effect (~~any one or be reinstated) until the Guaranteed Indebtedness shall have been fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration of any applicable preference or similar period pursuant to any Insolvency Lawmore, or ~~at law~~ all, of the Borrowers in connection with, related to or ~~in equity, without any claim having been made before the expiration of such period asserting an interest in all~~ otherwise affecting this Agreement or any part of any payment(s) received by Buyer, and (B) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any of the ~~following~~other Loan Documents are the Obligations of, ~~whether or not with notice~~ and inure to or and are binding upon, each and all of the ~~consent~~ Borrowers, jointly and severally. Each covenant, agreement, obligation, representation and warranty of the Borrowers contained herein constitutes the joint and several undertaking of each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement of the time for payment or performance or renewal or refinancing) of any of the Repurchase Obligations, Guarantor Liabilities, (2) the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer of any Purchased Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities (in each case, whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the Repurchase Obligations or the Guarantor Liabilities, whether by Buyer or in connection with any Insolvency Proceeding affecting any Guarantor or any other Person who, or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents or any part of the foregoing, or (5) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section 6.28, result in the release or discharge of any or all of Guarantors from the performance or observance of any of the Guarantor Liabilities, (iii) Buyer shall not be required first to initiate any suit or to exhaust its remedies against any Guarantor or any other Person to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, each Guarantor shall be and remain directly and unconditionally liable for all sums due under this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantor, and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor, or any release of any such other Guarantor, shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents), and (v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally liable for any deficiencyBorrower.

Appears in 2 contracts

Samples: Credit and Security Agreement (Ramaco Resources, Inc.), Credit and Security Agreement (Ramaco Resources, Inc.)

Joint and Several Obligations. (a) At all times ~~when~~ during which there is more than one (1) Guarantor under this Guaranty, each Guarantor hereby acknowledges and agrees that (i) each Guarantor shall be jointly and severally liable to Buyer to the maximum extent permitted by Requirements of Law for all Guarantor Liabilities, (ii) the liability of each Guarantor shall be joint and several and the joint and several obligations of each Guarantor under this Guaranty and the other Credit Documents (Aa) (i) shall be absolute and unconditional and shall remain in full force and effect (or be reinstated) until all the ~~Guaranteed~~ Guarantee Indebtedness shall have been ~~fully and indefeasibly paid~~paid in full, the Guarantor ~~Liabilities~~ Obligations shall have been ~~fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated~~ satisfied in full and the expiration of any applicable preference or similar period pursuant to any ~~Insolvency Law~~bankruptcy, insolvency, reorganization, moratorium or similar law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by ~~Buyer~~the Administrative Agent or the Lenders, and (Bii) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the ~~occurrence~~ happening from time to time of any event, ~~including~~ including, without limitation, any of the following, whether or not with notice to or the consent of ~~each~~ the Borrowers, the Guarantor, the Pledgor or any other Credit Party, (1A) the waiver, compromise, settlement, release, termination or amendment (~~including~~ including, without limitation, any extension or postponement of the time for payment or performance or renewal or refinancing) of any or all of the ~~Repurchase Obligations~~obligations or agreements of any Borrower, ~~Guarantor Liabilities~~the Guarantor, the Pledgor or any other Credit Party under the Credit Agreement or any Credit Document, (2B) the failure to give notice to ~~each Guarantor~~ the Borrowers, the Guarantor, the Pledgor or any other Credit Party of the occurrence of an Event of ~~Default~~Default under any of the Credit Documents, (3C) the release, substitution or exchange by ~~Buyer~~ the Administrative Agent or the Lenders of any ~~Purchased Asset~~or all of the Collateral, Pledged Collateral or any collateral, ~~property~~ Property or security for the ~~Repurchase Documents~~ Guaranty or the ~~Guarantor~~ Guarantee Liabilities (in each case, whether with or without consideration) or the acceptance by ~~Buyer~~ the Administrative Agent or the Lenders of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4D) the release of any Person primarily or secondarily liable for all or any part of the ~~Repurchase~~ Obligations or the ~~Guarantor~~ Guarantee Liabilities, whether by ~~Buyer~~ the Administrative Agent, the Lenders or in connection with any ~~Insolvency Proceeding~~ voluntary or involuntary liquidation, dissolution, receivership, insolvency, bankruptcy, assignment for the benefit of creditors or similar event or proceeding affecting any ~~Guarantor~~ or all of the Borrowers, the Guarantor, the Pledgor, any other Credit Party or any other Person who, or any of whose ~~property~~Property or assets, shall at the time in question be obligated in respect of the ~~Repurchase~~ Obligations or the ~~Guarantor Liabilities, the other duties and obligations under the Repurchase Documents~~ Guarantee Liabilities or any part ~~of the foregoing~~thereof, or (5E) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section ~~6.28~~34, result in the release or discharge of any or all of the Guarantors from the performance or observance of any of obligation, covenant or agreement contained in the Credit Agreement or the Credit Documents; (b) each Guarantor ~~Liabilities, (iii) Buyer~~ expressly agrees that the Administrative Agent and the Lenders shall not be required first to initiate any suit or to exhaust its remedies against the Borrowers, the Guarantor, the Pledgor, any ~~Guarantor~~ other Credit Party or any other Person to become liable, or against any of the ~~Purchased Assets~~Collateral, the Pledged Collateral or any collateral, ~~property~~ security or ~~security~~ Property for ~~the Repurchase Documents~~ this Guaranty or the ~~Guarantor~~ Guarantee Liabilities, in order to enforce this Guaranty or ~~other Repurchase~~ the Credit Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, each Guarantor shall be and remain directly and ~~unconditionally~~ primarily liable for all sums due under this ~~Guaranty~~Guaranty or any of the Credit Documents; and, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantor, and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor, or any release of any such other Guarantor, shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents), and (vc) on disposition by ~~Buyer~~ the Administrative Agent or the Lenders of any ~~property~~ Property encumbered by any ~~Purchased Assets~~Collateral, the Pledged Collateral or any collateral, ~~property~~ Property or security for this Guaranty or the ~~Guarantor Liabilities~~ Guarantee Liabilities, each Guarantor shall be and shall remain jointly and severally liable for any deficiency.

Appears in 2 contracts

Samples: Guaranty Agreement (Northstar Realty), Limited Guaranty Agreement (Northstar Realty)

Joint and Several Obligations. Each permitted subtenant or assignee shall assume all obligations of Tenant under this Lease with respect to the Premises, or such portion thereof as may be covered by the sublease or assignment entered into by such party, and, if the Original Tenant is not conducting business in any portion of the Building, such permitted subtenant or assignee shall, if Landlord so elects, make direct payment to Landlord of the Rent in the amount set forth in the sublease or assignment, unless otherwise agreed in writing by the parties thereto, and the performance of all of the terms, covenants, conditions, and agreements herein contained on Tenant’s part to be performed with respect to the Premises or such subleased space, as the case may be. No Transfer shall be valid and no transferee shall take possession of the Premises or any part thereof unless, within ten (10) days after the execution of the documentary evidence thereof, Tenant shall deliver to Landlord a duly executed duplicate original of the Transfer instrument in a form reasonably satisfactory to Landlord that (a) ~~At all times when there is more than one Guarantor under this Guaranty, each Guarantor hereby acknowledges and agrees~~ provides that ~~(i) each Guarantor shall be jointly and severally liable to Buyer~~ the transferee assumes Tenant’s obligations for the payment of Rent to the ~~maximum~~ extent ~~permitted by Requirements~~ set forth in the sublease or assignment (or the allocable portion thereof, in the case of ~~Law~~ a sublease of a portion of the Premises) and for ~~all Guarantor Liabilities~~the full and faithful observance and performance of the covenants, terms and conditions contained herein, applicable to the Premises in the event of an assignment or applicable to the subleased space in the event of a sublease, (iib) provides that the ~~liability~~ transferee will, at Landlord’s election, attorn directly to Landlord if Landlord will recognize the sublease or assignment, as the case may be, and not disturb the subtenant’s or assignee’s, as the case may be, right to possession of ~~each Guarantor (A) shall be absolute~~ the Premises and ~~unconditional and shall remain~~ provide all services required by this Lease in ~~full force and effect (or be reinstated) until~~ the ~~Guaranteed Indebtedness shall have been fully and indefeasibly paid,~~ event Tenant’s Lease is terminated for any reason on the ~~Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged,~~ terms set forth in the ~~Repurchase Documents have been terminated and the expiration~~ instrument of any applicable preference or similar period pursuant to any Insolvency Law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by Buyertransfer, and (Bc) ~~until~~ contains such ~~payment has been made and~~ other non-financial assurances as is then customarily required by Landlord’s first mortgage lenders, the form for which will be provided to Tenant on request. The failure or refusal of a transferee to execute such ~~obligations satisfied,~~ an instrument of assumption shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any of the following, whether or not with notice to or the consent of each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement of the time for payment or performance or renewal or refinancing) of any of the Repurchase Obligations, Guarantor Liabilities, (2) the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer of any Purchased Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities (in each case, whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the Repurchase Obligations or the Guarantor Liabilities, whether by Buyer or in connection with any Insolvency Proceeding affecting any Guarantor or any other Person who, or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents or any part of the foregoing, or (5) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section 6.28, result in the release or discharge ~~of any or all of Guarantors~~ the transferee from ~~the performance or observance of any of the Guarantor Liabilities, (iii) Buyer shall not be required first to initiate any suit or to exhaust~~ its remedies against any Guarantor or any other Person to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, each Guarantor shall be and remain directly and unconditionally liable for all sums due under this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantor, and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor, or any release of any such other Guarantor, shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents), and (v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally liable for any deficiencyset forth above.

Appears in 2 contracts

Samples: Letter (Riverbed Technology, Inc.), Riverbed Technology, Inc.

Joint and Several Obligations. ~~(a) At all times when there~~ Each Borrower is ~~more than one Guarantor~~ accepting joint and several liability hereunder and under the other Loan Documents, the Secured Hedge Agreements and the Secured Treasury Management Agreements in consideration of the financial accommodation to be provided by the Lenders, the L/C Issuers, any Agent, Arranger, the 2020 Incremental Lead Arrangers, the 2021 Incremental Lead Arrangers or Lender or any Affiliate of any of the foregoing and the Hedge Banks under this ~~Guaranty~~Agreement, ~~each Guarantor hereby acknowledges~~ the other Loan Documents, the Secured Hedge Agreements and ~~agrees that (i) each Guarantor shall be~~ the Secured Treasury Management Agreements, for the mutual benefit, directly and indirectly, of the other Borrower and in consideration of the undertakings of the other Borrower to accept joint and several liability for such Borrower. Each Borrower jointly and severally ~~liable to Buyer~~ hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrower with respect to the ~~maximum~~ payment and performance of all of the Obligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction between them. If and to the extent that any Borrower shall fail to make any payment with respect to any Obligation as and when due or to perform any Obligation in accordance with the terms thereof, then in each such event, the other Borrower will make such payment with respect to, or perform, such Obligation. The obligations of each Borrower under the provisions of this Section 11.22 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever. Except as otherwise expressly provided herein, each Borrower hereby waives, to the extent permitted by ~~Requirements~~ applicable law, notice of ~~Law for all Guarantor Liabilities~~acceptance of its joint and several liability. Except as otherwise expressly provided herein, ~~(ii)~~ each Borrower hereby waives, to the liability of each Guarantor (A) shall be absolute and unconditional and shall remain in full force and effect (or be reinstated) until the Guaranteed Indebtedness shall have been fully and indefeasibly paidextent permitted by law, ~~the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration~~ notice of any ~~applicable preference~~ Loan made under this Agreement, notice of occurrence of any Default or ~~similar period pursuant to~~ Event of Default or of any ~~Insolvency Law~~demand for any payment under this Agreement, notice of any action at any time taken or ~~at law~~ omitted by any Lender under or in ~~equity, without any claim having been made before the expiration~~ respect of such period asserting an interest in all or any part of any payment(s) received by Buyer, and (B) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any of the ~~following~~Obligations, ~~whether or not~~ any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Agreement. Each Borrower hereby assents to, and waives notice of, to or the ~~consent of each Guarantor~~extent permitted by applicable law, ~~(1) the waiver, compromise, settlement, release, termination or amendment (including~~ any extension or postponement of the time for the payment of any Obligation, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by any Lender at any time or times in respect of any default by the other Borrower in the performance or ~~renewal~~ satisfaction of any term, covenant, condition or ~~refinancing)~~ provision of this Agreement, any and all other indulgences whatsoever by any Lender in respect of any of the ~~Repurchase~~ Obligations, ~~Guarantor Liabilities~~and the taking, ~~(2) the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release~~addition, substitution or ~~exchange by Buyer~~ release, in whole or in part, at any time or times, of any ~~Purchased Asset, Pledged Collateral or any collateral, property or~~ security for ~~the Repurchase Documents~~ any Obligation or the ~~Guarantor Liabilities (~~addition, substitution or release, in ~~each case~~whole or in part, whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the ~~Repurchase Obligations or~~ other Borrower. Without limiting the Guarantor Liabilities, whether by Buyer or in connection with any Insolvency Proceeding affecting any Guarantor or any other Person who, or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents or any part of the foregoing, or (5) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section 6.28, result in the release or discharge of any or all of Guarantors from the performance or observance of any of the Guarantor Liabilities, (iii) Buyer shall not be required first to initiate any suit or to exhaust its remedies against any Guarantor or any other Person to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any generality of the foregoing, each ~~Guarantor shall be and remain directly and unconditionally liable~~ Borrower assents to any other action or delay in acting or failure to act on the part of any Lender, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with the applicable laws or regulations thereunder which might, but for ~~all sums due~~ the provisions of this Section 11.22, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this ~~Guaranty~~Section 11.22, ~~(iv) when making~~ it being the intention of each Borrower that, so long as any ~~demand~~ Obligation remains unsatisfied, the obligations of such Borrower under this Section 11.22 shall not be discharged except by performance or payment and then only to the extent of such performance or payment. The obligations of each Borrower under this Section 11.22 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Borrower or any Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any Borrower or any Lender. The provisions of this Section 11.22 are made solely for the benefit of the Administrative Agent and the other Secured Parties and their respective successors and assigns, and may be enforced by any such Person from time to time against any ~~Guarantor, Buyer may, but shall be under no obligation to, make a similar demand~~ Borrower as often as occasion therefor may arise and without requirement on the part of the Administrative Agent or any other ~~Guarantor, and~~ Secured Party first to marshal any ~~failure by Buyer to make any such demand~~ of its claims or to ~~collect~~ exercise any ~~payments from~~ of its rights against the other Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other ~~Guarantor~~source or means of obtaining payment of any Obligation or to elect any other remedy. If at any time, any payment, or any ~~release of any such other Guarantor~~part thereof, ~~shall not relieve any Guarantor~~ made in respect of ~~which a demand~~ any Obligation, is rescinded or ~~collection is not made~~ must otherwise be restored or ~~Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect~~ returned by the ~~rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor~~ Administrative Agent or any other ~~Person obligated~~ Secured Party upon the insolvency, bankruptcy or reorganization of any Borrower, or otherwise, the provisions of this Section 11.22 will forthwith be reinstated in effect, as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any other Loan Document, to the extent the joint and several obligations of any Borrower shall be adjudicated to be invalid or unenforceable for any reason (including because of any applicable state, provincial or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal, state or provincial and including, without limitation, Title 11 of the ~~Repurchase Documents~~United States Code, as now constituted or hereafter amended, or any other Debtor Relief Laws), after taking into account, among other things, such Xxxxxxxx’s right of contribution and ~~(v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities~~ indemnification from each ~~Guarantor shall be and shall remain jointly and severally liable for any deficiency~~other Loan Party under applicable law.

Appears in 2 contracts

Samples: Credit Agreement (APi Group Corp), Credit Agreement (APi Group Corp)

Joint and Several Obligations. (a) ~~At all times when there is more than one Guarantor under this Guaranty, each Guarantor~~ Each Borrower hereby acknowledges and agrees that (i) each ~~Guarantor~~ Borrower shall be jointly and severally liable to ~~Buyer~~ Lender to the maximum extent permitted by Requirements of Law for all ~~Guarantor Liabilities~~Secured Obligations, (ii) the liability of each ~~Guarantor~~ Borrower with respect to the Secured Obligations (A) shall be absolute and unconditional and shall remain in full force and ~~effect (or~~ effect, and be reinstated) , until ~~the Guaranteed Indebtedness~~ all Secured Obligations shall have been ~~fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly~~ paid, performed ~~and discharged~~and/or satisfied, ~~the Repurchase Documents have been terminated and the expiration of any applicable preference or similar period pursuant to any Insolvency Law~~as applicable, ~~or at law or~~ in ~~equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by Buyer~~full, and (B) until such ~~payment~~ payment, performance and/or satisfaction, as applicable, has ~~been made and such obligations satisfied~~occurred, shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any of the following, whether or not with notice to or the consent of ~~each Guarantor~~any Borrower, (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement of the time for ~~payment or performance or~~ payment, performance, satisfaction, renewal or refinancing) of any of the ~~Repurchase~~ Secured Obligations (other than a waiver, compromise, settlement, release or termination in full of the Secured Obligations~~, Guarantor Liabilities~~), (2) the failure to give notice to ~~each Guarantor~~ any Borrower of the occurrence of ~~an Event of Default~~any nonpayment or other default, (3) the failure to make any demand for payment of any amounts owing to Lender by any other Borrower, (4) the release, substitution or exchange by ~~Buyer~~ Lender of any ~~Purchased Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities~~ Underlying Loan (~~in each case,~~ whether with or without consideration) or the acceptance by ~~Buyer~~ Lender of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any ~~nonperfection~~ non-perfection or other impairment of collateral, (45) the release of any Person primarily or secondarily liable for all or any part of the ~~Repurchase Obligations or the Guarantor Liabilities~~Secured Obligations, whether by ~~Buyer~~ Lender or in connection with any ~~Insolvency Proceeding~~ Bankruptcy Action affecting any ~~Guarantor~~ Borrower or any other Person who, or any of whose property, shall at the time in question be obligated in respect of the ~~Repurchase~~ Secured Obligations ~~or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents~~ or any part ~~of the foregoing~~thereof, or (56) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section ~~6.28~~11.17, result in the release or discharge of any or all ~~of Guarantors~~ Borrowers from the performance or observance of any ~~of the Guarantor Liabilities~~Secured Obligation, (iii) ~~Buyer~~ Lender shall not be required first to initiate any suit or to exhaust its remedies against any ~~Guarantor~~ Borrower or any other Person to become liable, or against any of the ~~Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities~~Underlying Loans, in order to enforce ~~this Guaranty or other Repurchase~~ the Loan Documents and each ~~Guarantor~~ Borrower expressly agrees that, notwithstanding the occurrence of any of the foregoing, each ~~Guarantor~~ Borrower shall be and remain directly and ~~unconditionally~~ primarily liable for all sums due under ~~this Guaranty~~any of the Loan Documents, (iv) when making any demand hereunder against any ~~Guarantor~~Borrower, ~~Buyer~~ Lender may, but shall be under no obligation to, make a similar demand on any other ~~Guarantor~~Borrower, and any failure by ~~Buyer~~ Lender to make any such demand or to collect any payments from any other ~~Guarantor~~Borrower, or any release of any such other ~~Guarantor,~~ Borrower shall not relieve any ~~Guarantor~~ Borrower in a respect of which a demand or collection is not made or ~~Guarantors~~ Borrowers not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of ~~Requirements of Law~~law, of ~~Buyer~~ Lender against ~~Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents)~~Borrowers, and (v) on disposition by ~~Buyer~~ Lender of any ~~property encumbered by any Purchased Assets~~Underlying Loan, ~~Pledged Collateral or any collateral, property or security for the Guarantor Liabilities~~ each ~~Guarantor~~ Borrower shall be and shall remain jointly and severally liable for any ~~deficiency~~deficiency to the extent set forth in this Agreement and the other Loan Documents.

Appears in 2 contracts

Samples: Loan and Security Agreement (NexPoint Real Estate Finance, Inc.), Loan and Security Agreement (NexPoint Real Estate Finance, Inc.)

Appears in 2 contracts

Samples: Loan and Security Agreement (Kinetek Inc), Loan and Security Agreement (Kinetek Inc)

Joint and Several Obligations. ~~(a) At all times when there is more than one Guarantor under this Guaranty, each Guarantor hereby acknowledges and agrees that (i) each Guarantor~~ Each of the Makers shall be jointly and severally liable ~~to Buyer~~ hereunder regardless of which of the Makers actually receives the proceeds of any indebtedness evidenced hereby, or the manner in which the Makers, the Administrative Agent or any of the Lenders account therefor in their respective books and records. Each Maker’s obligations and liabilities with respect to the ~~maximum extent permitted~~ indebtedness evidenced hereby, and each Maker’s obligations and liabilities arising as a result of the joint and several liability of the Makers hereunder, shall be primary and distinct obligations of such Maker. The joint and several liability of each Maker hereunder shall be impaired or released by ~~Requirements~~ (i) any failure of ~~Law for all Guarantor Liabilities~~the Payee, the Administrative Agent, any Issuing Bank or any other Lender, or any successors or assigns thereof, to assert any claim or demand or to exercise or enforce any right, power or remedy against any other Maker, any other Loan Party, any other Person, any collateral security or otherwise; (ii) any extension or renewal for any period (whether or not longer than the ~~liability of each Guarantor (A~~original period) ~~shall be absolute and unconditional and shall remain in full force and effect (~~or be reinstated) until the Guaranteed Indebtedness shall have been fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration exchange of any ~~applicable preference~~ of the indebtedness evidenced hereby or ~~similar period pursuant to~~ the release or compromise of any ~~Insolvency Law~~obligation of any nature of any Person with respect thereto; (iii) any surrender, release or ~~at law or in equity, without any claim having been made before the expiration~~ exchange of ~~such period asserting an interest in~~ all or any part of any ~~payment(s) received by Buyer~~collateral now or hereafter securing payment, and (B) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any of the following, whether or not with notice to or the consent of each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement of the time for payment or performance ~~or renewal or refinancing)~~ and/or observance of any of the ~~Repurchase Obligations, Guarantor Liabilities,~~ indebtedness evidenced hereby or the compromise or extension or renewal for any period (2whether or not longer than the original period) ~~the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer~~ of any Purchased Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities (in each case, whether with or without consideration) or the acceptance by Buyer obligations of any ~~additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release~~ nature of any Person ~~primarily~~ with respect to any such property; (iv) any action or ~~secondarily liable for all or any~~ inaction on the part of the ~~Repurchase Obligations or~~ Payee, the ~~Guarantor Liabilities~~Administrative Agent, ~~whether by Buyer or in connection with~~ any ~~Insolvency Proceeding affecting any Guarantor~~ Issuing Bank or any other ~~Person who~~Lender, or any other event or condition with respect to any other Maker, including any such action or inaction or other event or condition, which might otherwise constitute a defense available to, or a discharge of, such other Maker, or a guarantor or surety of ~~whose property, shall at the time in question be obligated in respect~~ or for any or all of the ~~Repurchase Obligations~~ indebtedness evidenced hereby; and (v) any other act, matter or ~~the Guarantor Liabilities, the~~ thing (other ~~duties and obligations under the Repurchase Documents~~ than payment or ~~any part~~ performance of the ~~foregoing,~~ indebtedness evidenced hereby) which would or ~~(5) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would~~might, in the absence of this ~~Section 6.28~~provision, ~~result in~~ operate to release, discharge or otherwise prejudicially affect the ~~release or discharge~~ obligations of any or all of Guarantors from the performance or observance of any of the Guarantor Liabilities, (iii) Buyer shall not be required first to initiate any suit or to exhaust its remedies against any Guarantor such or any other Person to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, each Guarantor shall be and remain directly and unconditionally liable for all sums due under this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantor, and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor, or any release of any such other Guarantor, shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents), and (v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally liable for any deficiencyMaker.

Appears in 2 contracts

Samples: Credit Agreement (Allscripts Healthcare Solutions Inc), Credit Agreement (Allscripts-Misys Healthcare Solutions, Inc.)

Joint and Several Obligations. ~~(a) At all times when there~~ Each Borrower acknowledges that it is ~~more than one Guarantor under this Guaranty, each Guarantor hereby acknowledges and agrees that (i) each Guarantor shall be~~ jointly and severally liable for all of the Obligations and as a result hereby unconditionally guaranties the full and prompt payment when due, whether at maturity or earlier, by reason of acceleration or otherwise, and at all times thereafter, of all Obligations of every kind and nature of each other Borrower to ~~Buyer~~ Agent and Lenders and, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, joint or several, now or hereafter existing, or due or to become due, and howsoever owned, held or acquired by Agent or any Lender. Each Borrower agrees that if this guaranty, or any Liens securing this guaranty, would, but for the application of this sentence, be unenforceable under applicable law, this guaranty and each such Lien shall be valid and enforceable to the maximum extent ~~permitted by Requirements~~ that would not cause this guaranty or such Lien to be unenforceable under applicable law, and this guaranty shall automatically be deemed to have been amended accordingly at all relevant times. Each Borrower hereby agrees that its obligations under this guaranty shall be unconditional, irrespective of ~~Law for all Guarantor Liabilities,~~ (iia) the ~~liability~~ validity or enforceability of ~~each Guarantor (A) shall be absolute and unconditional and shall remain in full force and effect (~~the Obligations or ~~be reinstated) until the Guaranteed Indebtedness shall have been fully and indefeasibly paid~~any part thereof, ~~the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration~~ or of any ~~applicable preference~~ promissory note or ~~similar period pursuant to any Insolvency Law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in~~ other document evidencing all or any part of the Obligations, (b) the absence of any ~~payment(s~~attempt to collect the Obligations from any other Borrower or any Guarantor or other action to enforce the same, (c) ~~received~~ the waiver or consent by ~~Buyer~~Agent or any Lender with respect to any provision of any agreement, instrument or document evidencing or securing all or any part of the Obligations, or any other agreement, instrument or document now or hereafter executed by any other Borrower and delivered to Agent or any Lender (other than a waiver, forgiveness or consent by Agent and Lenders that reduces the amount of any of the Obligations), (d) the failure by Agent or any Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or Collateral for the Obligations, for its benefit, (e) Agent's or any Lender's election, in any proceeding instituted under the United States Bankruptcy Code or any other similar bankruptcy or insolvency legislation, of the application of Section 1111(b)(2) of the United States Bankruptcy Code or any other similar bankruptcy or insolvency legislation, (f) any borrowing or grant of a security interest by any Borrower as debtor-in-possession, under Section 364 of the United States Bankruptcy Code or any other similar bankruptcy or insolvency legislation, (g) the disallowance, under Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or any other similar bankruptcy or insolvency legislation, of all or any portion of Agent's or any Lender's claim(s) for repayment of the Obligations or (h) any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a borrower or a guarantor. Each Borrower hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of receivership or bankruptcy of any other Borrower, protest or notice with respect to the Obligations owed by any other Borrower and all demands whatsoever with respect thereto, and ~~(B) until such payment has been made and such obligations satisfied, shall~~ covenants that this guaranty will not be discharged, ~~affected, modified~~ except by complete and irrevocable payment and performance of the Obligations. No notice to any Borrower or ~~impaired on~~ any other party shall be required for Agent or any Lender to make demand hereunder. Such demand shall constitute a mature and liquidated claim against the ~~occurrence from time to time~~ applicable Borrower. During the existence of any ~~event~~Event of Default, ~~including~~ Agent and Lenders may, at their election, proceed directly and at once, without notice, against all or any of the ~~following~~Borrowers to collect and recover the full amount or any portion of the Obligations, ~~whether~~ without first proceeding against any other Borrower or ~~not~~ any other Person, or any security or collateral for the Obligations. During the existence of an Event of Default, Agent and each Lender shall have the exclusive right to determine the application of payments and credits, if any from any Borrower, any other Person or any security or collateral for the Obligations, on account of the Obligations or of any other liability of any Borrower to Agent or any Lender. Each Borrower hereby waives notice of acceptance of its joint and several liability, notice of any and all Loans made under this Agreement, notice of occurrence of any Event of Default, or of any demand for any payment of any Obligations owed by any other Borrower under this Agreement, notice of any action at any time taken or omitted by Agent, Tranche B Agent or any Lender under or in respect of any of the Obligations, any requirement of diligence and, generally, all formalities of every kind in connection with this Agreement. Each Borrower hereby assents to, and waives notice ~~to or the consent of each Guarantor~~of, ~~(1) the waiver, compromise, settlement, release, termination or amendment (including~~ any extension or postponement of the time for the payment ~~or performance or renewal or refinancing)~~ of any of the ~~Repurchase Obligations~~Obligations hereunder, ~~Guarantor Liabilities, (2)~~ the ~~failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer~~ acceptance of any ~~Purchased Asset~~partial payment thereon, ~~Pledged Collateral~~ any waiver, consent or other action or acquiescence by Agent, Tranche B Agent or any ~~collateral, property~~ Lender at any time or security for the Repurchase Documents or the Guarantor Liabilities (in each case, whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the Repurchase Obligations or the Guarantor Liabilities, whether by Buyer or in connection with any Insolvency Proceeding affecting any Guarantor or any other Person who, or any of whose property, shall at the time in question be obligated times in respect of ~~the Repurchase Obligations or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents or~~ any ~~part of the foregoing, or (5) to the extent permitted~~ default by ~~Requirements of Law,~~ any ~~other event, occurrence, action or circumstance that would,~~ Borrower in ~~the absence of this Section 6.28, result in the release or discharge of any or all of Guarantors from~~ the performance or ~~observance~~ satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by Agent, Tranche B Agent or any Lender in respect of any of the ~~Guarantor Liabilities~~Obligations hereunder, ~~(iii) Buyer shall not be required first to initiate~~ and the taking, addition, substitution or release, in whole or in part, at any ~~suit~~ time or ~~to exhaust its remedies against~~ times, of any ~~Guarantor or any other Person to become liable, or against~~ security for any of ~~the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents~~ such Obligations or the ~~Guarantor Liabilities~~addition, substitution or release, in ~~order to enforce this Guaranty~~ whole or ~~other Repurchase Documents and each Guarantor expressly agrees that~~in part, ~~notwithstanding the occurrence~~ of any Borrower. Without limiting the generality of the foregoing, each ~~Guarantor shall be and remain directly and unconditionally liable~~ Borrower assents to any other action or delay in acting or failure to act on the part of Agent, Tranche B Agent or any Lender, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for ~~all sums due~~ the provisions of this Section 2.14, afford grounds for terminating, discharging or releasing such Borrower, in whole or in part, from any of its obligations under this ~~Guaranty~~Section 2.14, ~~(iv) when making~~ it being the intention of each Borrower that, so long as any ~~demand~~ of the Obligations hereunder ~~against~~ remain unsatisfied, the obligations of such Borrower under this Section 2.14 shall not be discharged except by performance and then only to the extent of such performance. Each Borrower hereby waives all suretyship and similar defenses to its absolute and unconditional liability on the Obligations. The obligations of each Borrower under this Section 2.14 shall not be diminished or rendered unenforceable by any ~~Guarantor~~winding up, ~~Buyer may~~reorganization, ~~but~~ arrangement, liquidation, reconstruction or similar proceeding with respect to any Borrower, Agent, Tranche B Agent or any Lender. The joint and several liability of the Borrowers hereunder shall ~~be under no obligation to~~continue in full force and effect notwithstanding any absorption, ~~make a similar demand on~~ merger, amalgamation or any other ~~Guarantor~~change whatsoever in the name, ~~and~~ membership, constitution or place of formation of any ~~failure by Buyer to make any such demand or to collect any payments from any other Guarantor~~Borrower, Agent, Tranche B Agent or any ~~release~~ Lender. Notwithstanding anything to the contrary set forth in this Section 2.14, it is the intent of ~~any such other Guarantor, shall not relieve any Guarantor~~ the parties hereto that the liability incurred by each Borrower in respect of ~~which~~ the Obligations of the other Borrowers (and any Lien granted by each Borrower to secure such Obligations), not constitute a ~~demand~~ fraudulent conveyance under Section 548 of the United States Bankruptcy Code or ~~collection is~~ a fraudulent conveyance or fraudulent transfer under the provisions of any applicable law of any state or other governmental unit ("Fraudulent Conveyance"). Consequently, each Borrower, Agent and each Lender hereby agree that if a court of competent jurisdiction determines that the incurrence of liability by any Borrower in respect of the Obligations of any other Borrower (or any Liens granted by such Borrower to secure such Obligations) would, but for the application of this sentence, constitute a Fraudulent Conveyance, such liability (and such Liens) shall be valid and enforceable only to the maximum extent that would not ~~made or Guarantors not so released of their obligations or liabilities hereunder~~cause the same to constitute a Fraudulent Conveyance, and this Agreement and the other Loan Documents shall not impair or affect the rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents), and (v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor shall automatically be ~~and shall remain jointly and severally liable for any deficiency~~deemed to have been amended accordingly.

Appears in 2 contracts

Samples: Loan and Security Agreement (Falcon Products Inc /De/), Loan and Security Agreement (Falcon Products Inc /De/)

Joint and Several Obligations. ~~(a) At all times when there is more than one Guarantor under this Guaranty, each Guarantor hereby acknowledges and agrees that (i) each Guarantor~~ Each of the Makers shall be jointly and severally liable ~~to Buyer~~ hereunder regardless of which of the Makers actually receives the proceeds of any indebtedness evidenced hereby, or the manner in which the Makers, the Administrative Agent or any of the Lenders account therefor in their respective books and records. Each Maker’s obligations and liabilities with respect to the ~~maximum extent permitted~~ indebtedness evidenced hereby, and each Maker’s obligations and liabilities arising as a result of the joint and several liability of the Makers hereunder, shall be primary and distinct obligations of such Maker. The joint and several liability of each Maker hereunder shall be impaired or released by ~~Requirements~~ (i) any failure of ~~Law for all Guarantor Liabilities~~the Payee, the Administrative Agent, any Issuing Bank or any other Lender, or any successors or assigns thereof, to assert any claim or demand or to exercise or enforce any right, power or remedy against any other Maker, any other Loan Party, any other Person, any collateral security or otherwise; (ii) any extension or renewal for any period (whether or not longer than the ~~liability of each Guarantor (A~~original period) ~~shall be absolute and unconditional and shall remain in full force and effect (~~or be reinstated) until the Guaranteed Indebtedness shall have been fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration exchange of any ~~applicable preference~~ of the indebtedness evidenced hereby or ~~similar period pursuant to~~ the release or compromise of any ~~Insolvency Law~~obligation of any nature of any Person with respect thereto; (iii) any surrender, release or ~~at law or in equity, without any claim having been made before the expiration~~ exchange of ~~such period asserting an interest in~~ all or any part of any ~~payment(s) received by Buyer~~collateral now or hereafter securing payment, and (B) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any of the following, whether or not with notice to or the consent of each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement of the time for payment or performance ~~or renewal or refinancing)~~ and/or observance of any of the ~~Repurchase Obligations, Guarantor Liabilities,~~ indebtedness evidenced hereby or the compromise or extension or renewal for any period (2whether or not longer than the original period) ~~the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer~~ of any Purchased Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities (in each case, whether with or without consideration) or the acceptance by Buyer obligations of any ~~additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release~~ nature of any Person ~~primarily~~ with respect to any such property; (iv) any action or ~~secondarily liable for all or any~~ inaction on the part of the ~~Repurchase Obligations or~~ Payee, the ~~Guarantor Liabilities~~Administrative Agent, ~~whether by Buyer or in connection with~~ any ~~Insolvency Proceeding affecting any Guarantor~~ Issuing Bank or any other ~~Person who~~Lender, or any other event or condition with respect to any other Maker, including any such action or inaction or other event or condition, which might otherwise constitute a defense available to, or a discharge of, such other Maker, or a guarantor or surety of ~~whose property, shall at the time in question be obligated in respect~~ or for any or all of the ~~Repurchase Obligations~~ indebtedness evidenced hereby; and (v) any other act, matter or ~~the Guarantor Liabilities, the~~ thing (other ~~duties and obligations under the Repurchase Documents~~ than payment or ~~any part~~ performance of the ~~foregoing,~~ indebtedness evidenced hereby) which would or ~~(5) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would~~might, in the absence of this ~~Section 6.28~~provision, ~~result in~~ operate to release, discharge or otherwise prejudicially affect the ~~release or discharge~~ obligations of any or all of Guarantors from the performance or observance of any of the Guarantor Liabilities, (iii) Buyer shall not be required first to initiate any suit or to exhaust its remedies against any Guarantor such or any other ~~Person~~ Maker. EXHIBIT C-2 ALLSCRIPTS HEALTHCARE SOLUTIONS, INC., a Delaware corporation By: Name: Title: ALLSCRIPTS, LLC, a Delaware limited liability company By: Name: Title: A4 HEALTH SYSTEMS, INC., a North Carolina corporation By: Name: Title: A4 REALTY, LLC, a North Carolina limited liability company By: Name: Title: EXTENDED CARE INFORMATION NETWORK, INC., a Delaware corporation By: Name: Title: MISYS HEALTHCARE SYSTEMS LLC, a North Carolina limited liability company By: Name: Title: EXHIBIT D-1 JOINDER AGREEMENT FOR LOAN GUARANTOR THIS JOINDER AGREEMENT (this “Agreement”), dated as of , 200 , is entered into between , a (the “New Subsidiary”) and JPMORGAN CHASE BANK, N.A., in its capacity as administrative agent (the “Administrative Agent”) under that certain Amended and Restated Credit Agreement, dated as of , 2008 among Allscripts Healthcare Solutions, Inc., a Delaware corporation, Allscripts, LLC, a Delaware limited liability company, A4 Health Systems, Inc., a North Carolina corporation, A4 Realty, LLC, a North Carolina limited liability company, Extended Care Information Network, Inc., a Delaware corporation [and Misys Healthcare Systems LLC, a North Carolina limited liability company] (the “Borrowers”), the Loan Parties party thereto, the Lenders party thereto and the Administrative Agent (as the same may be amended, modified, extended or restated from time to ~~become liable~~time, ~~or against any~~ the “Credit Agreement”). All capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Credit Agreement. The New Borrower and the Administrative Agent, for the benefit of the ~~Purchased Assets~~Lenders, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, each Guarantor shall be and remain directly and unconditionally liable for all sums due under this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantor, and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor, or any release of any such other Guarantor, shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or hereby agree as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents), and (v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally liable for any deficiency.follows:

Appears in 1 contract

Samples: Credit Agreement (Allscripts Healthcare Solutions Inc)

Joint and Several Obligations. ~~(a) At~~ All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted by the Agent, any Lender or the Issuer to any Borrower, failure of the Agent, any Lender or the Issuer to give any Borrower notice of borrowing or any other notice, any failure of the Agent, any Lender or the Issuer to pursue or preserve its rights against any Borrower, the release by the Agent, any Lender or the Issuer of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by the Agent, any Lender or the Issuer to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all ~~times when there is more than one Guarantor under this Guaranty~~suretyship defenses. Without limiting the generality of the foregoing, each ~~Guarantor~~ of the Borrowers hereby acknowledges and agrees that ~~(i)~~ any and all actions, inactions or omissions by any one or more, or all, of the Borrowers in connection with, related to or otherwise affecting this Agreement or any of the other Loan Documents are the Obligations of, and inure to and are binding upon, each ~~Guarantor shall be~~ and all of the Borrowers, jointly and ~~severally liable to Buyer to~~ severally. Each covenant, agreement, obligation, representation and warranty of the ~~maximum extent permitted by Requirements of Law for all Guarantor Liabilities, (ii)~~ Borrowers contained herein constitutes the ~~liability~~ joint and several undertaking of each ~~Guarantor (A) shall~~ Borrower. Each Borrower acknowledges that the Obligations of such Borrower undertaken herein might be ~~absolute and unconditional and shall remain~~ construed to consist, at least in part, of the guaranty of Obligations of the other Borrowers and, in full ~~force~~ recognition of that fact, each Borrower consents and ~~effect (or be reinstated) until~~ agrees that the Guaranteed Indebtedness shall have been fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated Agent and the ~~expiration of~~ Lenders may, at any applicable preference or similar period pursuant to any Insolvency Law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by Buyer, time and ~~(B) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the occurrence~~ from time to ~~time of any event~~time, ~~including any of the following~~without notice or demand, whether before or ~~not with notice~~ after any actual or purported termination, repudiation or revocation of this Agreement by any Borrower, and without affecting the enforceability or continuing effectiveness hereof as to such Borrower: (a) supplement, restate, modify, amend, increase, decrease, extend, renew or ~~the consent of each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement of~~ otherwise change the time for payment or ~~performance~~ the terms of this Agreement or ~~renewal~~ any part thereof, including any increase or ~~refinancing~~decrease of the rate(s) of interest thereon; (b) supplement, restate, modify, amend, increase, decrease or waive, or enter into or give any agreement, approval or consent with respect to, this Agreement or any part thereof, or any of the ~~Repurchase Obligations~~Loan Documents, ~~Guarantor Liabilities~~or any condition, covenant, default, remedy, right, representation or term thereof or thereunder; (2c) accept partial payments; (d) release, reconvey, terminate, waive, abandon, fail to perfect, subordinate, exchange, substitute, transfer or enforce any security or guarantees, and apply any security and direct the ~~failure~~ order or manner of sale thereof as the Agent, in its sole and absolute discretion may determine; (e) release any Person from any personal liability with respect to ~~give notice~~ this Agreement or any part thereof; (f) settle, release on terms satisfactory to ~~each Guarantor~~ the Agent or by operation of applicable law or otherwise liquidate or enforce any security or guaranty in any manner, consent to the transfer of any security and bid and purchase at any sale; or (g) consent to the merger, change or any other restructuring or termination of the ~~occurrence of an Event of Default, (3) the release, substitution~~ corporate or ~~exchange by Buyer~~ partnership existence of any ~~Purchased Asset~~Borrower, ~~Pledged Collateral~~ or any ~~collateral~~other Person, ~~property~~ and correspondingly restructure the Obligations evidenced hereby, and any such merger, change, restructuring or ~~security for~~ termination shall not affect the ~~Repurchase Documents~~ liability of any Borrower or the ~~Guarantor Liabilities (in each case~~continuing effectiveness hereof, ~~whether with or without consideration)~~ or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for enforceability hereof with respect to all or any part of the ~~Repurchase~~ Obligations or the Guarantor Liabilities, whether by Buyer or in connection with any Insolvency Proceeding affecting any Guarantor or any other Person who, or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations or the Guarantor Liabilitiesevidenced hereby. Each Borrower states and acknowledges that: (w) pursuant to this Agreement, the ~~other duties and obligations under the Repurchase Documents or any part of the foregoing, or (5)~~ Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent ~~permitted by Requirements~~ possible as if they were merged into a single corporate entity and that this Agreement reflects the establishment of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section 6.28, result in the release or discharge of any or all of Guarantors from the performance or observance of any of the Guarantor Liabilities, (iii) Buyer shall credit facilities which would not otherwise be ~~required first~~ available to initiate any suit or to exhaust its remedies against any Guarantor or any other Person to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and such Borrower if each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, each Guarantor shall be and remain directly and unconditionally liable for all sums due under this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantor, and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor, or any release of any such other Guarantor, shall Borrower were not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents), and (v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally liable for payment of the Obligations; (x) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (y) it is both a condition precedent to the Obligations of the Agent and the Lenders hereunder and a desire of the Borrowers that each Borrower execute and deliver to the Agent and the Lenders this Agreement; and (z) the Borrowers have requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement. Each Borrower agrees if such Borrower’s joint and several liability hereunder, or if any ~~deficiency~~Liens securing such joint and several liability, would, but for the application of this Section 14.2, be unenforceable under applicable law, such joint and several liability and each such Lien shall be valid and enforceable to the maximum extent that would not cause such joint and several liability or such Lien to be unenforceable under applicable law, and such joint and several liability and such Lien shall be deemed to have been automatically amended accordingly at all relevant times. To the extent that any Borrower shall, under this Agreement as a joint and several obligor, repay any of the Obligations constituting Loans or Advances made to another Borrower hereunder or other Obligations incurred directly and primarily by any other Borrower (an “Accommodation Payment”), then the Borrower making such Accommodation Payment shall be entitled to contribution and indemnification from, and, be reimbursed by, each of the other Borrowers in an amount, for each of such other Borrowers, equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Borrower’s “Allocable Amount” (as defined below) and the denominator of which is the sum of the Allocable Amounts of all of the Borrowers. As of any date of determination, the “Allocable Amount” of each Borrower shall be equal to the maximum amount of liability for Accommodation Payments which could be asserted against such Borrower hereunder without (A) rendering such Borrower “insolvent” within the meaning of Section 101(31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (B) leaving such Borrower with unreasonably small capital or assets, within the meaning of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, Section 4 of the UFTA, or (C) leaving such Borrower unable to pay its debts as they become due within the meaning of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA. All rights and claims of contribution, indemnification and reimbursement under this Section shall be subordinate in right of payment to the prior payment in full of the Obligations. The provisions of this Section shall, to the extent expressly inconsistent with any provision in any Loan Document, supersede such inconsistent provision.

Appears in 1 contract

Samples: Credit and Security Agreement (Ramaco Resources, Inc.)

Joint and Several Obligations. ~~(a) At all times when there is more than one Guarantor under this Guaranty,~~ All obligations and liabilities of each ~~Guarantor hereby acknowledges and agrees that (i) each Guarantor~~ -90- //ex99-1_1622_at.cecc Borrower hereunder shall be ~~jointly~~ joint and ~~severally liable to Buyer to the maximum extent permitted by Requirements of Law for all Guarantor Liabilities~~several; provided, ~~(ii) the liability of each Guarantor (A)~~ however, that Mxxxxxx shall be absolute and unconditional and shall remain in full force and effect (or be reinstated) until the Guaranteed Indebtedness shall have been fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated liable only for its borrowings hereunder and the ~~expiration of~~ interest, fees and other obligations and liabilities allocable thereto; and provided further that, with respect to each Borrower other than the Parent, in any ~~applicable preference~~ action or ~~similar period pursuant to~~ proceeding involving any ~~Insolvency~~ corporate Law, or ~~at law~~ any bankruptcy, insolvency, reorganization or other Law affecting the rights of creditors generally (collectively, the "FRAUDULENT TRANSFER LAWS"), if the obligations of such Borrower hereunder would otherwise, in ~~equity~~each case after giving effect to all other liabilities of such Borrower, contingent or otherwise, that are relevant under the Fraudulent Transfer Laws (specifically excluding, however, any liabilities of such Borrower in respect of intercompany indebtedness to the Parent, other Affiliates of the Parent or other Obligors to the extent that such indebtedness would be discharged in an amount equal to the amount paid by such Borrower hereunder and after giving effect as assets to the value (as determined under the applicable provisions of Fraudulent Transfer Laws) of any agreement providing for an equitable allocation among such Borrower and other Obligors), be held or determined to be void, invalid or unenforceable or subordinated to the claims of any other creditors, on account of the amount of its liability under this Agreement, then, notwithstanding any other provision hereof to the contrary, the amount of such liability shall, without any ~~claim having been made before~~ further action by such Borrower, any Lender, the ~~expiration of such period asserting an interest in all~~ Administrative Agent or any ~~part~~ other Person, be automatically limited and reduced to the highest amount that is valid and enforceable and not subordinated to the claims of ~~any payment(s) received by Buyer, and (B) until~~ other creditors as determined in such ~~payment has been made and such obligations satisfied,~~ action or proceeding. Such reduction shall not ~~be discharged, affected, modified~~ in any way limit or ~~impaired on~~ affect the ~~occurrence from time to time of any event, including any~~ obligations of the ~~following, whether or not with notice~~ remaining Borrowers hereunder. Each Borrower hereby waives any right by which it might be entitled to ~~or the consent~~ require suit on an accrued right of ~~each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement of the time for payment or performance or renewal or refinancing)~~ action in respect of any of the Repurchase Obligations, Guarantor Liabilities, (2) the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer of any Purchased Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities (in each case, whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the Repurchase Obligations or ~~the Guarantor Liabilities, whether by Buyer or in connection with~~ require suit against any ~~Insolvency Proceeding affecting any Guarantor~~ Borrower or any other Person who, or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents or any part of the foregoing, or (5) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section 6.28, result in the release or discharge of any or all of Guarantors from the performance or observance of any of the Guarantor Liabilities, (iii) Buyer shall not be required first to initiate any suit or to exhaust its remedies against any Guarantor Obligor or any other ~~Person~~ Person, whether arising pursuant to ~~become liable~~Section 34.02 of the Texas Business and Commerce Code, as amended, Section 17.001 of the Texas Civil Practice and Remedies Code, as amended, Rule 31 of the Texas Rules of Civil Procedure, as amended, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, each Guarantor shall be and remain directly and unconditionally liable for all sums due under this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantor, and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor, or any release of any such other Guarantor, shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents), and (v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally liable for any deficiencyotherwise.

Appears in 1 contract

Samples: Credit Agreement (Power One Inc)

Joint and Several Obligations. Each Borrower (aother than GKF as and to the extent expressly provided below) ~~At all times when there~~ is ~~more than one Guarantor~~ accepting joint and several liability hereunder in consideration of the financial accommodations to be provided by Lender under this ~~Guaranty~~Agreement, for the mutual benefit, directly and indirectly, of each other Borrower and in consideration of the undertakings of each other Borrower to accept joint and several liability for such Borrower. Each Borrower (other than GKF as and to the extent expressly provided below) hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with each other Borrower with respect to the payment and performance of all of the Obligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each Borrower (other than GKF as and to the extent expressly provided below) without preferences or distinction between any of them. If and to the extent that any such Borrower shall fail to make any payment with respect to any such Obligation as and when due or to perform any Obligation in accordance with the terms thereof, then in each such event, each ~~Guarantor~~ other Borrower will make such payment with respect to, or perform, such Obligation. The obligations of each Borrower (other than GKF as and to the extent expressly provided below) under the provisions of this Section 11.20 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever. Notwithstanding anything in the initial paragraph of this Section 11.20 to the contrary, GKF’s obligations hereunder, and indebtedness and liabilities of GKF evidenced hereby ~~acknowledges~~ and ~~agrees that (i) each Guarantor~~ by the other Loan Documents, shall be ~~jointly and severally liable to Buyer~~ expressly limited to the ~~maximum extent permitted by Requirements~~ GKF Obligations. In this respect, GKF’s obligations hereunder and under the other Loan Documents are several but not joint in that GKF shall have no obligation to pay, nor any indebtedness or liabilities in respect of, the Obligations to the extent, but solely to the extent, not constituting GKF Obligations. GKF and each other Borrower hereby acknowledge and agree that they each shall have joint and several liability as to the GKF Obligations, and that the initial paragraph of ~~Law for all Guarantor Liabilities, (ii) the liability of each Guarantor (A)~~ this Section 11.20 shall ~~be absolute and unconditional and shall remain~~ apply in full ~~force~~ to each Borrower, including GKF, in respect of the GKF Obligations. The provisions of this Section 11.20 are made solely for the benefit of Lender and ~~effect (or be reinstated) until the Guaranteed Indebtedness shall have been fully~~ their Related Persons and ~~indefeasibly paid, the Guarantor Liabilities shall have been fully~~ successors and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration of any applicable preference or similar period pursuant to any Insolvency Law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by Buyerassigns, and ~~(B) until~~ may be enforced by any such ~~payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the occurrence~~ Person from time to time against any Borrower as often as occasion therefor may arise and without requirement on the part of Lender first to marshal any of its claims or to exercise any of its rights against any other Borrower or to exhaust any remedies available to it against any other Borrower or to resort to any other source or means of obtaining payment of any ~~event, including any of the following, whether~~ Obligation or ~~not with notice~~ to or the consent of each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement of the time for payment or performance or renewal or refinancing) of any of the Repurchase Obligations, Guarantor Liabilities, (2) the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer of any Purchased Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities (in each case, whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of elect any other ~~collateral or source of repayment or~~ remedy. If at any ~~nonperfection or other impairment of collateral~~time, ~~(4) the release of~~ any ~~Person primarily or secondarily liable for all~~ payment, or any part thereof, made in respect of any Obligation, is rescinded or must otherwise be restored or returned by Lender upon the ~~Repurchase Obligations~~ insolvency, bankruptcy or reorganization of any Borrower, or otherwise, the ~~Guarantor Liabilities~~provisions of this Section 11.20 will forthwith be reinstated in effect, ~~whether by Buyer~~ as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in ~~connection with~~ any ~~Insolvency Proceeding affecting~~ other Loan Document, to the extent the joint and several obligations of any ~~Guarantor~~ Borrower shall be adjudicated to be invalid or unenforceable for any reason (including because of any applicable state or federal Law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable Law (whether federal or state and including the Bankruptcy Code or any other Person who, or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents or any part of the foregoing, or (5) to the extent permitted by Requirements of Debtor Relief Law, ~~any~~ after taking into account, among other ~~event~~things, ~~occurrence, action or circumstance that would, in the absence~~ such Bxxxxxxx’s right of ~~this Section 6.28, result in the release or discharge of any or all of Guarantors~~ contribution and indemnification from ~~the performance or observance of any of the Guarantor Liabilities, (iii) Buyer shall not be required first to initiate any suit or to exhaust its remedies against any Guarantor or any~~ each other Person to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, each Guarantor shall be and remain directly and unconditionally liable for all sums due Loan Party under this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantor, and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor, or any release of any such other Guarantor, shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of Requirements of applicable Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents), and (v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally liable for any deficiency.

Appears in 1 contract

Samples: Credit Agreement (American Shared Hospital Services)

Joint and Several Obligations. ~~(a) At all times when there is more than one Guarantor~~ Each and every ----------------------------- representation, warranty, covenant and agreement made by either of the Borrowers, hereunder and under ~~this Guaranty, each Guarantor hereby acknowledges and agrees that (i) each Guarantor~~ the other Loan Documents shall be ~~jointly~~ joint and ~~severally liable~~ several, whether or not so expressed, and such obligations of either of the Borrowers shall not be subject to ~~Buyer to~~ any counterclaim, setoff, recoupment or defense based upon any claim either Borrower may have against the ~~maximum extent permitted by Requirements of Law for all Guarantor Liabilities~~other Borrower or the Bank, ~~(ii) the liability of each Guarantor (A) shall be absolute and unconditional~~ and shall remain in full force and effect (or be reinstated) until the Guaranteed Indebtedness shall have been fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration of any applicable preference or similar period pursuant to any Insolvency Law, or at law or in equity, without ~~any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by Buyer~~regard to, and ~~(B) until such payment has been made and such obligations satisfied,~~ shall not be ~~discharged~~released, ~~affected~~discharged or in any way affected by, ~~modified~~ any circumstance or ~~impaired on~~ condition affecting the ~~occurrence from time~~ other Borrower, including without limitation (a) any waiver, consent, extension, renewal, indulgence or other action or inaction under or in respect of this Agreement or any other Loan Document, or any agreement or other document related thereto with respect to ~~time~~ the other Borrower, or any exercise or nonexercise of any ~~event~~right, ~~including any of the following~~remedy, ~~whether~~ power or ~~not with notice to~~ privilege under or the consent of each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement of the time for payment or performance or renewal or refinancing) in respect of any of such agreement or instrument with respect to the ~~Repurchase Obligations~~other Borrower, ~~Guarantor Liabilities, (2)~~ or the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer of any Purchased Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities (in each case, whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the Repurchase Obligations or the Guarantor Liabilities, whether by Buyer or in connection with any Insolvency Proceeding affecting any Guarantor or any other Person who, or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents or any part of the foregoing, or (5) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section 6.28, result in the release or discharge of any or all of Guarantors from the performance or observance of any of the ~~Guarantor Liabilities~~foregoing to Trans-Tech, it being agreed by Trans-Tech that notice in each such case to Alpha shall be sufficient and that no notice to the Borrowers shall be effective without notice to Alpha; (~~iii~~b) ~~Buyer shall not be required first~~ any invalidity or unenforceability, in whole or in part, of any such agreement or instrument with respect to ~~initiate~~ the other Borrower; (c) any ~~suit~~ failure on the part of the other Borrower for any reason to perform or comply with any term of any such agreement or instrument; (d) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to ~~exhaust~~ the other Borrower or its ~~remedies against any Guarantor~~ properties or creditors; or (e) any other ~~Person~~ occurrence whatsoever, whether similar or dissimilar to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, ~~each Guarantor shall be and remain directly and unconditionally liable for all sums due~~ with respect to the other Borrower. Each Borrower hereby waives any requirement of diligence or promptness on the part of the Bank in the enforcement of the Bank's rights hereunder or under ~~this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on~~ any other ~~Guarantor, and~~ Loan Document with respect to the obligations of itself or of the other Borrower. Without limiting the foregoing any failure ~~by Buyer~~ to make any ~~such~~ demand upon, to pursue or SCHEDULE A TITLE OF PROPERTY EXCEPTION (6.12) The equipment leased from AT&T approximately $1,600,000 The equipment leased from ComDisco approximately $3,000,000 The equipment leased from Telogy, Inc. approximately $210,000 The equipment leased from American National Leasing Corp approximately $46,000 The equipment leased from Electro Rent Corporation approximately $185,000 The equipment leased from Digital Equipment Corporation approximately $750,000 The equipment securing the following obligations of the Debtor: Xxxxxxxxx County, Maryland Industrial Development Revenue Bond $2,000,000 dated June 18, 1982. The equipment securing the following obligations of the Debtor: Loan and Security Agreement dated December 15, 1993 between the Debtor and the County Commissioners of Xxxxxxxxx County, Maryland under CDBG Grant Number MD93-ED70 ($960,000) The equipment in an amount of approximately $662,000 securing the obligations of the Debtor with Motorola, Inc. Additional equipment to ~~collect any payments from any other Guarantor~~be purchased with MICRF/Sunny Day Loan for approximately $1,300,000. The equipment purchased by Trans-Tech, ~~or any release of any such other Guarantor~~Inc. under the agreement dated September 21, ~~shall not relieve any Guarantor in respect~~ 1992 between the Ferrite Development Consortium of which Trans-Tech, Inc. is a ~~demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder,~~ member and ~~shall not impair or affect~~ the rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents), and (v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally liable for any deficiencyAdvanced Research Project Agency.

Appears in 1 contract

Samples: Credit Agreement (Alpha Industries Inc)

Joint and Several Obligations. (a) At all times ~~when~~ during which there is more than one ~~Guarantor~~ (1) Seller under this ~~Guaranty~~Agreement, each Guarantor hereby acknowledges and agrees that (i) each Guarantor shall be jointly and severally liable to Buyer to the maximum extent permitted by Requirements of Law for all Guarantor Liabilities, (ii) the liability of each ~~Guarantor~~ Seller shall be joint and several and the joint and several obligations of each Seller under the Repurchase Documents (Aa) (i) shall be absolute and unconditional and shall remain in full force and effect (or be reinstated) until all the ~~Guaranteed Indebtedness~~ Obligations shall have been ~~fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated~~ paid in full and the expiration of any applicable preference or similar period pursuant to any ~~Insolvency Law~~bankruptcy, insolvency, reorganization, moratorium or similar law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by ~~Buyer~~the Purchaser, and (Bii) until such payment has been ~~made and such obligations satisfied~~made, shall not be discharged, affected, modified or impaired on the ~~occurrence~~ happening from time to time of any event, ~~including~~ including, without limitation, any of the following, whether or not with notice to or the consent of ~~each Guarantor~~any Seller, the Guarantor or the Pledgor, (1A) the waiver, compromise, settlement, release, termination or amendment (~~including~~ including, without limitation, any extension or postponement of the time for payment or performance or renewal or refinancing) of any or all of the obligations or agreements of any Seller, the Guarantor or the Pledgor under the Agreement or any Repurchase ~~Obligations, Guarantor Liabilities~~Document, (2B) the failure to give notice to ~~each~~ any Seller, the Guarantor or the Pledgor of the occurrence of an Event of ~~Default~~Default under any of the Repurchase Documents, (3C) the release, substitution or exchange by ~~Buyer~~ the Purchaser of any or all of the Purchased ~~Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities~~ Items (~~in each case,~~ whether with or without consideration) or the acceptance by ~~Buyer~~ the Purchaser of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4D) the release of any Person primarily or secondarily liable for all or any part of the ~~Repurchase Obligations or the Guarantor Liabilities~~Obligations, whether by ~~Buyer~~ the Purchaser or in connection with any ~~Insolvency Proceeding~~ voluntary or involuntary liquidation, dissolution, receivership, insolvency, bankruptcy, assignment for the benefit of creditors or similar event or proceeding affecting any ~~Guarantor~~ or all of any Seller, the Guarantor, the Pledgor or any other Person who, or any of whose ~~property~~Property, shall at the time in question be obligated in respect of the ~~Repurchase~~ Obligations ~~or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents~~ or any part ~~of the foregoing~~thereof, or (5E) to the extent permitted by ~~Requirements of~~ Applicable Law, any other event, occurrence, action or circumstance that would, in the absence of this Section ~~6.28~~13.24, result in the release or discharge of any or all of ~~Guarantors~~ any Seller from the performance or observance of any of obligation, covenant or agreement contained in the ~~Guarantor Liabilities,~~ Agreement or the Repurchase Documents; (~~iii~~b) ~~Buyer~~ each Seller expressly agrees that the Purchaser shall not be required first to initiate any suit or to exhaust its remedies against any ~~Guarantor~~ Seller, the Guarantor, the Pledgor or any other Person to become liable, or against any of the Purchased ~~Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents~~ Items or the ~~Guarantor Liabilities~~Pledged Collateral, in order to enforce this ~~Guaranty~~ Agreement or ~~other~~ the Repurchase Documents and each Seller, the Guarantor and the Pledgor expressly ~~agrees~~ agree that, notwithstanding the occurrence of any of the foregoing, each ~~Guarantor~~ Seller shall be and remain directly and ~~unconditionally~~ primarily liable for all sums due under this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantor, and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor, the Agreement or any ~~release~~ of any such other Guarantor, shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents); and, ~~and~~ (vc) on disposition by ~~Buyer~~ the Purchaser of any ~~property~~ Property encumbered by any Purchased ~~Assets~~Items, ~~Pledged Collateral or any collateral, property or security for the Guarantor Liabilities~~ each ~~Guarantor~~ Seller shall be and shall remain jointly and severally liable for any deficiency.

Appears in 1 contract

Samples: Master Repurchase Agreement (Northstar Realty)

Joint and Several Obligations. ~~(a) At all times when there~~ Each Borrower acknowledges that it is ~~more than one Guarantor under this Guaranty, each Guarantor hereby acknowledges and agrees that (i) each Guarantor shall be~~ jointly and severally liable for all of the Obligations and as a result hereby unconditionally guaranties the full and prompt payment when due, whether at maturity or earlier, by reason of acceleration or otherwise, and at all times thereafter, of all Obligations of every kind and nature of each other Borrower to ~~Buyer~~ Agent and Lenders and, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, joint or several, now or hereafter existing, or due or to become due, and howsoever owned, held or acquired by Agent or any Lender. Each Borrower agrees that if this guaranty, or any Liens securing this guaranty, would, but for the application of this sentence, be unenforceable under applicable law, this guaranty and each such Lien shall be valid and enforceable to the maximum extent ~~permitted by Requirements~~ that would not cause this guaranty or such Lien to be unenforceable under applicable law, and this guaranty shall automatically be deemed to have been amended accordingly at all relevant times. Each Borrower hereby agrees that its obligations under this guaranty shall be unconditional, irrespective of ~~Law for all Guarantor Liabilities,~~ (iia) the ~~liability~~ validity or enforceability of ~~each Guarantor (A) shall be absolute and unconditional and shall remain in full force and effect (~~the obligations or ~~be reinstated) until the Guaranteed Indebtedness shall have been fully and indefeasibly paid~~any part thereof, ~~the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration~~ or of any ~~applicable preference~~ promissory note or ~~similar period pursuant to any Insolvency Law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in~~ other document evidencing all or any part of the Obligations, (b) the absence of any ~~payment(s~~attempt to collect the obligations from any other Borrower or any Guarantor or other action to enforce the same, (c) ~~received~~ the waiver or consent by ~~Buyer~~Agent or any Lender with respect to any provision of any agreement, instrument or document evidencing or securing all or any part of the Obligations, or any other agreement, instrument or document now or hereafter executed by any other Borrower and delivered to Agent or any Lender (other than a waiver, forgiveness or consent by Agent and Lenders that reduces the amount of any of the Obligations), (d) the failure by Agent or any lender to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or Collateral for the Obligations, for its benefit, (e) Agent's or any Lender's election, in any proceeding instituted under the United States Bankruptcy Code or any other similar bankruptcy or insolvency legislation, of the application of Section 1111(b)(2) of the United States Bankruptcy Code or any other similar bankruptcy or insolvency legislation, (f) any borrowing or grant of a security interest by any Borrower as debtor-in-possession, under Section 364 of the United States Bankruptcy Code or any other similar bankruptcy or insolvency legislation, (g) the disallowance, under Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or any other similar bankruptcy or insolvency legislation, of all or any portion of Agent's or any Lender's claim(s) for repayment of the obligations or (h) any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a borrower or a guarantor. Each Borrower hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of receivership or bankruptcy of any other Borrower, protest or notice with respect to the Obligations owed by any other Borrower and all demands whatsoever with respect thereto, and ~~(B) until such payment has been made and such obligations satisfied, shall not~~ covenants that this guaranty will be discharged, ~~affected, modified~~ except by complete and irrevocable payment and performance of the Obligations. No notice to any Borrower or ~~impaired on~~ any other party shall be required for Agent or any Lender to make demand hereunder. Such demand shall constitute a mature and liquidated claim against the ~~occurrence from time to time~~ applicable Borrower. During the existence of any ~~event~~Default, ~~including~~ Agent and Lenders may, at their election, proceed directly and at once, without notice, against all or any of the ~~following~~Borrowers to collect and recover the full amount or any portion of the Obligations, ~~whether~~ without first proceeding against any other Borrower or ~~not~~ any other Person, or any security or collateral for the Obligations. Each Borrower hereby waives notice of acceptance of its joint and several liability, notice of any and all Loans made under this Agreement, notice of occurrence of any Event of Default, or of any demand for any payment of any Obligations owed by any other Borrower under this Agreement, notice of any action at any time taken or omitted by Agent or any Lender under or in respect of any of the Obligations, any requirement of diligence and, generally, all formalities of every kind in connection with Agreement. Each Borrower hereby assents to, and waives notice ~~to or the consent of each Guarantor~~of, ~~(1) the waiver, compromise, settlement, release, termination or amendment (including~~ any extension or postponement of the time for the payment ~~or performance or renewal or refinancing)~~ of any of the ~~Repurchase Obligations~~obligations hereunder, ~~Guarantor Liabilities, (2)~~ the ~~failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer~~ acceptance of any ~~Purchased Asset~~partial payment thereon, ~~Pledged Collateral~~ any waiver, consent or other action or acquiescence by Agent or any ~~collateral, property~~ Lender at any time or security for the Repurchase Documents or the Guarantor Liabilities (in each case, whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the Repurchase Obligations or the Guarantor Liabilities, whether by Buyer or in connection with any Insolvency Proceeding affecting any Guarantor or any other Person who, or any of whose property, shall at the time in question be obligated times in respect of ~~the Repurchase Obligations or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents or~~ any ~~part of the foregoing, or (5) to the extent permitted~~ default by ~~Requirements of Law,~~ any ~~other event, occurrence, action or circumstance that would,~~ Borrower in ~~the absence of this Section 6.28, result in the release or discharge of any or all of Guarantors from~~ the performance or ~~observance~~ satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by Agent or any Lender in respect of any of the ~~Guarantor Liabilities~~Obligations hereunder, ~~(iii) Buyer shall not be required first to initiate~~ and the taking, addition, substitution or release, in whole or in part, at any ~~suit~~ time or ~~to exhaust its remedies against~~ times, of any ~~Guarantor or any other Person to become liable, or against~~ security for any of ~~the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents~~ such Obligations or the ~~Guarantor Liabilities~~addition, substitution or release, in ~~order to enforce this Guaranty~~ whole or ~~other Repurchase Documents and each Guarantor expressly agrees that~~in part, ~~notwithstanding the occurrence~~ of any Borrower. Without limiting the generality of the foregoing, each ~~Guarantor shall be and remain directly and unconditionally liable~~ Borrower assents to any other action or delay in acting or failure to act on the part of Agent or any Lender, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for ~~all sums due~~ the provisions of this Section 2.13, afford grounds for terminating, discharging or releasing such Borrower, in whole or in part, from any of its obligations under this ~~Guaranty~~Section 2.13, ~~(iv) when making~~ it being the intention of each Borrower that, so long as any ~~demand~~ of the Obligations hereunder ~~against~~ remain unsatisfied, the obligations of such Borrower under this Section 2.13 shall not be discharged except by performance and then only to the extent of such performance. Each Borrower hereby waives all suretyship and similar defenses to its absolute and unconditional liability on the Obligations. The obligations of each Borrower under this Section 2.13 shall not be diminished or rendered unenforceable by any ~~Guarantor~~winding up, ~~Buyer may~~reorganization, ~~but~~ arrangement, liquidation, reconstruction or similar proceeding with respect to any Borrower, Agent or any Lender. The joint and several liability of the Borrowers hereunder shall ~~be under no obligation to~~continue in full force and effect notwithstanding any absorption, ~~make a similar demand on~~ merger, amalgamation or any other ~~Guarantor~~change whatsoever in the name, ~~and~~ membership, constitution or place of formation of any ~~failure by Buyer to make any such demand or to collect any payments from any other Guarantor~~Borrower, Agent or any ~~release~~ Lender. Notwithstanding anything to the contrary set forth in this Section 2.13, it is the intent of ~~any such other Guarantor, shall not relieve any Guarantor~~ the parties hereto that the liability incurred by each Borrower in respect of ~~which~~ the Obligations of the other Borrowers (and any Lien granted by each Borrower to secure such Obligations), not constitute a ~~demand~~ fraudulent conveyance under Section 548 of the United States Bankruptcy Code or ~~collection is~~ a fraudulent conveyance or fraudulent transfer under the provisions of any applicable law of any state or other governmental unit ("Fraudulent Conveyance"). Consequently, each Borrower, Agent and each Lender hereby agree that if a court of competent jurisdiction determines that the incurrence of liability by any Borrower in respect of the Obligations of any other Borrower (or any Liens granted by such Borrower to secure such Obligations) would, but for the application of this sentence, constitute a Fraudulent Conveyance, such liability (and such Liens) shall be valid and enforceable only to the maximum extent that would not ~~made or Guarantors not so released of their obligations or liabilities hereunder~~cause the same to constitute a Fraudulent Conveyance, and this Agreement and the other Loan Documents shall not impair or affect the rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents), and (v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor shall automatically be ~~and shall remain jointly and severally liable for any deficiency~~deemed to have been amended accordingly.

Appears in 1 contract

Samples: Loan and Security Agreement (Falcon Products Inc /De/)

Joint and Several Obligations. (a) ~~At all times when there is more than one Guarantor under this Guaranty~~Subject to the provisions of subparagraph (b) below, each ~~Guarantor hereby acknowledges~~ and ~~agrees that (i) each Guarantor~~ every representation, warranty, covenant and agreement made by any of the Borrowers, hereunder and under the other Loan Documents shall be ~~jointly~~ joint and ~~severally liable~~ several, whether or not so expressed, and such obligations of any of the Borrowers shall not be subject to ~~Buyer to~~ any counterclaim, setoff, recoupment or defense based upon any claim any Borrower may have against any other Borrower or the ~~maximum extent permitted by Requirements of Law for all Guarantor Liabilities~~Bank, ~~(ii) the liability of each Guarantor (A) shall be absolute and unconditional~~ and shall remain in full force and effect (or be reinstated) until the Guaranteed Indebtedness shall have been fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration of any applicable preference or similar period pursuant to any Insolvency Law, or at law or in equity, without ~~any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by Buyer~~regard to, and ~~(B) until such payment has been made and such obligations satisfied,~~ shall not be ~~discharged~~released, ~~affected~~discharged or in any way affected by, ~~modified~~ any circumstance or ~~impaired on the occurrence from time~~ condition affecting any other Borrower, including without limitation (b) any waiver, consent, extension, renewal, indulgence or other action or inaction under or in respect of this Agreement or any other Loan Document, or any agreement or other document related thereto with respect to ~~time~~ any other Borrower, or any exercise or nonexercise of any ~~event~~right, ~~including any of the following~~remedy, ~~whether~~ power or ~~not with notice to~~ privilege under or the consent of each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement of the time for payment or performance or renewal or refinancing) in respect of any of such agreement or instrument with respect to the ~~Repurchase Obligations~~other Borrower, ~~Guarantor Liabilities, (2)~~ or the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer of any Purchased Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities (in each case, whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the Repurchase Obligations or the Guarantor Liabilities, whether by Buyer or in connection with any Insolvency Proceeding affecting any Guarantor or any other Person who, or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents or any part of the foregoing, or (5) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section 6.28, result in the release or discharge of any or all of Guarantors from the performance or observance of any of the ~~Guarantor Liabilities~~foregoing to the other Borrower; (c) any invalidity or unenforceability, ~~(iii) Buyer shall not be required first~~ in whole or in part, of any such agreement or instrument with respect to ~~initiate any suit or to exhaust its remedies against any Guarantor or~~ any other ~~Person to become liable, or against~~ Borrower; (d) any of failure on the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence part of any other Borrower for any reason to perform or comply with any term of any such agreement or instrument; (e) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to any other Borrower or its properties or creditors; or (f) any other occurrence whatsoever, whether similar or dissimilar to the foregoing, each Guarantor shall be and remain directly and unconditionally liable for all sums due under this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on with respect to any other ~~Guarantor~~Borrower. Each Borrower hereby waives any requirement of diligence or promptness on the part of the Bank in the enforcement of its rights hereunder or under any other Loan Document with respect to the obligations of itself or of the other Borrowers. Without limiting the foregoing, ~~and~~ any failure ~~by Buyer~~ to make any ~~such~~ demand upon, to pursue or ~~to collect~~ exhaust any ~~payments from any other Guarantor~~rights or remedies against a Borrower, or any ~~release of any such other Guarantor~~delay with respect thereto, shall not ~~relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or~~ affect the ~~rights and remedies, express~~ obligations of the other Borrowers hereunder or ~~implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or~~ under any other Person obligated under the Repurchase Documents), and (v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally liable for any deficiencyLoan Document.

Appears in 1 contract

Samples: Loan Agreement (Moldflow Corp)

Joint and Several Obligations. (a) ~~At all times when there is more than one Guarantor under this Guaranty, each Guarantor~~ Each Seller hereby acknowledges and agrees that (i) each ~~Guarantor~~ Seller shall be jointly and severally liable to Buyer to the maximum extent permitted by Requirements of Law for all ~~Guarantor Liabilities~~Repurchase Obligations, (ii) ~~the liability of each Guarantor (A) shall be absolute and unconditional and shall remain in full force and effect (or be reinstated)~~ until ~~the Guaranteed Indebtedness~~ all Repurchase Obligations shall have been ~~fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated~~ paid in full and the expiration of any applicable preference or similar period pursuant to any Insolvency Law, or at law or in equity, ~~without any~~ has expired, the liability of each Seller (A) shall be absolute and unconditional and shall remain in full force and effect (and, if suspended or terminated, shall be reinstated) and, for the avoidance of doubt, such liability shall be absolute and unconditional and shall remain in full force and effect even if Buyer shall not make a claim ~~having been made~~ before the expiration of such period asserting an interest in all or any part of any payment(s) received by Buyer, and (B) ~~until such payment has been made and such obligations satisfied,~~ shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, ~~including~~ including, but limited to, any of the ~~following~~following events, whether or not with notice to to, or the consent of of, each ~~Guarantor,~~ or any Seller: (1) the waiver, forbearance, compromise, settlement, release, ~~termination~~ termination, modification or amendment (~~including~~ including, but not limited to, any extension or postponement of the time for payment or performance or renewal or refinancing) of any of the Repurchase Obligations, ~~Guarantor Liabilities,~~ (2) the failure to give notice to each ~~Guarantor~~ or any Seller of the occurrence of a Default or an Event of Default, (3) the release, substitution or exchange by Buyer of any Purchased ~~Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities~~ Asset (~~in each case, whether~~ with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any ~~nonperfection~~ nonperfection, subordination of priority (whether at law or equity) or any other impairment of any collateral, (4) the full or partial release of of, or waiver or forbearance from enforcing any rights against, any Person primarily or secondarily liable for payment or performance of all or any part of the Repurchase ~~Obligations or the Guarantor Liabilities~~Obligations, whether or not by ~~Buyer~~ Buyer, and whether or not in connection with any Insolvency Proceeding affecting any ~~Guarantor~~ Seller or any other ~~Person who~~Person, or has (x) any ~~of whose property, shall at the time in question be obligated~~ obligations in respect of the Repurchase Obligations or ~~the Guarantor Liabilities~~any part thereof, ~~the other duties and obligations under~~ or (y) granted any security interest in any of its collateral as security for any of the Repurchase ~~Documents or any part of the foregoing~~Obligations, or (5) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this ~~Section 6.28~~Article 29, result in the release or ~~discharge~~ discharge, in whole or in part, of any or all of ~~Guarantors~~ Sellers from the payment, performance or observance of any ~~of the Guarantor Liabilities~~Repurchase Obligation, (iii) Buyer shall not be required first to initiate any suit or to attempt to enforce or exhaust its remedies against any ~~Guarantor~~ Seller or any other ~~Person to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities~~Person, in order to enforce ~~this Guaranty~~ the Transaction Documents or ~~other~~ seek payment and/or performance of any or all of the Repurchase ~~Documents~~ Obligations against any Seller and each ~~Guarantor~~ Seller expressly agrees that, notwithstanding the occurrence of any of the foregoing, each ~~Guarantor~~ Seller is and shall ~~be and~~ remain directly and ~~unconditionally~~ primarily liable for all sums due under ~~this Guaranty~~any of the Transaction Documents, including, but not limited to, all of the Repurchase Obligations, (iv) when making any demand hereunder against any ~~Guarantor~~Seller, Buyer may, but shall be under no obligation to, make a similar demand on any other ~~Guarantor~~Seller, and (x) any failure by Buyer to make any such ~~demand~~ demand, enforce or attempt to enforce any of Buyer’s rights, or collect or attempt to collect any payments from any other ~~Guarantor~~Seller, or (y) any release by Buyer of any ~~such~~ other ~~Guarantor~~Seller shall not, ~~shall not~~ in either case, relieve any ~~Guarantor in respect~~ Seller of ~~which a demand or collection is not made or Guarantors not so released of their~~ its obligations or liabilities ~~hereunder~~hereunder or under any other Transaction Document, and shall not impair or affect the rights and remedies, express or implied, or as a matter of ~~Requirements of Law~~law or equity, of Buyer against ~~Guarantors (~~any Seller or all of ~~any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under~~ the ~~Repurchase Documents)~~Sellers, and (v) on disposition by Buyer of any ~~property encumbered by~~ collateral securing any ~~Purchased Assets~~of the Repurchase Obligations, ~~Pledged Collateral or any collateral, property or security for the Guarantor Liabilities~~ each ~~Guarantor~~ Seller shall be and shall remain jointly and severally liable for any ~~deficiency~~deficiency up to and including, with respect to each Seller, the value of the Purchased Assets purchased from such Seller. It is expressly agreed that Foreign Asset Seller is liable to Buyer for all obligations of U.S. Seller under the Other Repurchase Agreement, including, without limitation, the Other Facility Repurchase Obligations.

Appears in 1 contract

Samples: Master Repurchase Agreement (Blackstone Mortgage Trust, Inc.)

Joint and Several Obligations. ~~(a) At all times when there is more than one Guarantor under this Guaranty,~~ Each of the Sellers and Buyer hereby acknowledge and agree that the Original Sellers are each ~~Guarantor hereby acknowledges and agrees that (i) each Guarantor shall be~~ jointly and severally liable to Buyer for all of their and the Additional Sellers' and NCMV's respective representations, warranties and covenants hereunder and under the Repurchase Agreement. The Original Sellers hereby unconditionally and irrevocably guarantee to the ~~maximum extent permitted~~ Buyer the prompt and complete payment and performance by ~~Requirements~~ the Additional Sellers and NCMV when due (whether at the stated maturity, by acceleration or otherwise) of ~~Law~~ their Obligations hereunder. Each Original Seller waives any and all notice of the creation, renewal, extension or accrual of any of the Additional Sellers' or NCMV's Obligations hereunder and notice of or proof of reliance by the Buyer upon this guaranty or acceptance of this guaranty; the Additional Sellers' or NCMV's Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this guaranty; and all dealings between the Original Sellers, NCMV or the Additional Sellers, on the one hand, and the Buyer, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this guaranty. Each Original Seller waives diligence, presentment, protest, demand for ~~all Guarantor Liabilities~~payment and notice of default or nonpayment to or upon the Additional Sellers and NCMV or this guaranty with respect to the Additional Sellers' and NCMV's Obligations. This guaranty shall be construed as a continuing, absolute and unconditional guarantee of payment without regard to (i) the validity or enforceability of the Repurchase Agreement, the other Program Agreements, any of the Additional Sellers' or NCMV's Obligations or any collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Buyer, (ii) ~~the liability~~ any defense, set-off or counterclaim (other than a defense of ~~each Guarantor (A~~payment or performance) ~~shall~~ which may at any time be ~~absolute and unconditional and shall remain in full force and effect (~~available to or be ~~reinstated) until~~ asserted by the ~~Guaranteed Indebtedness shall have been fully and indefeasibly paid,~~ Additional Sellers or NCMV against the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration of any applicable preference or similar period pursuant to any Insolvency LawBuyer, or ~~at law~~ (iii) any other circumstance whatsoever (with or ~~in equity,~~ without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by Buyer, and (B) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any of the following, whether or not with notice to or ~~the consent of each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement~~ knowledge of the ~~time for payment~~ Additional Sellers, NCMV or ~~performance~~ the Original Sellers) which constitutes, or ~~renewal~~ might be construed to constitute, an equitable or ~~refinancing) of any~~ legal discharge of the ~~Repurchase~~ Additional Sellers or NCMV for their Obligations, ~~Guarantor Liabilities, (2) the failure to give notice to each Guarantor~~ or of the ~~occurrence of an Event of Default~~Original Sellers under this guaranty, ~~(3) the release, substitution~~ in bankruptcy or ~~exchange by Buyer of any Purchased Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities (~~in ~~each case, whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of~~ any other ~~collateral or source of repayment or any nonperfection or other impairment of collateral, (4)~~ instance. When pursuing its rights and remedies hereunder against the release of any Person primarily or secondarily liable for all or any part of the Repurchase Obligations or the Guarantor Liabilities, whether by Buyer or in connection with any Insolvency Proceeding affecting any Guarantor or any other Person who, or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations or the Guarantor LiabilitiesOriginal Sellers, the other duties and obligations under the Repurchase Documents or any part of the foregoing, or (5) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section 6.28, result in the release or discharge of any or all of Guarantors from the performance or observance of any of the Guarantor Liabilities, (iii) Buyer shall not be required first to initiate any suit or to exhaust its remedies against any Guarantor or any other Person to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, each Guarantor shall be and remain directly and unconditionally liable for all sums due under this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no ~~obligation to~~obligation, ~~make a similar demand on~~ to pursue such rights and remedies that they may have against the Additional Sellers, NCMV or any other ~~Guarantor~~Person or against any collateral security or guarantee for the Additional Sellers' or NCMV's Obligations or any right of offset with respect thereto, and any failure by the Buyer to ~~make any~~ pursue such ~~demand~~ other rights or remedies or to collect any payments from Additional Sellers or NCMV or any such other ~~Guarantor~~Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Original Sellers or any such other ~~Guarantor~~Person or any such collateral security, guarantee or right of offset, shall not relieve the Original Sellers of any ~~Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities~~ liability hereunder, and shall not impair or affect the rights and remedies, ~~express~~ whether express, implied or ~~implied, or~~ available as a matter of ~~Requirements of Law~~law, of the Buyer against ~~Guarantors (or~~ the Original Sellers. This guaranty shall remain in full force and effect and be binding in accordance with and to the extent of ~~any Guarantor against another Guarantor or~~ its terms upon the Original Sellers and their successors and assigns thereof, and shall inure to the benefit of the Buyer, and successors, indorsees, transferees and assigns, until all of each Additional Seller~~, Pledgor or any other Person obligated~~ 's and NCMV's Obligations and the obligations of each Original Seller under this guaranty and the Repurchase ~~Documents)~~Agreement shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the Repurchase Agreement the Additional Sellers and ~~(v) on disposition by Buyer of~~ NCMV may be free from any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally liable for any deficiencyObligations.

Appears in 1 contract

Samples: Master Repurchase Agreement (New Century Financial Corp)

Joint and Several Obligations. (a) ~~At all times when there is more than one Guarantor under this Guaranty, each Guarantor~~ Seller hereby acknowledges and agrees that (i) ~~each Guarantor~~ Seller shall be jointly and severally liable with the sellers under each Other Repurchase Agreement to Buyer to the maximum extent permitted by Requirements of Law for all ~~Guarantor Liabilities~~Repurchase Obligations and all Other Facility Repurchase Obligations, (ii) the liability of ~~each Guarantor~~ Seller (A) shall be absolute and unconditional and shall remain in full force and effect (or be reinstated) until ~~the Guaranteed Indebtedness~~ all Repurchase Obligations and all Other Facility Repurchase Obligations shall have been ~~fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated~~ paid in full and the expiration of any applicable preference or similar period pursuant to any Insolvency Law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by Buyer, and (B) until such payment has been ~~made and such obligations satisfied~~made, shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any of the following, whether or not with - 92 - notice to or the consent of ~~each Guarantor~~Seller, (1) the waiver, compromise, settlement, release, modification, supplementation, termination or amendment (including any extension or postponement of the time for payment or performance or renewal or refinancing) of any of the Repurchase Obligations, ~~Guarantor Liabilities~~Repurchase Documents, any Other Facility Repurchase Obligations or “Repurchase Documents” (as defined in the Kensington Repurchase Agreement) or the “Facility Documents” (as defined in the Gloss Loan Agreement), (2) the failure to give notice to ~~each Guarantor~~ Seller of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer of any Purchased Asset or “Purchased Asset, ” (as defined in the Kensington Repurchase Agreement) or “Pledged ~~Collateral or any collateral, property or security for~~ Asset” (as defined in the ~~Repurchase Documents or the Guarantor Liabilities~~ Gloss Loan Agreement) (~~in each case,~~ whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the Repurchase Obligations or ~~the Guarantor Liabilities~~any Other Facility Repurchase Obligations, whether by Buyer or in connection with any Insolvency Proceeding affecting Seller, any ~~Guarantor~~ seller under the Other Repurchase Agreement, or any other Person who, or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations, any Other Facility Repurchase Obligations ~~or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents~~ or any part thereof, (5) the sale, exchange, waiver, surrender or release of any Purchased Asset, “Purchased Asset” (as defined in the ~~foregoing~~Kensington Repurchase Agreement), guarantee or other collateral by Buyer, “Pledged Asset” (as defined in the Gloss Loan Agreement), (6) the failure of Buyer to protect, secure, perfect or insure any Lien at any time held by Buyer as security for amounts owed by Seller or any seller under the Other Repurchase Agreement, or (57) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section ~~6.28~~18.27, result in the release or discharge ~~of any or all of Guarantors~~ Seller from the performance or observance of any Repurchase Obligation or any seller from the performance or observance of ~~the Guarantor Liabilities~~any Other Facility Repurchase Obligation, (iii) Buyer shall not be required first to initiate any suit or to exhaust its remedies against Seller, any ~~Guarantor~~ seller under the Other Repurchase Agreement or any other Person to become liable, or against any of the Purchased Assets or “Purchased Assets, ” (as defined in the Kensington Repurchase Agreement) or “Pledged ~~Collateral or any collateral, property or security for~~ Assets” (as defined in the ~~Repurchase Documents or the Guarantor Liabilities~~Gloss Loan Agreement), in order to enforce ~~this Guaranty or other~~ the Repurchase Documents and ~~each Guarantor~~ the “Repurchase Documents” (as defined in the Kensington Repurchase Agreement) or the “Facility Documents” (as defined in the Gloss Loan Agreement) and Seller expressly agrees that, notwithstanding the occurrence of any of the foregoing, ~~each Guarantor~~ Seller shall be and remain directly and ~~unconditionally~~ primarily liable for all sums due under ~~this Guaranty~~any of the Repurchase Documents and the “Repurchase Documents” (as defined in the Kensington Repurchase Agreement) or the “Facility Documents” (as defined in the Gloss Loan Agreement), (iv) when making any demand hereunder against Seller or any ~~Guarantor~~of the Purchased Assets, Buyer may, but shall be under no obligation to, make a similar demand on any seller under the Other Repurchase Agreement, or otherwise pursue such rights and remedies as it may have against any seller under the Other Repurchase Agreement or any other ~~Guarantor~~Person or against any collateral security or guarantee related thereto or any right of offset with respect thereto, and any failure by Buyer to make any such ~~demand~~ demand, file suit or otherwise pursue such other rights or remedies or to collect any payments from any such other ~~Guarantor~~seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of any such other ~~Guarantor~~seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve ~~any Guarantor in respect of which~~ Seller if a demand or collection is not made ~~or Guarantors~~ and shall not ~~so released~~ release Seller of ~~their~~ its obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of ~~Requirements of Law~~law, of Buyer against ~~Guarantors~~ Seller (or as used herein, the term “demand” shall include the commencement and continuation of ~~any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents~~legal proceedings), ~~and~~ (v) on disposition by Buyer of any property encumbered by any Purchased Assets or “Purchased Assets” (as defined in the Kensington Repurchase Agreement) or “Pledged Assets” (as defined in the Gloss Loan Agreement), ~~Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor~~ Seller shall be and shall remain jointly and severally liable for any deficiency, (vi) Seller waives (A) any and all notice of the creation, renewal, extension or accrual of any amounts at any time owing to Buyer by any other seller under the “Repurchase Documents” (as defined in - 93 - the Kensington Repurchase Agreement) or the “Facility Documents” (as defined in the Gloss Loan Agreement) and notice of or proof of reliance by Buyer upon Seller or acceptance of the obligations of Seller under this Section 18.27, and all such amounts, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the obligations of Seller under this Agreement, and all dealings between Seller, on the one hand, and Buyer, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the obligations of Seller under this Agreement and the Other Repurchase Agreement, and (B) diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Seller with respect to any amounts at any time owing to Buyer by Seller under the Repurchase Documents or any other seller under the “Repurchase Documents” (as defined in the Kensington Repurchase Agreement) or the “Facility Documents” (as defined in the Gloss Loan Agreement), and (vii) Seller shall continue to be liable under this Section 18.27 without regard to (A) the validity, regularity or enforceability of any other provision of this Agreement, the Other Repurchase Agreement, any other Repurchase Document or any other “Repurchase Document” (as defined in the Kensington Repurchase Agreement) or the “Facility Documents” (as defined in the Gloss Loan Agreement), any amounts at any time owing to Buyer by Seller under the Repurchase Documents or any seller under the “Repurchase Documents” (as defined in the Kensington Repurchase Agreement) or the “Facility Documents” (as defined in the Gloss Loan Agreement), or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by Buyer, (B) any defense, set off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by Seller against Buyer, or (iii) any other circumstance whatsoever (with or without notice to or knowledge of Seller) which constitutes, or might be construed to constitute, an equitable or legal discharge of Seller for any amounts owing to Buyer by Seller under the Repurchase Documents, or of any seller under the “Repurchase Documents” (as defined in the Kensington Repurchase Agreement) or the “Facility Documents” (as defined in the Gloss Loan Agreement), in bankruptcy or in any other instance.

Appears in 1 contract

Samples: Master Repurchase and Securities Contract (Blackstone Mortgage Trust, Inc.)

Joint and Several Obligations. (a) ~~At all times when there is more than one Guarantor under this Guaranty, each Guarantor~~ Each Seller hereby acknowledges and agrees that (i) each ~~Guarantor~~ Seller shall be jointly and severally liable to Buyer to the maximum extent permitted by Requirements of Law for all ~~Guarantor Liabilities~~Repurchase Obligations, (ii) ~~the liability of each Guarantor (A) shall be absolute and unconditional and shall remain in full force and effect (or be reinstated)~~ until ~~the Guaranteed Indebtedness~~ all Repurchase Obligations shall have been ~~fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated~~ paid in full and the expiration of any applicable preference or similar period pursuant to any Insolvency Law, or at law or in equity, ~~without any~~ has expired, the liability of each Seller (A) shall be absolute and unconditional and shall remain in full force and effect (and, if suspended or terminated, shall be reinstated) and, for the avoidance of doubt, such liability shall be absolute and unconditional and shall remain in full force and effect even if Buyer shall not make a claim ~~having been made~~ before the expiration of such period asserting an interest in all or any part of any payment(s) received by Buyer, and (B) ~~until such payment has been made and such obligations satisfied,~~ shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, ~~including~~ including, but limited to, any of the ~~following~~following events, whether or not with notice to to, or the consent of of, each ~~Guarantor,~~ or any Seller: (1) the waiver, forbearance, compromise, settlement, release, ~~termination~~ termination, modification or amendment (~~including~~ including, but not limited to, any extension or postponement of the time for payment or performance or renewal or refinancing) of any of the Repurchase Obligations, ~~Guarantor Liabilities,~~ (2) the failure to give notice to each ~~Guarantor~~ or any Seller of the occurrence of a Default or an Event of Default, (3) the release, substitution or exchange by Buyer of any Purchased ~~Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities~~ Asset (~~in each case, whether~~ with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any ~~nonperfection~~ nonperfection, subordination of priority (whether at law or equity) or any other impairment of any collateral, (4) the full or partial release of of, or waiver or forbearance from enforcing any rights against, any Person primarily or secondarily liable for payment or performance of all or any part of the Repurchase ~~Obligations or the Guarantor Liabilities~~Obligations, whether or not by ~~Buyer~~ Buyer, and whether or not in connection with any Insolvency Proceeding affecting any ~~Guarantor~~ Seller or any other ~~Person who~~Person, or has (x) any ~~of whose property, shall at the time in question be obligated~~ obligations in respect of the Repurchase Obligations or ~~the Guarantor Liabilities~~any part thereof, ~~the other duties and obligations under~~ or (y) granted any security interest in any of its collateral as security for any of the Repurchase ~~Documents or any part of the foregoing~~Obligations, or (5) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this ~~Section 6.28~~Article 29, result in the release or ~~discharge~~ discharge, in whole or in part, of any or all of ~~Guarantors~~ Sellers from the payment, performance or observance of any ~~of the Guarantor Liabilities~~Repurchase Obligation, (iii) Buyer shall not be required first to initiate any suit or to attempt to enforce or exhaust its remedies against any ~~Guarantor~~ Seller or any other ~~Person to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities~~Person, in order to enforce ~~this Guaranty~~ the Transaction Documents or ~~other~~ seek payment and/or performance of any or all of the Repurchase ~~Documents~~ Obligations against any Seller and each ~~Guarantor~~ Seller expressly agrees that, notwithstanding the occurrence of any of the foregoing, each ~~Guarantor~~ Seller is and shall ~~be and~~ remain directly and ~~unconditionally~~ primarily liable for all sums due under ~~this Guaranty~~any of the Transaction Documents, including, but not limited to, all of the Repurchase Obligations, (iv) when making any demand hereunder against any ~~Guarantor~~Seller, Buyer may, but shall be under no obligation to, make a similar demand on any other ~~Guarantor~~Seller, and (x) any failure by Buyer to make any such ~~demand~~ demand, enforce or attempt to enforce any of Buyer’s rights, or collect or attempt to collect any payments from any other ~~Guarantor~~Seller, or (y) any release by Buyer of any ~~such~~ other ~~Guarantor~~Seller shall not, ~~shall not~~ in either case, relieve any ~~Guarantor in respect~~ Seller of ~~which a demand or collection is not made or Guarantors not so released of their~~ its obligations or liabilities ~~hereunder~~hereunder or under any other Transaction Document, and shall not impair or affect the rights and remedies, express or implied, or as a matter of ~~Requirements of Law~~law or equity, of Buyer against ~~Guarantors (~~any Seller or all of ~~any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under~~ the ~~Repurchase Documents)~~Sellers, and (v) on disposition by Buyer of any ~~property encumbered by~~ collateral securing any ~~Purchased Assets~~of the Repurchase Obligations, ~~Pledged Collateral or any collateral, property or security for the Guarantor Liabilities~~ each ~~Guarantor~~ Seller shall be and shall remain jointly and severally liable for any ~~deficiency~~deficiency up to and including, with respect to each Seller, the value of the Purchased Assets purchased from such Seller.

Appears in 1 contract

Samples: Master Repurchase Agreement (Blackstone Mortgage Trust, Inc.)

Joint and Several Obligations. ~~(a) At all times when there is more than one Guarantor~~ Each and every representation, ----------------------------- warranty, covenant and agreement made by either of the Borrowers, hereunder and under ~~this Guaranty, each Guarantor hereby acknowledges and agrees that (i) each Guarantor~~ the other Loan Documents shall be ~~jointly~~ joint and ~~severally liable~~ several, whether or not so expressed, and such obligations of either of the Borrowers shall not be subject to ~~Buyer to~~ any counterclaim, setoff, recoupment or defense based upon any claim either Borrower may have against the ~~maximum extent permitted by Requirements of Law for all Guarantor Liabilities~~other Borrower or the Bank, ~~(ii) the liability of each Guarantor (A) shall be absolute and unconditional~~ and shall remain in full force and effect (or be reinstated) until the Guaranteed Indebtedness shall have been fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration of any applicable preference or similar period pursuant to any Insolvency Law, or at law or in equity, without ~~any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by Buyer~~regard to, and ~~(B) until such payment has been made and such obligations satisfied,~~ shall not be ~~discharged~~released, ~~affected~~discharged or in any way affected by, ~~modified~~ any circumstance or ~~impaired on~~ condition affecting the ~~occurrence from time~~ other Borrower, including without limitation (a) any waiver, consent, extension, renewal, indulgence or other action or inaction under or in respect of this Agreement or any other Loan Document, or any agreement or other document related thereto with respect to ~~time~~ the other Borrower, or any exercise or nonexercise of any ~~event~~right, ~~including any of the following~~remedy, ~~whether~~ power or ~~not with notice to~~ privilege under or the consent of each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement of the time for payment or performance or renewal or refinancing) in respect of any of such agreement or instrument with respect to the ~~Repurchase Obligations~~other Borrower, ~~Guarantor Liabilities, (2)~~ or the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer of any Purchased Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities (in each case, whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the Repurchase Obligations or the Guarantor Liabilities, whether by Buyer or in connection with any Insolvency Proceeding affecting any Guarantor or any other Person who, or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents or any part of the foregoing, or (5) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section 6.28, result in the release or discharge of any or all of Guarantors from the performance or observance of any of the ~~Guarantor Liabilities~~foregoing to Trans-Tech, it being agreed by Trans-Tech that notice in each such case to Alpha shall be sufficient and that no notice to the Borrowers shall be effective without notice to Alpha; (~~iii~~b) ~~Buyer shall not be required first~~ any invalidity or unenforceability, in whole or in part, of any such agreement or instrument with respect to ~~initiate~~ the other Borrower; (c) any ~~suit~~ failure on the part of the other Borrower for any reason to perform or comply with any term of any such agreement or instrument; (d) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to ~~exhaust~~ the other Borrower or its ~~remedies against any Guarantor~~ properties or creditors; or (e) any other ~~Person~~ occurrence whatsoever, whether similar or dissimilar to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, ~~each Guarantor shall be and remain directly and unconditionally liable for all sums due~~ with respect to the other Borrower. Each Borrower hereby waives any requirement of diligence or promptness on the part of the Bank in the enforcement of the Bank's rights hereunder or under ~~this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on~~ any other ~~Guarantor, and~~ Loan Document with respect to the obligations of itself or of the other Borrower. Without limiting the foregoing any failure ~~by Buyer~~ to make any ~~such~~ demand upon, to pursue or ~~to collect~~ exhaust any ~~payments from any other Guarantor~~rights or remedies against a Borrower, or any ~~release of any such other Guarantor~~delay with respect thereto, shall not ~~relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or~~ affect the ~~rights and remedies, express~~ obligations of the other Borrower hereunder or ~~implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or~~ under any other Person obligated under the Repurchase Documents), and (v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally liable for any deficiencyLoan Document.

Appears in 1 contract

Samples: Credit Agreement (Alpha Industries Inc)

Joint and Several Obligations. (a) At Each Distribution Borrower agrees that the covenants and agreements of the Distribution Borrowers and each of them contained in this Agreement and any related document shall be joint and several obligations of such parties unless otherwise specifically set forth herein or therein in consideration of the financial accommodation to be provided by Lender hereunder for the mutual benefit, directly and indirectly, of each of the Distribution Borrowers and in consideration of the undertakings of each of the Distribution Borrowers to accept joint and several liability for the obligations of each of them hereunder. Each of the Distribution Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Distribution Borrowers with respect to the payment and performance of all ~~times when there is more than one Guarantor~~ of the obligations of the Distribution Borrowers and each of them arising under this ~~Guaranty~~Agreement and related documents, ~~each Guarantor hereby acknowledges and agrees~~ it being the intention of the parties hereto that ~~(i) each Guarantor~~ all such obligations shall be the joint and several obligations of each of the Distribution Borrowers without preferences or distinction among them. Distribution Borrowers and each of them, jointly and ~~severally liable to Buyer to~~ severally, irrevocably, absolutely and unconditionally guarantee(s) prompt payment of all obligations of the ~~maximum extent permitted by Requirements~~ Distribution Borrowers and each of ~~Law for all Guarantor Liabilities~~them under this Agreement, ~~(ii)~~ the ~~liability of each Guarantor (A) shall be absolute~~ applicable Notes and ~~unconditional and shall remain~~ any document executed in connection herewith in full force and effect (or be reinstated) until the Guaranteed Indebtedness shall have been fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration of any applicable preference or similar period pursuant to any Insolvency Law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by Buyer, and (B) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any of the following, whether or not with notice to or the consent of each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement of the time for payment or performance or renewal or refinancing) of any of the Repurchase Obligations, Guarantor Liabilities, (2) the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer of any Purchased Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities (in each case, whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the Repurchase Obligations or the Guarantor Liabilitieswhen due, whether by ~~Buyer~~ acceleration or ~~in connection with~~ otherwise, and waive(s) any ~~Insolvency Proceeding affecting~~ right to require that any ~~Guarantor~~ action be brought against the other Distribution Borrowers or any ~~other Person who, or~~ guarantor of such obligations and any ~~of whose property, shall at the time in question~~ right to require that resort be ~~obligated in respect~~ had to any security for payment of the ~~Repurchase Obligations or the Guarantor Liabilities, the other duties~~ such obligations and ~~obligations under the Repurchase Documents or any part of the foregoing, or (5~~waive(s) ~~to the extent permitted by Requirements of Law,~~ any other ~~event, occurrence, action~~ defenses available to a surety or ~~circumstance that would, in the absence of~~ guarantor under applicable law. Each Distribution Borrower shall be liable under this Section 6.28, result in the release or discharge of any or all of Guarantors from the performance or observance of any of the Guarantor Liabilities, (iii) Buyer shall not be required first to initiate any suit or to exhaust its remedies against any Guarantor or any other Person to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security Agreement and applicable Notes for the ~~Repurchase Documents~~ maximum amount of such liability that can be incurred without rendering this Agreement or ~~the Guarantor Liabilities~~such Notes, ~~in order~~ as they relate to ~~enforce this Guaranty~~ such Distribution Borrower, voidable under applicable law relating to fraudulent conveyance or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, each Guarantor shall be and remain directly and unconditionally liable for all sums due under this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantorfraudulent transfer, and ~~any failure by Buyer to make any such demand or to collect any payments from any other Guarantor, or any release of any such other Guarantor, shall~~ not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents), and (v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally liable for any ~~deficiency~~greater amount.

Appears in 1 contract

Samples: Loan and Security Agreement (Amrep Corp)

Joint and Several Obligations. ~~(a) At all times when there~~ Notwithstanding anything to the contrary herein, each of the Aggregator Borrower and Co-Borrower is ~~more than one Guarantor~~ accepting joint and several liability hereunder and under the other Loan Documents, the agreements in respect of Secured Cash Management Obligations and Other Secured Obligations and the agreements in respect of Secured Swap Obligations in consideration of the financial accommodation to be provided by the Lenders, the Issuing Banks, any Agent, Lead Arranger or Lender or any Affiliate of any of the foregoing under this ~~Guaranty~~Agreement, the other Loan Documents, the agreements in respect of Secured Cash Management Obligations and Other Secured Obligations and the agreements in respect of Secured Swap Obligations, for the mutual benefit, directly and indirectly, of the Borrower and in consideration of the undertakings of each ~~Guarantor hereby acknowledges~~ Borrower to accept joint and ~~agrees that (i) each Guarantor shall be~~ several liability for the Borrowers. Each Borrower jointly and severally ~~liable to Buyer~~ hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with each other Borrower with respect to the ~~maximum~~ payment and performance of all of the Loan Document Obligations, it being the intention of the parties hereto that all the Loan Document Obligations shall be the joint and several obligations of each Borrower without preferences or distinction between them. If and to the extent that either Borrower shall fail to make any payment with respect to any Loan Document Obligation as and when due or to perform any Loan Document Obligation in accordance with the terms thereof, then in each such event, the other Borrower will make such payment with respect to, or perform, such Loan Document Obligation. The obligations of each Borrower under the provisions of this Section 9.23 constitute full recourse obligations of each Borrower, enforceable against it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever. Except as otherwise expressly provided herein, each Borrower hereby waives, to the extent permitted by applicable Requirements of ~~Law for all Guarantor Liabilities~~Law, ~~(ii)~~ notice of acceptance of its joint and several liability. Except as otherwise expressly provided herein, each Borrower hereby waives, to the liability of each Guarantor (A) shall be absolute and unconditional and shall remain in full force and effect (or be reinstated) until the Guaranteed Indebtedness shall have been fully and indefeasibly paidextent permitted by law, ~~the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration~~ notice of any ~~applicable preference~~ Loan made under this Agreement, notice of occurrence of any Default or ~~similar period pursuant to~~ Event of Default or of any ~~Insolvency Law~~demand for any payment under this Agreement, notice of any action at any time taken or ~~at law~~ omitted by any Lender under or in ~~equity, without any claim having been made before the expiration~~ respect of such period asserting an interest in all or any part of any payment(s) received by Buyer, and (B) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any of the ~~following~~Loan Document Obligations, ~~whether or not~~ any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Agreement. Each Borrower hereby, to the extent permitted by applicable Requirements of Law, assents to and waives notice ~~to or the consent~~ of ~~each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment (including~~ any extension or postponement of the time for the payment of any Loan Document Obligation, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by any Lender at any time or times in respect of any default by each Borrower in the performance or ~~renewal~~ satisfaction of any term, covenant, condition or ~~refinancing)~~ provision of this Agreement, any and all other indulgences whatsoever by any Lender in respect of any of the ~~Repurchase~~ Loan Document Obligations, ~~Guarantor Liabilities~~and the taking, ~~(2) the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release~~addition, substitution or ~~exchange by Buyer~~ release, in whole or in part, at any time or times, of any ~~Purchased Asset, Pledged Collateral or any collateral, property or~~ security for ~~the Repurchase Documents~~ any Loan Document Obligation or the ~~Guarantor Liabilities (~~addition, substitution or release, in each case, whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the Repurchase Obligations or the Guarantor Liabilities, whether by Buyer whole or in ~~connection with any Insolvency Proceeding affecting any Guarantor or any other Person who~~part, ~~or any~~ of ~~whose property, shall at~~ each Borrower. Without limiting the time in question be obligated in respect of the Repurchase Obligations or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents or any part of the foregoing, or (5) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section 6.28, result in the release or discharge of any or all of Guarantors from the performance or observance of any of the Guarantor Liabilities, (iii) Buyer shall not be required first to initiate any suit or to exhaust its remedies against any Guarantor or any other Person to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any generality of the foregoing, each ~~Guarantor shall be and remain directly and unconditionally liable~~ Borrower assents to any other action or delay in acting or failure to act on the part of any Lender, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with the applicable laws or regulations thereunder which might, but for ~~all sums due~~ the provisions of this Section 9.23, afford grounds for terminating, discharging or relieving each Borrower, in whole or in part, from any of its obligations under this ~~Guaranty~~Section 9.23, ~~(iv) when making~~ it being the intention of each Borrower that, so long as any ~~demand hereunder against~~ Loan Document Obligation remains unsatisfied, the obligations of each Borrower under this Section 9.23 shall not be discharged except by performance or payment and then only to the extent of such performance or payment. The obligations of each Borrower under this Section 9.23 shall not be diminished or rendered unenforceable by any ~~Guarantor~~winding up, ~~Buyer may~~reorganization, ~~but shall be under no obligation to~~arrangement, ~~make a~~ liquidation, reconstruction or similar ~~demand on~~ proceeding with respect to any other ~~Guarantor~~Borrower or any Lender. The joint and several liability of each Borrower hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any Borrower or any Lender. The provisions of this Section 9.23 are made solely for the benefit of the Administrative Agent and the other Secured Parties and their respective successors and assigns, and ~~any failure~~ may be enforced by ~~Buyer to make~~ any such ~~demand~~ Person from time to time against each Borrower as often as occasion therefor may arise and without requirement on the part of the Administrative Agent or any other Secured Party first to marshal any of its claims or to ~~collect~~ exercise any ~~payments from~~ of its rights against each Borrower or to exhaust any remedies available to it against each Borrower or to resort to any other ~~Guarantor~~source or means of obtaining payment of any Loan Document Obligation or to elect any other remedy. If at any time, any payment, or any ~~release of any such other Guarantor~~part thereof, ~~shall not relieve any Guarantor~~ made in respect of ~~which a demand~~ any Loan Document Obligation is rescinded or ~~collection is not made~~ must otherwise be restored or ~~Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect~~ returned by the ~~rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor~~ Administrative Agent or any other ~~Person obligated~~ Secured Party upon the insolvency, bankruptcy or reorganization of each Borrower, or otherwise, the provisions of this Section 9.23 will forthwith be reinstated in effect, as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any other Loan Document, to the extent the joint and several obligations of any Borrower shall be adjudicated to be invalid or unenforceable for any reason (including because of any applicable state, provincial or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal, state or provincial and including, without limitation, the ~~Repurchase Documents~~Bankruptcy Code, as now constituted or hereafter amended, or any other Debtor Relief Laws), after taking into account, among other things, such Xxxxxxxx’s right of contribution and ~~(v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities~~ indemnification from each ~~Guarantor shall be and shall remain jointly and severally liable for any deficiency~~other Loan Party under applicable law.

Appears in 1 contract

Samples: First Lien Credit Agreement (Clarios International Inc.)

Joint and Several Obligations. (a) At all times ~~when~~ during which there is more than one ~~Guarantor~~ (1) Seller under this ~~Guaranty~~Agreement, each Guarantor hereby acknowledges and agrees that (i) each Guarantor shall be jointly and severally liable to Buyer to the maximum extent permitted by Requirements of Law for all Guarantor Liabilities, (ii) the liability of each ~~Guarantor~~ Seller shall be joint and several and the joint and several obligations of each Seller under the Repurchase Documents (Aa) (i) shall be absolute and unconditional and shall remain in full force and effect (or be reinstated) until all the ~~Guaranteed Indebtedness~~ Obligations shall have been ~~fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated~~ paid in full and the expiration of any applicable preference or similar period pursuant to any ~~Insolvency Law~~bankruptcy, insolvency, reorganization, moratorium or similar law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by ~~Buyer~~the Deal Agent as agent for the Secured Parties, and (Bii) until such payment has been ~~made and such obligations satisfied~~made, shall not be discharged, affected, modified or impaired on the ~~occurrence~~ happening from time to time of any event, ~~including~~ including, without limitation, any of the following, whether or not with notice to or the consent of ~~each Guarantor~~any Seller, the Guarantor or the Pledgor, (1A) the waiver, compromise, settlement, release, termination or amendment (~~including~~ including, without limitation, any extension or postponement of the time for payment or performance or renewal or refinancing) of any or all of the obligations or agreements of any Seller, the Guarantor or the Pledgor under the Agreement or any Repurchase ~~Obligations, Guarantor Liabilities~~Document, (2B) the failure to give notice to ~~each~~ any Seller, the Guarantor or the Pledgor of the occurrence of an Event of ~~Default~~Default under any of the Repurchase Documents, (3C) the release, substitution or exchange by ~~Buyer~~ the Deal Agent as agent for the Secured Parties of any or all of the Purchased ~~Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities~~ Items (~~in each case,~~ whether with or without consideration) or the acceptance by ~~Buyer~~ the Deal Agent as agent for the Secured Parties of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4D) the release of any Person primarily or secondarily liable for all or any part of the ~~Repurchase Obligations or the Guarantor Liabilities~~Obligations, whether by ~~Buyer~~ the Deal Agent as agent for the Secured Parties or in connection with any ~~Insolvency Proceeding~~ voluntary or involuntary liquidation, dissolution, receivership, insolvency, bankruptcy, assignment for the benefit of creditors or similar event or proceeding affecting any ~~Guarantor~~ or all of any Seller, the Guarantor, the Pledgor or any other Person who, or any of whose ~~property~~Property, shall at the time in question be obligated in respect of the ~~Repurchase~~ Obligations ~~or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents~~ or any part ~~of the foregoing~~thereof, or (5E) to the extent permitted by ~~Requirements of~~ Applicable Law, any other event, occurrence, action or circumstance that would, in the absence of this Section ~~6.28~~13.24, result in the release or discharge of any or all of ~~Guarantors~~ any Seller from the performance or observance of any of obligation, covenant or agreement contained in the ~~Guarantor Liabilities,~~ Agreement or the Repurchase Documents; (~~iii~~b) ~~Buyer~~ each Seller expressly agrees that the Deal Agent as agent for the Secured Parties shall not be required first to initiate any suit or to exhaust its remedies against any ~~Guarantor~~ Seller, the Guarantor, the Pledgor or any other Person to become liable, or against any of the Purchased ~~Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents~~ Items or the ~~Guarantor Liabilities~~Pledged Collateral, in order to enforce this ~~Guaranty~~ Agreement or ~~other~~ the Repurchase Documents and each Seller, the Guarantor and the Pledgor expressly ~~agrees~~ agree that, notwithstanding the occurrence of any of the foregoing, each ~~Guarantor~~ Seller shall be and remain directly and ~~unconditionally~~ primarily liable for all sums due under this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantor, and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor, the Agreement or any ~~release~~ of any such other Guarantor, shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents); and, ~~and~~ (vc) on disposition by ~~Buyer~~ the Deal Agent as agent for the Secured Parties of any ~~property~~ Property encumbered by any Purchased ~~Assets~~Items, ~~Pledged Collateral or any collateral, property or security for the Guarantor Liabilities~~ each ~~Guarantor~~ Seller shall be and shall remain jointly and severally liable for any deficiency.

Appears in 1 contract

Samples: Master Repurchase Agreement (Northstar Realty)

Joint and Several Obligations. (a) At It is understood by the parties hereto, and the Borrowers hereby acknowledge and affirm, that all ~~times when there is more than one Guarantor~~ of the Obligations of the Borrowers hereunder and under ~~this Guaranty~~the other Transaction Documents (including, without limitation, all of the obligations of the Borrowers under and in connection with each ~~Guarantor hereby acknowledges~~ of the Letters of Credit and ~~agrees~~ each of the applications and confirmations therefor made by any Borrower to the Letter of Credit Issuer, and all of the obligations of the Borrowers under the Notes) shall be joint and several; provided, however, that Chemical Pioneer, and its wholly-owned Subsidiaries, shall not be jointly and severally liable as a Borrower for any Obligations in an amount in excess of $2,500,000, in the aggregate, incurred by any Borrowers with 76 respect to (i) ~~each Guarantor~~ any Initial Draw Term Loans or (ii) any other Loans or Letters of Credit outstanding as of the Closing Date, but shall be jointly and severally liable ~~to Buyer~~ as Borrower for all other Obligations. Except as expressly set forth in Article 8, each Borrower waives presentation to, demand of payment from and protest to the maximum extent permitted by Requirements of Law for all Guarantor Liabilities, (ii) the liability of each Guarantor (A) shall be absolute and unconditional and shall remain in full force and effect (or be reinstated) until the Guaranteed Indebtedness shall have been fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration of any applicable preference or similar period pursuant to any Insolvency Law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by Buyer, and (B) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any of the following, whether or not with notice to or the consent of each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement of the time for payment or performance or renewal or refinancing) Lenders of any of the ~~Repurchase Obligations~~obligations and liabilities of the other Borrowers hereunder and also waives notice of protest for nonpayment and notice of acceleration and notice of intent to accelerate, ~~Guarantor Liabilities~~and all other notices of any kind. Except as expressly set forth in Article 8, each Borrower waives notice of any default by the other Borrowers hereunder. The obligations and liabilities of each Borrower hereunder shall not be affected by (2i) the failure of any Lender, the Administrative Agent, the Letter of Credit Issuer or the Collateral Agent to ~~give notice~~ assert any claim or demand or to ~~each Guarantor~~ enforce any right or remedy against the other Borrowers or any other Person under this Agreement or any other Transaction Document; (ii) any extension or renewal of any thereof; (iii) any rescission, waiver, amendment or modification of any of the ~~occurrence~~ terms or provisions of ~~an Event of Default, (3) the release, substitution or exchange by Buyer of any Purchased Asset, Pledged Collateral~~ this Agreement or any ~~collateral, property or security for the Repurchase Documents or the Guarantor Liabilities~~ other Transaction Document; (in each case, whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4iv) the release of any ~~Person primarily~~ obligation or ~~secondarily liable for all or any part~~ liability of the ~~Repurchase Obligations~~ other Borrowers by any Lender, the Administrative Agent, the Letter of Credit Issuer or the ~~Guarantor Liabilities, whether by Buyer~~ Collateral Agent; (v) the failure of any Lender to exercise any right or ~~in connection with~~ remedy against any ~~Insolvency Proceeding affecting~~ Borrower; (vi) any Guarantor or any other Person who, or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents or any part of the foregoing, or (5) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, change in the ~~absence of this Section 6.28, result in the release or discharge of any or all of Guarantors from the performance or observance~~ ownership of any of the ~~Guarantor Liabilities~~Borrowers; or (vii) any winding up, ~~(iii) Buyer shall not be required first~~ reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to ~~initiate any suit or to exhaust its remedies against any Guarantor or any other Person to become liable, or against~~ any of the ~~Purchased Assets~~Borrowers, ~~Pledged~~ any Lender, the Letter of Credit Issuer, the Collateral ~~or any collateral, property or security for the Repurchase Documents~~ Agent or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, each Guarantor shall be and remain directly and unconditionally liable for all sums due under this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantor, and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor, or any release of any such other Guarantor, shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents), and (v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally liable for any deficiencyAdministrative Agent.

Appears in 1 contract

Samples: Credit Agreement (U.S. Shipping Partners L.P.)

Joint and Several Obligations. ~~(a) At all times when there~~ Each Borrower acknowledges that it is ~~more than one Guarantor under this Guaranty, each Guarantor hereby acknowledges and agrees that (i) each Guarantor shall be~~ jointly and severally liable for all of the Obligations and as a result hereby unconditionally guaranties the full and prompt payment when due, whether at maturity or earlier, by reason of acceleration or otherwise, and at all times thereafter, of all indebtedness, liabilities and obligations of every kind and nature of each other Borrower to ~~Buyer~~ Agent and Lenders and, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, joint or several, now or hereafter existing, or due or to become due, and howsoever owned, held or acquired by Agent or any Lender. Each Borrower agrees that if this guaranty, or any Liens securing this guaranty, would, but for the application of this sentence, be unenforceable under applicable law, this guaranty and each such Lien shall be valid and enforceable to the maximum extent ~~permitted~~ that would not cause this guaranty or such Lien to be unenforceable under applicable law, and this guaranty shall automatically be deemed to have been amended accordingly at all relevant times. Each Borrower hereby agrees that its obligations under this guaranty shall be unconditional, irrespective of (a) the validity or enforceability of the Obligations or any part thereof, or of any promissory note or other document evidencing all or any part of the Obligations, (b) the absence of any attempt to collect the Obligations from any other Borrower or any Guarantor or other action to enforce the same, (c) the waiver or consent by ~~Requirements~~ Agent or any Lender with respect to any provision of ~~Law~~ any agreement, instrument or document evidencing or securing all or any part of the Obligations, or any other agreement, instrument or document now or hereafter executed by any other Borrower and delivered to Agent or any Lender (other than a waiver, forgiveness or consent by Agent and Lenders that reduces the amount of any of the Obligations), (d) the failure by Agent or any Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or Collateral for the Obligations, for its benefit, (e) Agent’s or any Lender’s election, in any proceeding instituted under the United States Bankruptcy Code or any other similar bankruptcy or insolvency legislation, of the application of Section 1111(b)(2) of the United States Bankruptcy Code or any other similar bankruptcy or insolvency legislation, (f) any borrowing or grant of a security interest by any Borrower as debtor-in-possession, under Section 364 of the United States Bankruptcy Code or any other similar bankruptcy or insolvency legislation, (g) the disallowance, under Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or any other similar bankruptcy or insolvency legislation, of all ~~Guarantor Liabilities~~or any portion of Agent’s or any Lender’s claim(s) for repayment of the Obligations or (h) any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a borrower or a guarantor. Each Borrower hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of receivership or bankruptcy of any Borrower, protest or notice with respect to the Obligations and all demands whatsoever, and covenants that this guaranty will not be discharged, except by complete and irrevocable payment and performance of the Obligations. No notice to any Borrower or any other party shall be required for Agent or any Lender to make demand hereunder. Such demand shall constitute a mature and liquidated claim against the applicable Borrower. Upon the occurrence of any Event of Default, Agent or any Lender may, in its sole election, proceed directly and at once, without notice, against all or any Borrower to collect and recover the full amount or any portion of the Obligations, without first proceeding against any other Borrower or any other Person, or any security or collateral for the Obligations. During the existence of an Event of Default, Agent and each Lender shall have the exclusive right to determine the application of payments and credits, if any from any Borrower, any other Person or any security or collateral for the Obligations, on account of the Obligations or of any other liability of any Borrower to Agent or any Lender. At any time after and during the continuance of an Event of Default, Agent and each Lender may, in its sole discretion, without notice to any Borrower and regardless of the acceptance of any collateral for the payment hereof, appropriate and apply toward payment of the Obligations (i) any indebtedness due or to become due from Agent or any Lender to such Borrower and (ii) any moneys, credits or other property belonging to such Borrower at any time held by or coming into the possession of Agent or any Lender or any Affiliates thereof, whether for deposit or otherwise. Notwithstanding anything to the contrary set forth in this Section 2.13, it is the intent of the parties hereto that the liability incurred by each Borrower in respect of the Obligations of the other Borrowers (and any Lien granted by each ~~Guarantor~~ Borrower to secure such Obligations), not constitute a fraudulent conveyance under Section 548 of the United States Bankruptcy Code or a fraudulent conveyance or fraudulent transfer under the provisions of any applicable law of any state or other governmental unit (A“Fraudulent Conveyance”). Consequently, each Borrower, Agent and each Lender hereby agree that if a court of competent jurisdiction determines that the incurrence of liability by any Borrower in respect of the Obligations of any other Borrower (or any Liens granted by such Borrower to secure such Obligations) would, but for the application of this sentence, constitute a Fraudulent Conveyance, such liability (and such Liens) shall be ~~absolute~~ valid and ~~unconditional~~ enforceable only to the maximum extent that would not cause the same to constitute a Fraudulent Conveyance, and this Agreement and the other Loan Documents shall ~~remain in full force and effect (or~~ automatically be ~~reinstated) until the Guaranteed Indebtedness shall~~ deemed to have been ~~fully and indefeasibly paid~~amended accordingly. Each Borrower expressly waives all rights it may have now or in the future under any statute, ~~the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration of any applicable preference~~ or ~~similar period pursuant to any Insolvency Law~~at common law, or at law or in equity, ~~without any claim having been made before the expiration of such period asserting an interest in all~~ or ~~any part of any payment(s) received by Buyer~~otherwise, ~~and (B) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified~~ to compel Agent or ~~impaired on the occurrence from time~~ Lenders to ~~time of any event, including any of the following, whether~~ marshal assets or ~~not with notice~~ to or the consent of each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement of the time for payment or performance or renewal or refinancing) of any of the Repurchase Obligations, Guarantor Liabilities, (2) the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer of any Purchased Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities (in each case, whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the Repurchase Obligations or the Guarantor Liabilities, whether by Buyer or in connection with any Insolvency Proceeding affecting any Guarantor or any other Person who, or any of whose property, shall at the time in question be obligated proceed in respect of the ~~Repurchase~~ Obligations ~~or the Guarantor Liabilities, the~~ guaranteed hereunder against any other ~~duties and obligations under the Repurchase Documents~~ Borrower or any ~~part of the foregoing, or (5) to the extent permitted by Requirements of Law~~Guarantor, any other ~~event~~party or against any security for the payment and performance of the Obligations before proceeding against, ~~occurrence~~or as a condition to proceeding against, ~~action~~ such Borrower. It is agreed among each Borrower, Agent and Lenders that the foregoing waivers are of the essence of the transaction contemplated by this Agreement and the other Loan Documents and that, but for the provisions of this Section 2.13 and such waivers, Agent and Lenders would decline to enter into this Agreement. Each Borrower agrees that the provisions of this Section 2.13 are for the benefit of Agent and Lenders and their respective successors, transferees, endorsees and assigns, and nothing herein contained shall impair, as between any other Borrower and Agent or ~~circumstance~~ Lenders, the obligations of such other Borrower under the Loan Documents. Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, and except as set forth in Section 2.13, each Borrower hereby expressly and irrevocably subordinates to payment of the Obligations any and all rights at law or in equity to subrogation, reimbursement, exoneration, contribution, indemnification or set off (including those set forth in Section 2.14) and any and all defenses available to a surety, guarantor or accommodation co-obligor until the Obligations are indefeasibly paid in full in cash. Each Borrower acknowledges and agrees that ~~would~~this subordination is intended to benefit Agent and Lenders and shall not limit or otherwise affect such Borrower’s liability hereunder or the enforceability of this Section 2.13, and that Agent, Lenders and their respective successors and assigns are intended third party beneficiaries of the waivers and agreements set forth in this Section 2.13. If Agent or any Lender may, under applicable law, proceed to realize its benefits under any of the Loan Documents giving Agent or such Lender a Lien upon any Collateral, whether owned by any Borrower or by any other Person, either by judicial foreclosure or by non-judicial sale or enforcement, Agent or any Lender may, at its sole option, determine which of its remedies or rights it may pursue without affecting any of its rights and remedies under this Section 2.13. If, in the ~~absence of this Section 6.28, result in the release or discharge of any or all of Guarantors from the performance or observance~~ exercise of any of ~~the Guarantor Liabilities, (iii) Buyer shall not be required first to initiate any suit or to exhaust~~ its remedies against any Guarantor or any other Person to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, each Guarantor shall be and remain directly and unconditionally liable for all sums due under this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantor, and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor, or any release of any such other Guarantor, shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, ~~express~~ Agent or ~~implied~~any Lender shall forfeit any of its rights or remedies, ~~or as~~ including its right to enter a ~~matter of Requirements of Law, of Buyer~~ deficiency judgment against ~~Guarantors (or of~~ any ~~Guarantor against another Guarantor or Seller, Pledgor~~ Borrower or any other ~~Person obligated under the Repurchase Documents)~~Person, ~~and (v) on disposition by Buyer~~ whether because of any ~~property encumbered~~ applicable laws pertaining to “election of remedies” or the like, each Borrower hereby consents to such action by Agent or such Lender and waives any ~~Purchased Assets~~claim based upon such action, ~~Pledged Collateral~~ even if such action by Agent or such Lender shall result in a full or partial loss of any rights of subrogation that each Borrower might otherwise have had but for such action by Agent or such Lender. Any election of remedies that results in the denial or impairment of the right of Agent or any ~~collateral~~Lender to seek a deficiency judgment against any Borrower shall not impair any other Borrower’s obligation to pay the full amount of the Obligations. In the event Agent or any Lender shall bid at any foreclosure or trustee’s sale or at any private sale permitted by law or the Loan Documents, ~~property~~ Agent or ~~security for~~ such Lender may bid all or less than the ~~Guarantor Liabilities each Guarantor~~ amount of the Obligations and the amount of such bid need not be paid by Agent or such Lender but shall be credited against the Obligations. The amount of the successful bid at any such sale, whether Agent, Lender or any other party is the successful bidder, shall be conclusively deemed to be the fair market value of the Collateral and the difference between such bid amount and the remaining balance of the Obligations shall be conclusively deemed to be the amount of the Obligations guaranteed under this Section 2.13, notwithstanding that any present or future law or court decision or ruling may have the effect of reducing the amount of any deficiency claim to which Agent or any Lender might otherwise be entitled but for such bidding at any such sale. The liability of Borrowers under this Section 2.13 is in addition to and shall ~~remain jointly~~ be cumulative with all liabilities of each Borrower to Agent and ~~severally liable for~~ Lenders under this Agreement and the other Loan Documents to which such Borrower is a party or in respect of any ~~deficiency~~Obligations or obligation of the other Borrower, without any limitation as to amount, unless the instrument or agreement evidencing or creating such other liability specifically provides to the contrary.

Appears in 1 contract

Samples: Loan and Security Agreement (Wabash National Corp /De)

Appears in 1 contract

Samples: Loan and Security Agreement (Deeter Foundry Inc)

Joint and Several Obligations. ~~(a) At all times when there is more than one Guarantor under~~ Notwithstanding any other provision of this ~~Guaranty~~Credit Agreement, ~~each Guarantor hereby acknowledges and agrees that~~ (i) each ~~Guarantor~~ of the covenants, agreements and obligations of Borrowers set forth in this Credit Agreement or in any other Loan Document shall be ~~jointly~~ the joint and ~~severally liable~~ several covenants, agreements and obligations of the Borrowers and any other guarantor, co-borrower, endorser or other surety, regardless of whether any such Borrower was the actual recipient of the proceeds of a Loan, (ii) all representations and warranties of Borrowers contained in this Credit Agreement or in any other Loan Document shall be deemed to ~~Buyer~~ be separately made by each Borrower and (iii) any notice, request, consent, report or other information or agreement delivered by any Borrower shall be deemed for all purposes to be consented to, ratified and delivered by Borrowers. In furtherance of the foregoing, Borrowers acknowledge and agree that each covenant, agreement and obligation of Borrowers in this Credit Agreement or any other Loan Document is the joint and several obligation of Borrowers. Notwithstanding the foregoing, the liability of each of the Several Borrowers to the Lenders shall be limited to the sum of: (a) the obligations of such Several Borrower to the Lenders for Loans and other advances of credit made by the Lenders directly or indirectly to such Several Borrower, plus (b) the obligations of any other Borrower(s) to the Lenders to repay the principal, interest and costs of borrowed funds (the "Indirect Liability"), to the extent, but only to the extent that such other Borrower(s) has made loans, advances of credit or other contributions of cash or property, directly or indirectly to such Several Borrower. Notwithstanding any contrary provisions of ss.7.1-7.17, all loans and investments of any kind made by one Borrower to or in any other Borrower (including without limitation to or in any Several Borrower) from and after the date of this Credit Agreement shall be deemed to derive, to the maximum extent ~~permitted by Requirements of Law for all Guarantor Liabilities~~possible, ~~(ii)~~ from the liability of each Guarantor (A) shall be absolute and unconditional and shall remain in full force and effect (or be reinstated) until the Guaranteed Indebtedness shall have been fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration of any applicable preference or similar period pursuant to any Insolvency Law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by Buyer, and (B) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any of the following, whether or not with notice to or the consent of each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement of the time for payment or performance or renewal or refinancing) of any of the Repurchase Obligations, Guarantor Liabilities, (2) the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer of any Purchased Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities (in each case, whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the Repurchase Obligations or the Guarantor Liabilities, whether by Buyer or in connection with any Insolvency Proceeding affecting any Guarantor or any other Person who, or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents or any part of the foregoing, or (5) Lenders' Loans to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section 6.28, result in the release or discharge of any or all of Guarantors from the performance or observance of any of the Guarantor Liabilities, (iii) Buyer shall not be required first to initiate any suit or to exhaust its remedies against any Guarantor or any other Person to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, each Guarantor shall be and remain directly and unconditionally liable for all sums due under this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantor, and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor, or any release of any such other Guarantor, shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunderlending Borrower, and shall ~~not impair or affect~~ be the ~~rights and remedies, express or implied, or as a matter~~ direct liability of ~~Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under~~ the ~~Repurchase Documents), and (v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for~~ Borrower receiving such funds to the ~~Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally liable for any deficiency~~Lenders.

Appears in 1 contract

Samples: Revolving Credit and Term Loan Agreement (Chemfab Corp)

Joint and Several Obligations. ~~(a) At~~ All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to the Lender or the Issuer to any Borrower, failure of the Lender or the Issuer to give any Borrower notice of borrowing or any other notice, any failure of the Lender or the Issuer to pursue or preserve its rights against any Borrower, the release by the Lender or the Issuer of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by the Lender or the Issuer to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all ~~times when there is more than one Guarantor under this Guaranty~~suretyship defenses. Without limiting the generality of the foregoing, each ~~Guarantor~~ of the Borrowers hereby acknowledges and agrees that ~~(i)~~ any and all actions, inactions or omissions by any one or more, or all, of the Borrowers in connection with, related to or otherwise affecting this Agreement or any of the other Loan Documents are the obligations of, and inure to and are binding upon, each ~~Guarantor shall be~~ and all of the Borrowers, jointly and ~~severally liable to Buyer to~~ severally. Each covenant, agreement, obligation, representation and warranty of the ~~maximum extent permitted by Requirements of Law for all Guarantor Liabilities, (ii)~~ Borrowers contained herein constitutes the ~~liability~~ joint and several undertaking of each ~~Guarantor (A) shall~~ Borrower. Each Borrower acknowledges that the obligations of such Borrower undertaken herein might be ~~absolute and unconditional and shall remain~~ construed to consist, at least in part, of the guaranty of obligations of the other Borrower and, in full ~~force~~ recognition of that fact, each Borrower consents and ~~effect (or be reinstated) until~~ agrees that the ~~Guaranteed Indebtedness shall have been fully~~ Lender may, at any time and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration of any applicable preference or similar period pursuant to any Insolvency Law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by Buyer, and (B) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the occurrence from time to ~~time of any event~~time, ~~including any of the following~~without notice or demand, whether before or ~~not with notice~~ after any actual or purported termination, repudiation or revocation of this Agreement by any Borrower, and without affecting the enforceability or continuing effectiveness hereof as to such Borrower: (a) supplement, restate, modify, amend, increase, decrease, extend, renew or ~~the consent of each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement of~~ otherwise change the time for payment or ~~performance~~ the terms of this Agreement or ~~renewal~~ any part thereof, including any increase or ~~refinancing~~decrease of the rate(s) of interest thereon; (b) supplement, restate, modify, amend, increase, decrease or waive, or enter into or give any agreement, approval or consent with respect to, this Agreement or any part thereof, or any of the ~~Repurchase Obligations~~Loan Documents, ~~Guarantor Liabilities~~or any condition, covenant, default, remedy, right, representation or term thereof or thereunder; (2c) accept partial payments; (d) release, reconvey, terminate, waive, abandon, fail to perfect, subordinate, exchange, substitute, transfer or enforce any security or guarantees, and apply any security and direct the ~~failure~~ order or manner of sale thereof as the Lender, in its sole and absolute discretion may determine; (e) release any Person from any personal liability with respect to ~~give notice~~ this Agreement or any part thereof; (f) settle, release on terms satisfactory to ~~each Guarantor~~ the Lender or by operation of applicable law or otherwise liquidate or enforce any security or guaranty in any manner, consent to the transfer of any security and bid and purchase at any sale; or (g) consent to the merger, change or any other restructuring or termination of the ~~occurrence of an Event of Default, (3) the release, substitution~~ corporate or ~~exchange by Buyer~~ partnership existence of any ~~Purchased Asset~~Borrower, ~~Pledged Collateral~~ or any ~~collateral~~other Person, ~~property~~ and correspondingly restructure the obligations evidenced hereby, and any such merger, change, restructuring or ~~security for~~ termination shall not affect the ~~Repurchase Documents~~ liability of any Borrower or the ~~Guarantor Liabilities (in each case~~continuing effectiveness hereof, ~~whether with or without consideration)~~ or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for enforceability hereof with respect to all or any part of the Repurchase Obligations or the Guarantor Liabilities, whether by Buyer or in connection with any Insolvency Proceeding affecting any Guarantor or any other Person who, or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations or the Guarantor Liabilitiesobligations evidenced hereby. Each Borrower states and acknowledges that: (w) pursuant to this Agreement, the ~~other duties and obligations under the Repurchase Documents or any part of the foregoing, or (5)~~ Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent ~~permitted by Requirements~~ possible as if they were merged into a single corporate entity and that this Agreement reflects the establishment of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section 6.28, result in the release or discharge of any or all of Guarantors from the performance or observance of any of the Guarantor Liabilities, (iii) Buyer shall credit facilities which would not otherwise be ~~required first~~ available to initiate any suit or to exhaust its remedies against any Guarantor or any other Person to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and such Borrower if each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, each Guarantor shall be and remain directly and unconditionally liable for all sums due under this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantor, and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor, or any release of any such other Guarantor, shall Borrower were not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents), and (v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally liable for payment of the obligations; (x) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (y) it is both a condition precedent to the obligations of the Lender hereunder and a desire of the Borrowers that each Borrower execute and deliver to the Lender this Agreement; and (z) the Borrowers have requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement. Each Borrower agrees if such Borrower’s joint and several liability hereunder, or if any ~~deficiency~~Liens securing such joint and several liability, would, but for the application of this Section 14.2, be unenforceable under applicable law, such joint and several liability and each such Lien shall be valid and enforceable to the maximum extent that would not cause such joint and several liability or such Lien to be unenforceable under applicable law, and such joint and several liability and such Lien shall be deemed to have been automatically amended accordingly at all relevant times. To the extent that any Borrower shall, under this Agreement as a joint and several obligor, repay any of the Obligations constituting Loans or Advances made to another Borrower hereunder or other Obligations incurred directly and primarily by any other Borrower (an “Accommodation Payment”), then the Borrower making such Accommodation Payment shall be entitled to contribution and indemnification from, and, be reimbursed by, each of the other Borrowers in an amount, for each of such other Borrowers, equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Borrower’s “Allocable Amount” (as defined below) and the denominator of which is the sum of the Allocable Amounts of all of the Borrowers. As of any date of determination, the “Allocable Amount” of each Borrower shall be equal to the maximum amount of liability for Accommodation Payments which could be asserted against such Borrower hereunder without (A) rendering such Borrower “insolvent” within the meaning of Section 101(31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (B) leaving such Borrower with unreasonably small capital or assets, within the meaning of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, Section 4 of the UFTA, or (C) leaving such Borrower unable to pay its debts as they become due within the meaning of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA. All rights and claims of contribution, indemnification and reimbursement under this Section shall be subordinate in right of payment to the prior payment in full of the Secured Obligations. The provisions of this Section shall, to the extent expressly inconsistent with any provision in any Loan Document, supersede such inconsistent provision.

Appears in 1 contract

Samples: Credit and Security Agreement (Sifco Industries Inc)

Joint and Several Obligations. (a) ~~At all times when there is more than one Guarantor under this Guaranty, each Guarantor hereby acknowledges and agrees that (i) each Guarantor~~ Each of the Borrowers shall be jointly and severally liable hereunder and under each of the other Loan Documents with respect to ~~Buyer~~ all Obligations, regardless of which of the Borrowers actually receives the proceeds of the Loans or the benefit of any other extensions of credit hereunder, or the manner in which the Lead Borrower, the Borrowers, the Administrative Agent, the Lenders or any of the Issuing Banks account therefore in their respective books and records. In furtherance and not in limitation of the foregoing, (i) each Borrower’s obligations and liabilities with respect to ~~the maximum extent permitted by Requirements~~ proceeds of ~~Law~~ Loans which it receives or Letters of Credit issued for ~~all Guarantor Liabilities~~its account, and related fees, costs and expenses, and (ii) each Borrower’s obligations and liabilities arising as a result of the joint and several liability of ~~each Guarantor~~ the Borrowers hereunder with respect to proceeds of Loans received by, or Letters of Credit issued for the account of, any of the other Borrowers, together with the related fees, costs and expenses, shall be separate and distinct obligations, both of which are primary obligations of such Borrower. Except as otherwise provided in any Loan Document, the joint and several liability of any of the Borrowers shall not be impaired or released by (A) ~~shall be absolute and unconditional and shall remain in full force and effect (or be reinstated) until~~ the ~~Guaranteed Indebtedness shall have been fully and indefeasibly paid~~failure of the Administrative Agent, any Lender, the ~~Guarantor Liabilities shall have been fully and indefeasibly paid~~Collateral Agent or any Issuing Bank, ~~performed and discharged~~any successors or assigns thereof, or any holder of any Note or any of the Obligations to assert any claim or demand or to exercise or enforce any right, power or remedy against the Lead Borrower, any Borrower, any Subsidiary of any Borrower, any other Person, the ~~Repurchase Documents have been terminated and~~ Collateral or otherwise; (B) any extension or renewal for any period (whether or not longer than the ~~expiration~~ original period) or exchange of any ~~applicable preference~~ of the Obligations or ~~similar period pursuant to~~ the release or compromise of any ~~Insolvency Law~~obligation of any nature of any Person with respect thereto; (C) the surrender, release or ~~at law or in equity, without any claim having been made before the expiration~~ exchange of ~~such period asserting an interest in~~ all or any part of any payment(s) received by Buyer, and (B) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any of the following, whether or not with notice to or the consent of each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment property (including ~~any extension or postponement of~~ without limitation the ~~time for payment or~~ Collateral) securing payment, performance ~~or renewal or refinancing)~~ and/or observance of any of the ~~Repurchase Obligations, Guarantor Liabilities,~~ Obligations or the compromise or extension or renewal for any period (2whether or not longer than the original period) ~~the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer~~ of any Purchased Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities (in each case, whether with or without consideration) or the acceptance by Buyer obligations of any ~~additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release~~ nature of any Person ~~primarily~~ with respect to any such property; (D) any action or ~~secondarily liable for all or any~~ inaction on the part of the ~~Repurchase Obligations~~ Administrative Agent, the Collateral Agent, any Lender or ~~the Guarantor Liabilities~~any Issuing Bank, ~~whether by Buyer or in connection with any Insolvency Proceeding affecting any Guarantor~~ or any other ~~Person who~~event or condition with respect to any other Borrower, including any such action or inaction or other event or condition, which might otherwise constitute a defense available to, or a discharge of, such Borrower, or a guarantor or surety of or for any ~~of whose property, shall at the time in question be obligated in respect~~ or all of the ~~Repurchase Obligations~~ Obligations; and (E) any other act, matter or ~~the Guarantor Liabilities, the~~ thing (other ~~duties and obligations under the Repurchase Documents~~ than payment or ~~any part~~ performance of the ~~foregoing,~~ Obligations) which would or ~~(5) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would~~might, in the absence of this ~~Section 6.28~~provision, ~~result in~~ operate to release, discharge or otherwise prejudicially affect the ~~release or discharge~~ obligations of any or all of Guarantors from the performance or observance of any of the Guarantor Liabilities, (iii) Buyer shall not be required first to initiate any suit or to exhaust its remedies against any Guarantor such Borrower or any other Person to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, each Guarantor shall be and remain directly and unconditionally liable for all sums due under this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantor, and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor, or any release of any such other Guarantor, shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents), and (v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally liable for any deficiencyBorrower.

Appears in 1 contract

Samples: Credit Agreement (TPC Group LLC)

Joint and Several Obligations. (a) At all times ~~when~~ during which there is more than one ~~Guarantor~~ (1) Pledgor under this ~~Guaranty~~Agreement, each Guarantor hereby acknowledges and agrees that (i) each Guarantor shall be jointly and severally liable to Buyer to the maximum extent permitted by Requirements of Law for all Guarantor Liabilities, (ii) the liability of each ~~Guarantor~~ Pledgor shall be joint and several and the joint and several obligations of each Pledgor under this Agreement and, as applicable, the other Repurchase Documents (Aa) (i) shall be absolute and unconditional and shall remain in full force and effect (or be reinstated) until all the ~~Guaranteed Indebtedness~~ Pledged Obligations shall have been ~~fully~~ paid and ~~indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated~~ satisfied in full and the expiration of any applicable preference or similar period pursuant to any ~~Insolvency Law~~bankruptcy, insolvency, reorganization, moratorium or similar law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by ~~Buyer~~the Purchaser, and (Bii) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the ~~occurrence~~ happening from time to time of any event, ~~including~~ including, without limitation, any of the following, whether or not with notice to or the consent of ~~each Guarantor~~the Pledgor or any other Person, (1A) the waiver, compromise, settlement, release, termination or amendment (~~including~~ including, without limitation, any extension or postponement of the time for payment or performance or renewal or refinancing) of any or all of the obligations or agreements of any Seller, the Guarantors or the Pledgor under the Repurchase ~~Obligations, Guarantor Liabilities~~Agreement or any Repurchase Document, (2B) the failure to give notice to ~~each Guarantor~~ the Seller, the Guarantors or the Pledgor of the occurrence of an Event of ~~Default~~Default under any of the Repurchase Documents, (3C) the release, substitution or exchange by ~~Buyer~~ the Purchaser of any or all of the Purchased ~~Asset,~~ Items and/or Pledged Collateral ~~or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities~~ (~~in each case,~~ whether with or without consideration) or the acceptance by ~~Buyer~~ the Purchaser of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4D) the release of any Person primarily or secondarily liable for all or any part of the ~~Repurchase Obligations or the Guarantor Liabilities~~Pledged Obligations, whether by ~~Buyer~~ the Purchaser or in connection with any ~~Insolvency Proceeding~~ voluntary or involuntary liquidation, dissolution, receivership, insolvency, bankruptcy, assignment for the benefit of creditors or similar event or proceeding affecting any ~~Guarantor~~ or all of the Seller, the Guarantors, the Pledgor or any other Person who, or any of whose ~~property~~assets or Property, shall at the time in question be obligated in respect of the ~~Repurchase Obligations or the Guarantor Liabilities~~Obligations, the ~~other duties and obligations under the Repurchase Documents~~ Pledged Obligations or any part of the foregoing, or (5E) to the extent permitted by ~~Requirements of~~ Applicable Law, any other event, occurrence, action or circumstance that would, in the absence of this Section ~~6.28~~7.13, result in the release or discharge of any or all of ~~Guarantors~~ the Pledgors from the performance or observance of any of obligation, covenant or agreement contained in the ~~Guarantor Liabilities,~~ Repurchase Agreement or the Repurchase Documents; (~~iii~~b) ~~Buyer~~ each Pledgor expressly agrees that the Purchaser shall not be required first to initiate any suit or to exhaust its remedies against ~~any Guarantor~~ the Seller, the Guarantors, the Pledgor or any other Person to become liable, or against any of the Purchased ~~Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents~~ Items or the ~~Guarantor Liabilities~~Pledged Collateral, in order to enforce this ~~Guaranty~~ Agreement or ~~other~~ the Repurchase Documents and each ~~Guarantor~~ Pledgor expressly agrees that, notwithstanding the occurrence of any of the foregoing, each ~~Guarantor~~ Pledgor shall be and remain directly and ~~unconditionally~~ primarily liable for all sums due under this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantor, and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor, Agreement or any ~~release~~ of any such other Guarantor, shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents); and, ~~and~~ (vc) on disposition by ~~Buyer~~ the Purchaser of any ~~property~~ assets or Property encumbered by any Purchased ~~Assets~~Items or the Pledged Collateral, ~~Pledged Collateral or any collateral, property or security for the Guarantor Liabilities~~ each ~~Guarantor~~ Pledgor shall be and shall remain jointly and severally liable for any deficiency.

Appears in 1 contract

Samples: Pledge and Security Agreement (Municipal Mortgage & Equity LLC)

Joint and Several Obligations. (a) ~~At all times when there~~ Each of the Subsidiaries and Controlled Partnerships named in Exhibit G attached hereto and made a part hereof shall execute and deliver to the Agent as of the Closing Date either an Amended and Restated Subsidiary Guaranty Agreement or Amended and Restated Partnership Guaranty Agreement or a Subsidiary Guaranty Agreement or Partnership Guaranty Agreement, and each other Subsidiary and Controlled Partnership that is ~~more than one Guarantor under this Guaranty~~to become after the Closing Date a Participating Subsidiary or Participating Partnership, ~~each Guarantor hereby acknowledges~~ as the case may be, shall, at the time it is to become a Participating Subsidiary or Participating Partnership, execute and ~~agrees that~~ deliver to the Agent a Subsidiary Guaranty Agreement or Partnership Guaranty Agreement, as the case may be in the form attached hereto as Exhibit C-2 and Exhibit C-1, respectively ("collectively the "Guaranty Agreements"). Notwithstanding the foregoing, in the event of the Acquisition of Surgical Health and until the obtaining of the consent to amendments to the Indenture dated June 15, 1994 relating to the Surgical Health Subordinated Indebtedness in order to permit Surgical Health to deliver its Guaranty Agreement (the "Necessary Consent"), Surgical Health shall not be deemed a Participating Subsidiary, provided the amount of loans and investments by Borrower and its Participating Subsidiaries in Surgical Health do not exceed the sum of (i) ~~each Guarantor shall be jointly~~ the amount set forth in Section 7.8(a)(7)(F) and ~~severally liable to Buyer to the maximum extent permitted by Requirements of Law for all Guarantor Liabilities,~~ (ii) $50,000,000. Promptly upon the ~~liability~~ Acquisition of ~~each Guarantor (A)~~ Surgical Health the Borrower shall use its best efforts to cause the Necessary Consent to be ~~absolute and unconditional~~ obtained and shall ~~remain in full force and effect~~ cause each Participating Subsidiary acquiring Surgical Health Subordinated Indebtedness to immediately give its consent to the amendments. The Borrower shall cause Surgical Health to deliver to the Agent its Guaranty Agreement not later than fifteen (~~or be reinstated~~15) ~~until~~ days after obtaining the ~~Guaranteed Indebtedness~~ Necessary Consent. Until there shall have been ~~fully and indefeasibly paid~~delivered to the Agent the Guaranty Agreement of Surgical Health the amount of the Revolving Facility available to the Borrower shall be reduced by a sum equal to the product of 1.15 times the outstanding principal amount of Surgical Health Subordinated Indebtedness not owned by Borrower or a Participating Subsidiary. Notwithstanding any other provision of this Agreement, ~~the Guarantor Liabilities~~ until such time as Surgical Health shall have ~~been fully and indefeasibly paid~~delivered its Guaranty Agreement, ~~performed and discharged~~all loans by the Borrower to Surgical Health shall be evidenced by a note or notes, which note or notes shall be promptly delivered to the ~~Repurchase Documents have been terminated and~~ Agent as required by the ~~expiration~~ Pledge Agreement. Upon the acquisition by Borrower or a Participating Subsidiary of any ~~applicable preference or similar period pursuant~~ Surgical Health Subordinated Indebtedness it shall immediately pledge, assign and deliver to ~~any Insolvency Law~~the Agent the notes evidencing such Indebtedness, ~~or at law or in equity, without any claim having been made before the expiration of~~ such period asserting an interest in all or any part of any payment(s) received by Buyer, and (B) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the occurrence from time notes to time of any event, including any of the following, whether or not with notice to or the consent of each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement of the time constitute security for payment ~~or performance or renewal or refinancing)~~ of ~~any of the Repurchase~~ Credit Obligations, Guarantor Liabilities, (2) the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer of any Purchased Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities (in each case, whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the Repurchase Obligations or the Guarantor Liabilities, whether by Buyer or in connection with any Insolvency Proceeding affecting any Guarantor or any other Person who, or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents or any part of the foregoing, or (5) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section 6.28, result in the release or discharge of any or all of Guarantors from the performance or observance of any of the Guarantor Liabilities, (iii) Buyer shall not be required first to initiate any suit or to exhaust its remedies against any Guarantor or any other Person to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, each Guarantor shall be and remain directly and unconditionally liable for all sums due under this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantor, and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor, or any release of any such other Guarantor, shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents), and (v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally liable for any deficiency.

Appears in 1 contract

Samples: Credit Agreement (Healthsouth Corp)

Joint and Several Obligations. ~~(a) At all times when there is more than one Guarantor under this Guaranty, each Guarantor hereby acknowledges and agrees that (i) each Guarantor~~ Each of the Makers shall be jointly and severally liable ~~to Buyer~~ hereunder regardless of which of the Makers actually receives the proceeds of any indebtedness evidenced hereby, or the manner in which the Makers, the Administrative Agent or any of the Lenders account therefor in their respective books and records. Each Maker’s obligations and liabilities with respect to the ~~maximum extent permitted~~ indebtedness evidenced hereby, and each Maker’s obligations and liabilities arising as a result of the joint and several liability of the Makers hereunder, shall be primary and distinct obligations of such Maker. The joint and several liability of each Maker hereunder shall be impaired or released by ~~Requirements~~ (i) any failure of ~~Law for all Guarantor Liabilities~~the Payee, the Administrative Agent, any Issuing Bank or any other Lender, or any successors or assigns thereof, to assert any claim or demand or to exercise or enforce any right, power or remedy against any other Maker, any other Loan Party, any other Person, any collateral security or otherwise; (ii) any extension or renewal for any period (whether or not longer than the ~~liability of each Guarantor (A~~original period) ~~shall be absolute and unconditional and shall remain in full force and effect (~~or be reinstated) until the Guaranteed Indebtedness shall have been fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration exchange of any ~~applicable preference~~ of the indebtedness evidenced hereby or ~~similar period pursuant to~~ the release or compromise of any ~~Insolvency Law~~obligation of any nature of any Person with respect thereto; (iii) any surrender, release or ~~at law or in equity, without any claim having been made before the expiration~~ exchange of ~~such period asserting an interest in~~ all or any part of any ~~payment(s) received by Buyer~~collateral now or hereafter securing payment, and (B) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any of the following, whether or not with notice to or the consent of each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement of the time for payment or performance ~~or renewal or refinancing)~~ and/or observance of any of the ~~Repurchase Obligations, Guarantor Liabilities,~~ indebtedness evidenced hereby or the compromise or extension or renewal for any period (2whether or not longer than the original period) ~~the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer~~ of any Purchased Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities (in each case, whether with or without consideration) or the acceptance by Buyer obligations of any ~~additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release~~ nature of any Person ~~primarily~~ with respect to any such property; (iv) any action or ~~secondarily liable for all or any~~ inaction on the part of the ~~Repurchase Obligations or~~ Payee, the ~~Guarantor Liabilities~~Administrative Agent, ~~whether by Buyer or in connection with~~ any ~~Insolvency Proceeding affecting any Guarantor~~ Issuing Bank or any other ~~Person who~~Lender, or any other event or condition with respect to any other Maker, including any such action or inaction or other event or condition, which might otherwise constitute a defense available to, or a discharge of, such other Maker, or a guarantor or surety of ~~whose property, shall at the time in question be obligated in respect~~ or for any or all of the ~~Repurchase Obligations~~ indebtedness evidenced hereby; and (v) any other act, matter or ~~the Guarantor Liabilities, the~~ thing (other ~~duties and obligations under the Repurchase Documents~~ than payment or ~~any part~~ performance of the ~~foregoing,~~ indebtedness evidenced hereby) which would or ~~(5) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would~~might, in the absence of this ~~Section 6.28~~provision, ~~result in~~ operate to release, discharge or otherwise prejudicially affect the ~~release or discharge~~ obligations of any or all of Guarantors from the performance or observance of any of the Guarantor Liabilities, (iii) Buyer shall not be required first to initiate any suit or to exhaust its remedies against any Guarantor such or any other ~~Person~~ Maker. Signature Page to ~~become liable~~Swingline Note ALLSCRIPTS-MISYS HEALTHCARE SOLUTIONS, INC. (F/K/A ALLSCRIPTS HEALTHCARE SOLUTIONS, INC.), a Delaware corporation By: Name: Title: ALLSCRIPTS, LLC, a Delaware limited liability company By: Name: Title: A4 HEALTH SYSTEMS, INC., a North Carolina corporation By: Name: Title: A4 REALTY, LLC, a North Carolina limited liability company By: Name: Title: EXTENDED CARE INFORMATION NETWORK, INC., a Delaware corporation By: Name: Title: MISYS HEALTHCARE SYSTEMS, LLC, a North Carolina limited liability company By: Allscripts-Misys Healthcare Solutions, Inc., Its sole member By: Name: Title: EXHIBIT D-1 JOINDER AGREEMENT FOR LOAN GUARANTOR THIS JOINDER AGREEMENT (this “Agreement”), dated as of , 200 , is entered into between , a (the “New Subsidiary”) and JPMORGAN CHASE BANK, N.A., in its capacity as administrative agent (the “Administrative Agent”) under that certain Second Amended and Restated Credit Agreement, dated as of February 10, 2009 among Allscripts-Misys Healthcare Solutions, Inc., a Delaware corporation, Allscripts, LLC, a Delaware limited liability company, A4 Health Systems, Inc., a North Carolina corporation, A4 Realty, LLC, a North Carolina limited liability company, Extended Care Information Network, Inc., a Delaware corporation, and Misys Healthcare Systems, LLC, a North Carolina limited liability company (the “Borrowers”), the Loan Parties party thereto, the Lenders party thereto and the Administrative Agent (as the same may be amended, modified, extended or ~~against any~~ restated from time to time, the “Credit Agreement”). All capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Credit Agreement. The New Subsidiary and the Administrative Agent, for the benefit of the ~~Purchased Assets~~Lenders, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, each Guarantor shall be and remain directly and unconditionally liable for all sums due under this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantor, and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor, or any release of any such other Guarantor, shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or hereby agree as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents), and (v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally liable for any deficiency.follows:

Appears in 1 contract

Samples: Credit Agreement (Allscripts-Misys Healthcare Solutions, Inc.)

Appears in 1 contract

Samples: Credit Agreement (Health Care Reit Inc /De/)

Joint and Several Obligations. ~~(a) At all times when there is more than one Guarantor under this Guaranty, each Guarantor~~ a. Seller hereby acknowledges and agrees that (i) ~~each Guarantor~~ Seller shall be jointly and severally liable with the sellers under each Other Repurchase Agreement to Buyer to the maximum extent permitted by Requirements of Law for all ~~Guarantor Liabilities~~Repurchase Obligations and all Other Facility Repurchase Obligations, (ii) the liability of ~~each Guarantor~~ Seller (A) shall be absolute and unconditional and shall remain in full force and effect (or be reinstated) until ~~the Guaranteed Indebtedness~~ all Repurchase Obligations and all Other Facility Repurchase Obligations shall have been ~~fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated~~ paid in full and the expiration of any applicable preference or similar period pursuant to any Insolvency Law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by Buyer, and (B) until such payment has been ~~made and such obligations satisfied~~made, shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any of the following, whether or not with notice to or the consent of ~~each Guarantor~~Seller, (1) the waiver, compromise, settlement, release, modification, supplementation, termination or amendment (including any extension or postponement of the time for payment or performance or renewal or refinancing) of any of the Repurchase Obligations, ~~Guarantor Liabilities~~Repurchase Documents, any Other Facility Repurchase Obligations or “Repurchase Documents” (as defined in the Kensington Repurchase Agreement) or the “Facility Documents” (as defined in the Gloss Loan Agreement), (2) the failure to give notice to ~~each Guarantor~~ Seller of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer of any Purchased Asset or “Purchased Asset, ” (as defined in the Kensington Repurchase Agreement) or “Pledged ~~Collateral or any collateral, property or security for~~ Asset” (as defined in the ~~Repurchase Documents or the Guarantor Liabilities~~ Gloss Loan Agreement) (~~in each case,~~ whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the Repurchase Obligations or ~~the Guarantor Liabilities~~any Other Facility Repurchase Obligations, whether by Buyer or in connection with any Insolvency Proceeding affecting Seller, any ~~Guarantor~~ seller under the Other Repurchase Agreement, or any other Person who, or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations, any Other Facility Repurchase Obligations ~~or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents~~ or any part thereof, (5) the sale, exchange, waiver, surrender or release of any Purchased Asset, “Purchased Asset” (as defined in the ~~foregoing~~Kensington Repurchase Agreement), guarantee or other collateral by Buyer, “Pledged Asset” (as defined in the Gloss Loan Agreement), (6) the failure of Buyer to protect, secure, perfect or insure any Lien at any time held by Buyer as security for amounts owed by Seller or any seller under the Other Repurchase Agreement, or (57) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section ~~6.28~~18.27, result in the release or discharge Seller from the 103 performance or observance of any Repurchase Obligation or ~~all of Guarantors~~ any seller from the performance or observance of any ~~of the Guarantor Liabilities~~Other Facility Repurchase Obligation, (iii) Buyer shall not be required first to initiate any suit or to exhaust its remedies against Seller, any ~~Guarantor~~ seller under the Other Repurchase Agreement or any other Person to become liable, or against any of the Purchased Assets or “Purchased Assets, ” (as defined in the Kensington Repurchase Agreement) or “Pledged ~~Collateral or any collateral, property or security for~~ Assets” (as defined in the ~~Repurchase Documents or the Guarantor Liabilities~~Gloss Loan Agreement), in order to enforce ~~this Guaranty or other~~ the Repurchase Documents and ~~each Guarantor~~ the “Repurchase Documents” (as defined in the Kensington Repurchase Agreement) or the “Facility Documents” (as defined in the Gloss Loan Agreement) and Seller expressly agrees that, notwithstanding the occurrence of any of the foregoing, ~~each Guarantor~~ Seller shall be and remain directly and ~~unconditionally~~ primarily liable for all sums due under ~~this Guaranty~~any of the Repurchase Documents and the “Repurchase Documents” (as defined in the Kensington Repurchase Agreement) or the “Facility Documents” (as defined in the Gloss Loan Agreement), (iv) when making any demand hereunder against Seller or any ~~Guarantor~~of the Purchased Assets, Buyer may, but shall be under no obligation to, make a similar demand on any seller under the Other Repurchase Agreement, or otherwise pursue such rights and remedies as it may have against any seller under the Other Repurchase Agreement or any other ~~Guarantor~~Person or against any collateral security or guarantee related thereto or any right of offset with respect thereto, and any failure by Buyer to make any such ~~demand~~ demand, file suit or otherwise pursue such other rights or remedies or to collect any payments from any such other ~~Guarantor~~seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of any such other ~~Guarantor~~seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve ~~any Guarantor in respect of which~~ Seller if a demand or collection is not made ~~or Guarantors~~ and shall not ~~so released~~ release Seller of ~~their~~ its obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of ~~Requirements of Law~~law, of Buyer against ~~Guarantors~~ Seller (or as used herein, the term “demand” shall include the commencement and continuation of ~~any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents~~legal proceedings), ~~and~~ (v) on disposition by Buyer of any property encumbered by any Purchased Assets or “Purchased Assets” (as defined in the Kensington Repurchase Agreement) or “Pledged Assets” (as defined in the Gloss Loan Agreement), ~~Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor~~ Seller shall be and shall remain jointly and severally liable for any deficiency, (vi) Seller waives (A) any and all notice of the creation, renewal, extension or accrual of any amounts at any time owing to Buyer by any other seller under the “Repurchase Documents” (as defined in the Kensington Repurchase Agreement) or the “Facility Documents” (as defined in the Gloss Loan Agreement) and notice of or proof of reliance by Buyer upon Seller or acceptance of the obligations of Seller under this Section 18.27, and all such amounts, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the obligations of Seller under this Agreement, and all dealings between Seller, on the one hand, and Buyer, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the obligations of Seller under this Agreement and the Other Repurchase Agreement, and (B) diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Seller with respect to any amounts at any time owing to Buyer by Seller under the Repurchase Documents or any other seller under the “Repurchase Documents” (as defined in the Kensington Repurchase Agreement) or the “Facility Documents” (as defined in the Gloss Loan Agreement), and (vii) Seller shall continue to be liable under this Section 18.27 without regard to (A) the validity, regularity or enforceability of any other provision of this Agreement, the Other Repurchase Agreement, any other 104 Repurchase Document or any other “Repurchase Document” (as defined in the Kensington Repurchase Agreement) or the “Facility Documents” (as defined in the Gloss Loan Agreement), any amounts at any time owing to Buyer by Seller under the Repurchase Documents or any seller under the “Repurchase Documents” (as defined in the Kensington Repurchase Agreement) or the “Facility Documents” (as defined in the Gloss Loan Agreement), or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by Buyer, (B) any defense, set off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by Seller against Buyer, or (iii) any other circumstance whatsoever (with or without notice to or knowledge of Seller) which constitutes, or might be construed to constitute, an equitable or legal discharge of Seller for any amounts owing to Buyer by Seller under the Repurchase Documents, or of any seller under the “Repurchase Documents” (as defined in the Kensington Repurchase Agreement) or the “Facility Documents” (as defined in the Gloss Loan Agreement), in bankruptcy or in any other instance.

Appears in 1 contract

Samples: Master Repurchase and Securities Contract (Blackstone Mortgage Trust, Inc.)

Joint and Several Obligations. ~~(a) At~~ All Loans and Advances by the Lenders, all ~~times when there is more than one Guarantor~~ Swing Line Loans by the Swing Line Lender and all Letters of Credit issued by the Issuing Bank to Borrowers under this ~~Guaranty~~Agreement and the Obligations shall constitute one joint and several general obligation of each of the Borrowers. The Agent will maintain a single loan account for Advances to the Borrowers, and each ~~Guarantor hereby acknowledges and agrees that (i) each Guarantor~~ Borrower shall be jointly and severally liable to ~~Buyer~~ the Lenders for all Obligations hereunder, regardless of whether such Obligations arise as a result of Advances to such Borrower, it being stipulated and agreed that Advances hereunder to any Borrower inure to the ~~maximum extent permitted~~ benefit of each of the Borrowers, and that the Lenders are relying on the joint and several liability of the Borrowers in extending credit hereunder. Each Borrower agrees that the joint and several liability of the Borrowers shall not be impaired or affected by ~~Requirements~~ any modification, supplement, extension or amendment of ~~Law~~ any contract or agreement to which the parties thereto may hereafter agree, nor by any delay, extension of time, renewal, compromise or other indulgence granted by the Lenders or the Issuing Bank with respect to any of the Obligations, nor by any other agreements or arrangements whatever with the Borrowers, each Borrower hereby waiving all notice of any such delay, extension, release, substitution, renewal, compromise or other indulgence, and hereby consenting to be bound thereby as fully and effectually as if it had expressly agreed thereto in advance. The liability of each Borrower hereunder is direct and unconditional as to all of the Obligations hereunder, and may be enforced without requiring the Lenders or the Issuing Bank first to resort to any other right, remedy or security; neither Borrower shall have any right of subrogation, reimbursement or indemnity whatsoever, nor any right of recourse to security for any of the Obligations hereunder, unless and until all ~~Guarantor Liabilities, (ii)~~ of said Obligations have been paid in full; nothing shall discharge or satisfy the liability of either Borrower hereunder except the full payment and performance of all of the Obligations; any and all present and future debts and obligations of each ~~Guarantor (A) shall be absolute~~ Borrower to 92 the other Borrower are hereby waived and ~~unconditional~~ postponed in favor of and ~~shall remain in~~ subordinated to the full ~~force~~ payment and ~~effect (or be reinstated) until~~ performance of all present and future obligations of the ~~Guaranteed Indebtedness shall have been fully and indefeasibly paid,~~ Borrowers to the ~~Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated~~ Lenders and the expiration of any applicable preference or similar period pursuant to any Insolvency Law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by Buyer, and (B) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired Issuing Bank [Signatures on the occurrence from time to time of any event, including any of the following, whether or not with notice to or the consent of each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement of the time for payment or performance or renewal or refinancing) of any of the Repurchase Obligations, Guarantor Liabilities, (2) the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer of any Purchased Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities (in each case, whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the Repurchase Obligations or the Guarantor Liabilities, whether by Buyer or in connection with any Insolvency Proceeding affecting any Guarantor or any other Person who, or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents or any part of the foregoing, or (5) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section 6.28, result in the release or discharge of any or all of Guarantors from the performance or observance of any of the Guarantor Liabilities, (iii) Buyer shall not be required first to initiate any suit or to exhaust its remedies against any Guarantor or any other Person to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, each Guarantor shall be and remain directly and unconditionally liable for all sums due under this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantor, and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor, or any release of any such other Guarantor, shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents), and (v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally liable for any deficiency.following pages]

Appears in 1 contract

Samples: Stock Pledge Agreement (Miller Industries Inc /Tn/)

Joint and Several Obligations. ~~(a) At~~ All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to the Lender or the Issuer to any Borrower, failure of the Lender or the Issuer to give any Borrower notice of borrowing or any other notice, any failure of the Lender or the Issuer to pursue or preserve its rights against any Borrower, the release by the Lender or the Issuer of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by the Lender or the Issuer to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all ~~times when there is more than one Guarantor under this Guaranty~~suretyship defenses. Without limiting the generality of the foregoing, each ~~Guarantor~~ of the Borrowers hereby acknowledges and agrees that ~~(i)~~ any and all actions, inactions or omissions by any one or more, or all, of the Borrowers in connection with, related to or otherwise affecting this Agreement or any of the other Loan Documents are the obligations of, and inure to and are binding upon, each ~~Guarantor shall be~~ and all of the Borrowers, jointly and ~~severally liable to Buyer to~~ severally. Each covenant, agreement, obligation, representation and warranty of the ~~maximum extent permitted by Requirements of Law for all Guarantor Liabilities, (ii)~~ Borrowers contained herein constitutes the ~~liability~~ joint and several undertaking of each ~~Guarantor (A) shall~~ Borrower. Each Borrower acknowledges that the obligations of such Borrower undertaken herein might be ~~absolute and unconditional and shall remain~~ construed to consist, at least in part, of the guaranty of obligations of the other Borrowers and, in full ~~force~~ recognition of that fact, each Borrower consents and ~~effect (or be reinstated) until~~ agrees that the ~~Guaranteed Indebtedness shall have been fully~~ Lender may, at any time and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration of any applicable preference or similar period pursuant to any Insolvency Law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by Buyer, and (B) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the occurrence from time to ~~time of any event~~time, ~~including any of the following~~without notice or demand, whether before or ~~not with notice~~ after any actual or purported termination, repudiation or revocation of this Agreement by any Borrower, and without affecting the enforceability or continuing effectiveness hereof as to such Borrower: (a) supplement, restate, modify, amend, increase, decrease, extend, renew or ~~the consent of each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement of~~ otherwise change the time for payment or ~~performance~~ the terms of this Agreement or ~~renewal~~ any part thereof, including any increase or ~~refinancing~~decrease of the rate(s) of interest thereon; (b) supplement, restate, modify, amend, increase, decrease or waive, or enter into or give any agreement, approval or consent with respect to, this Agreement or any part thereof, or any of the ~~Repurchase Obligations~~Loan Documents, ~~Guarantor Liabilities~~or any condition, covenant, default, remedy, right, representation or term thereof or thereunder; (2c) accept partial payments; (d) release, reconvey, terminate, waive, abandon, fail to perfect, subordinate, exchange, substitute, transfer or enforce any security or guarantees, and apply any security and direct the ~~failure~~ order or manner of sale thereof as the Lender, in its sole and absolute discretion may determine; (e) release any Person from any personal liability with respect to ~~give notice~~ this Agreement or any part thereof; (f) settle, release on terms satisfactory to ~~each Guarantor~~ the Lender or by operation of applicable law or otherwise liquidate or enforce any security or guaranty in any manner, consent to the transfer of any security and bid and purchase at any sale; or (g) consent to the merger, change or any other restructuring or termination of the ~~occurrence of an Event of Default, (3) the release, substitution~~ corporate or ~~exchange by Buyer~~ partnership existence of any ~~Purchased Asset~~Borrower, ~~Pledged Collateral~~ or any ~~collateral~~other Person, ~~property~~ and correspondingly restructure the obligations evidenced hereby, and any such merger, change, restructuring or ~~security for~~ termination shall not affect the ~~Repurchase Documents~~ liability of any Borrower or the ~~Guarantor Liabilities (in each case~~continuing effectiveness hereof, ~~whether with or without consideration)~~ or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for enforceability hereof with respect to all or any part of the Repurchase Obligations or the Guarantor Liabilities, whether by Buyer or in connection with any Insolvency Proceeding affecting any Guarantor or any other Person who, or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations or the Guarantor Liabilitiesobligations evidenced hereby. Each Borrower states and acknowledges that: (w) pursuant to this Agreement, the ~~other duties and obligations under the Repurchase Documents or any part of the foregoing, or (5)~~ Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent ~~permitted by Requirements~~ possible as if they were merged into a single corporate entity and that this Agreement reflects the establishment of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section 6.28, result in the release or discharge of any or all of Guarantors from the performance or observance of any of the Guarantor Liabilities, (iii) Buyer shall credit facilities which would not otherwise be ~~required first~~ available to initiate any suit or to exhaust its remedies against any Guarantor or any other Person to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and such Borrower if each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, each Guarantor shall be and remain directly and unconditionally liable for all sums due under this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantor, and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor, or any release of any such other Guarantor, shall Borrower were not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents), and (v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally liable for payment of the obligations; (x) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (y) it is both a condition precedent to the obligations of the Lender hereunder and a desire of the Borrowers that each Borrower execute and deliver to the Lender this Agreement; and (z) the Borrowers have requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement. Each Borrower agrees if such Borrower’s joint and several liability hereunder, or if any ~~deficiency.~~Liens securing such joint and several liability, would, but for the application of this Section 14.2, be unenforceable under applicable law, such joint and several liability and each such Lien shall be valid and enforceable to the maximum extent that would not cause such joint and several liability or such Lien to be unenforceable under applicable law, and such joint and several liability and such Lien shall be deemed to have been automatically amended accordingly at all relevant times. To the extent that any Borrower shall, under this Agreement as a joint and several obligor, repay any of the Obligations constituting Loans or Advances made to another Borrower hereunder or other Obligations incurred directly and primarily by any other Borrower (an “Accommodation Payment”), then the Borrower making such Accommodation Payment shall be entitled to contribution and indemnification from, and, be reimbursed by, each of the other Borrowers in an amount, for each of such other Borrowers, equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Borrower’s “Allocable Amount” (as defined below) and the denominator of which is the sum of the Allocable Amounts of all of the

Appears in 1 contract

Samples: Credit and Security Agreement (CVSL Inc.)

Joint and Several Obligations. (a) ~~At all times when there is more than one Guarantor under this Guaranty, each Guarantor~~ Each Seller hereby acknowledges and agrees that (i) each ~~Guarantor~~ Seller shall be jointly and severally liable to Buyer to the maximum extent permitted by ~~Requirements~~ Requirement of Law for all ~~Guarantor Liabilities~~Repurchase Obligations, (ii) the liability of each ~~Guarantor~~ Seller with respect to the Repurchase Obligations (A) shall be absolute and unconditional to the extent set forth in this Agreement and shall remain in full force and effect (or be reinstated) until ~~the Guaranteed Indebtedness~~ all Repurchase Obligations shall have been fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration of any applicable preference or similar period pursuant to any Insolvency Law, or at law or paid in ~~equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by Buyer~~full, and (B) until such payment has been ~~made and such obligations satisfied~~made, shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any of the following, whether or not with notice to or the consent of each ~~Guarantor~~Seller, (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement of the time for payment or performance or renewal or refinancing) of any of the Repurchase ~~Obligations~~Obligations except for and to the extent that any waiver, ~~Guarantor Liabilities~~compromise, settlement, release, termination or amendment that, by its terms, expressly discharges, affects, modifies or impairs the obligations of any Seller, (2) the failure to give notice to each ~~Guarantor~~ Seller of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer of any Purchased ~~Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities~~ Asset (~~in each case,~~ whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the Repurchase ~~Obligations or the Guarantor Liabilities~~Obligations, whether by Buyer or in connection with any Insolvency Proceeding affecting any ~~Guarantor~~ Seller or any other Person who, or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations or ~~the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents or~~ any part ~~of the foregoing~~thereof, or (5) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section ~~6.28~~27, result in the release or discharge of any or all of ~~Guarantors~~ Sellers from the performance or observance of any of Repurchase Obligation other than any such release or discharge expressly set forth in a written instrument between Buyer and the ~~Guarantor Liabilities~~applicable Seller, (iii) Buyer shall not be required first to initiate any suit or to exhaust its remedies against any ~~Guarantor~~ Seller or any other Person to become liable, or against any of the Purchased ~~Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities~~Loans, in order to enforce ~~this Guaranty or other Repurchase~~ the Transaction Documents and each ~~Guarantor~~ Seller expressly agrees that, notwithstanding the occurrence of any of the foregoing, each ~~Guarantor~~ Seller shall be and remain directly and ~~unconditionally~~ primarily liable for all sums due under ~~this Guaranty~~any of the Transaction Documents, (iv) when making any demand hereunder against any ~~Guarantor~~Seller, Buyer may, but shall be under no obligation to, make a similar demand on any other ~~Guarantor~~Seller, and any failure by Buyer to make any such demand or to collect any payments from any other ~~Guarantor~~Seller, or any release of any such other ~~Guarantor,~~ Seller shall not relieve any ~~Guarantor~~ Seller in a respect of which a demand or collection is not made or ~~Guarantors~~ Sellers not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of ~~Requirements of Law~~law, of Buyer against ~~Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents)~~Sellers, and (v) on disposition by Buyer of any property encumbered by any Purchased ~~Assets~~Loans, ~~Pledged Collateral or any collateral, property or security for the Guarantor Liabilities~~ each ~~Guarantor~~ Seller shall be and shall remain jointly and severally liable for any ~~deficiency~~deficiency to the extent set forth in this Agreement.

Appears in 1 contract

Samples: Joinder Agreement (Blackstone Mortgage Trust, Inc.)

Appears in 1 contract

Samples: Credit and Security Agreement (Ramaco Resources, Inc.)

Joint and Several Obligations. ~~(a) At all times when there is more than one Guarantor~~ ALL OBLIGATIONS OF THE APPLICANTS UNDER THE LOAN DOCUMENTS ARE AND SHALL BE JOINT AND SEVERAL. The obligations of each Applicant under ~~this Guaranty~~the Loan Documents are absolute, ~~each Guarantor hereby~~ unconditional and irrevocable. Each Applicant acknowledges and agrees that (a) any of the Administrative Agent, the Issuing Bank or the Lenders may, at their option, from time to time, proceed against such Applicant in the first instance to enforce the Loan Documents without first proceeding against, or resorting to any other rights or remedies against, any other Applicant, the Borrower or any other Person; (b) none of Administrative Agent, the Issuing Bank, the Lenders or any other Person has made any representation or warranty to such Applicant with respect to any other Applicant, any Loan Document, or any agreement, instrument or document executed or delivered in connection therewith or any other matter whatsoever; and (c) such Applicant shall be liable hereunder, and such liability shall not be affected or impaired, irrespective of (i) ~~each Guarantor shall be jointly and severally liable to Buyer to~~ the ~~maximum extent permitted by Requirements~~ collectibility of ~~Law for all Guarantor Liabilities~~any of the Obligations, (ii) the liability of each Guarantor (A) shall be absolute and unconditional and shall remain in full force and effect (or be reinstated) until the Guaranteed Indebtedness shall have been fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration of any applicable preference or ~~similar period pursuant~~ priority ranking with respect to any Insolvency Law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by Buyer, and (B) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any of the ~~following~~Obligations, ~~whether~~ (iii) the existence, validity, enforceability or ~~not with notice to~~ perfection of any security interest or collateral security under any Loan Document, or the ~~consent~~ release, exchange, substitution or loss or impairment of ~~each Guarantor~~any such security interest or collateral security, (1iv) any failure, delay, neglect or omission by the Administrative Agent, the Issuing Bank or any Lender to realize upon or protect any direct or indirect collateral security, indebtedness, liability or obligation, any Loan Document, or any agreement, instrument or document executed or delivered in connection therewith, or any of the Obligations, (v) the ~~waiver~~existence or exercise of any right of set-off by the Administrative Agent, ~~compromise~~the Issuing Bank or any Lender, ~~settlement~~(vi) the existence, ~~release, termination~~ validity or ~~amendment~~ enforceability of any guaranty (including the Guaranty) with respect to any ~~extension or postponement~~ of the ~~time for payment~~ Obligations, the liability of any other Applicant, the Borrower or ~~performance~~ any other Person in respect of any of the Obligations, or ~~renewal~~ the release of any other Applicant or ~~refinancing~~any such other Person or any guarantor (including the Borrower) of any of the ~~Repurchase~~ Obligations, ~~Guarantor Liabilities,~~ (2vii) ~~the failure to give notice to each Guarantor~~ any act or omission of the ~~occurrence of an Event of Default~~Administrative Agent, ~~(3)~~ the ~~release, substitution or exchange by Buyer of any Purchased Asset, Pledged Collateral~~ Issuing Bank or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities (in each case, whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the Repurchase Obligations or the Guarantor Liabilities, whether by Buyer or Lender in connection with the administration of any ~~Insolvency Proceeding affecting~~ Loan Document or any ~~Guarantor~~ of the Obligations, (viii) the bankruptcy, insolvency, reorganization or receivership of, or any other ~~Person who,~~ proceeding for the relief of debtors commenced by or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents or any part of the foregoing, or (5) to the extent permitted by Requirements of Lawagainst, any other ~~event~~Applicant, ~~occurrence~~the Borrower or any other Person, ~~action~~ (ix) the disaffirmance or ~~circumstance that would~~rejection, in or the ~~absence of this Section 6.28~~purported disaffirmance or purported rejection, ~~result in the release or discharge of any or all of Guarantors from the performance or observance~~ of any of the ~~Guarantor Liabilities~~Obligations, ~~(iii) Buyer shall not be required first to initiate~~ any ~~suit~~ Loan Document, or ~~to exhaust its remedies against~~ any ~~Guarantor~~ agreement, instrument or document executed or delivered in connection therewith, in any bankruptcy, insolvency, reorganization or receivership, or any other ~~Person~~ proceeding for the relief of debtors, relating to ~~become liable~~any other Applicant, the Borrower or ~~against~~ any other Person, (x) any law, regulation or decree now or hereafter in effect which might in any manner affect any of the ~~Purchased Assets~~terms or provisions of any Loan Document, ~~Pledged Collateral~~ or any ~~collateral~~agreement, ~~property~~ instrument or ~~security for~~ document executed or delivered in connection therewith or any of the ~~Repurchase Documents~~ Obligations, or which might cause or permit to be invoked any alteration in the ~~Guarantor Liabilities~~time, ~~in order to enforce this Guaranty~~ amount, manner or ~~other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence~~ payment or performance of any of any other Applicant's or the ~~foregoing, each Guarantor shall be~~ Borrower's obligations and ~~remain directly and unconditionally liable for all sums due under this Guaranty~~liabilities (including the Obligations), (ivxi) ~~when making~~ the merger or consolidation of any ~~demand hereunder against~~ other Applicant or the Borrower into or with any ~~Guarantor~~Person, ~~Buyer may~~(xii) the sale by any other Applicant or the Borrower of all or part of its assets, ~~but shall~~ (xiii) the fact that at any time and from time to time none of the Obligations may be ~~under no obligation~~ outstanding or owing to the Administrative Agent, the Issuing Bank or any Lender, (xiv) any amendment or modification of, or supplement to, ~~make a similar demand on~~ any Loan Document or the Letter of Credit or (xv) any other ~~Guarantor, and any failure by Buyer~~ reason or circumstance which might otherwise constitute a defense available to ~~make any such demand~~ or ~~to collect any payments from~~ a discharge of any other ~~Guarantor,~~ Applicant or ~~any release of any such other Guarantor, shall not relieve any Guarantor~~ the Borrower in respect of ~~which a demand or collection is not made or Guarantors not so released of their~~ its obligations or liabilities ~~hereunder, and shall not impair or affect~~ (including the ~~rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any~~ Obligations) other ~~Person obligated under~~ than by the Repurchase Documents), and (v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally liable for any deficiencyperformance in full thereof.

Appears in 1 contract

Samples: Credit and Guaranty Agreement (Wellchoice Inc)

Joint and Several Obligations. ~~(a) At~~ All obligations of the ----------------------------- Borrowers or either of them hereunder or under the Notes are joint and several obligations of the Parent and A & B-Hawaii. All notices to be given by the Borrowers hereunder shall not be effective unless executed on behalf of both of the Borrowers, although the Agent and the Banks may, in their sole discretion, honor a notice from one Borrower and the Borrowers both agree to be bound thereby. The Borrowers acknowledge and confirm for the benefit of the Banks and the Agent that both Borrowers derive and will continue to derive sub- stantial economic benefit from the Banks extending credit hereunder for the use of the Borrowers separately and/or jointly. Although all ~~times when there~~ parties hereto intend that the Borrowers be joint and several primary obligors hereunder, to the extent, if any, that either Borrower is ~~more than one Guarantor under this Guaranty~~deemed to be a guarantor of the obligations of the other Borrower hereunder, each ~~Guarantor~~ Borrower hereby ~~acknowledges and agrees that~~ (i) ~~each Guarantor shall be jointly and severally liable~~ waives any right to ~~Buyer~~ require the Agent or the Banks to proceed against the ~~maximum extent permitted by Requirements of Law for all Guarantor Liabilities~~other Borrower, proceed against or exhaust any security held from the other Borrower, or pursue any other remedy in its or their power whatsoever, (ii) waives any defense because of any disability or any other defense or cessation of lia- bility of the ~~liability of each Guarantor~~ other Borrower or any other Person, (Aiii) ~~shall be absolute and unconditional and shall remain~~ until payment in full force and effect (or be reinstated) until the Guaranteed Indebtedness shall have been fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration of any applicable preference or similar period pursuant to any Insolvency Law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by Buyer, and (B) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any of the following, whether or not with notice to or the consent of each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement of the time for payment or performance or renewal or refinancing) of any of the Repurchase Obligations, ~~Guarantor Liabilities, (2)~~ waives any right to proceed against the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer of any Purchased Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities (in each case, whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the Repurchase Obligations or the Guarantor Liabilities, whether by Buyer or in connection with any Insolvency Proceeding affecting any Guarantor Borrower or any other Person who, or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents or any part of the foregoing, or (5) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section 6.28, result in the release or discharge of any or all of Guarantors from the performance or observance of any of the Guarantor Liabilities, (iii) Buyer shall not be required first to initiate any suit or to ~~exhaust its remedies against~~ participate in any ~~Guarantor or any other Person to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or~~ security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, each Guarantor shall be and remain directly and unconditionally liable for all sums due under this GuarantyObligations, (iv) ~~when making any demand hereunder against any Guarantor, Buyer~~ agrees that the Banks and the Agent may, ~~but shall be under no obligation to~~at their election and in their sole discretion, ~~make a similar demand on~~ exercise any right or remedy it may have against the other ~~Guarantor, and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor,~~ Borrower or any ~~release~~ security held from the other Borrower without affecting or impairing in any way the Obligations of ~~any~~ such other Guarantor, shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect Borrower except to the rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under extent the ~~Repurchase Documents)~~Obligations have been paid, and (v) ~~on disposition by Buyer~~ waives any defense arising out of the absence, impairment, or loss of any ~~property encumbered by any Purchased Assets, Pledged Collateral~~ right of reimbursement or subrogation or other right or remedy of such Borrower against the other Borrower or any ~~collateral~~such security, ~~property~~ whether resulting from such election by the Agent and the Banks or ~~security for the Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally liable for any deficiency~~otherwise.

Appears in 1 contract

Samples: Term Loan Agreement (Alexander & Baldwin Inc)

Joint and Several Obligations. (a) At all times ~~when~~ during which there is more than one (1) Guarantor under this ~~Guaranty~~Agreement, each Guarantor hereby acknowledges and agrees that (i) each Guarantor shall be jointly and severally liable to Buyer to the maximum extent permitted by Requirements of Law for all Guarantor Liabilities, (ii) the liability of each Guarantor shall be joint and several and the joint and several obligations of each Guarantor under this Guaranty and the other Repurchase Documents (Aa) (i) shall be absolute and unconditional and shall remain in full force and effect (or be reinstated) until all the ~~Guaranteed~~ Guarantee Indebtedness shall have been ~~fully and indefeasibly paid~~paid in full, the Guarantor ~~Liabilities~~ Obligations shall have been ~~fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated~~ satisfied in full and the expiration of any applicable preference or similar period pursuant to any ~~Insolvency Law~~bankruptcy, insolvency, reorganization, moratorium or similar law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by ~~Buyer~~the Purchaser, and (Bii) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the ~~occurrence~~ happening from time to time of any event, ~~including~~ including, without limitation, any of the following, whether or not with notice to or the consent of ~~each Guarantor~~the Seller, the Guarantors or the Pledgor, (1A) the waiver, compromise, settlement, release, termination or amendment (~~including~~ including, without limitation, any extension or postponement of the time for payment or performance or renewal or refinancing) of any or all of the obligations or agreements of any Seller, the Guarantors or the Pledgor under the Repurchase ~~Obligations, Guarantor Liabilities~~Agreement or any Repurchase Document, (2B) the failure to give notice to ~~each Guarantor~~ the Seller, the Guarantors or the Pledgor of the occurrence of an Event of ~~Default~~Default under any of the Repurchase Documents, (3C) the release, substitution or exchange by ~~Buyer~~ the Purchaser of any or all of the Purchased ~~Asset,~~ Items or Pledged Collateral ~~or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities~~ (~~in each case,~~ whether with or without consideration) or the acceptance by ~~Buyer~~ the Purchaser of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4D) the release of any Person primarily or secondarily liable for all or any part of the ~~Repurchase~~ Obligations or the ~~Guarantor~~ Guarantee Liabilities, whether by ~~Buyer~~ the Purchaser or in connection with any ~~Insolvency Proceeding~~ voluntary or involuntary liquidation, dissolution, receivership, insolvency, bankruptcy, assignment for the benefit of creditors or similar event or proceeding affecting any ~~Guarantor~~ or all of the Seller, the Guarantors, the Pledgor or any other Person who, or any of whose ~~property~~Property, shall at the time in question be obligated in respect of the ~~Repurchase~~ Obligations or the ~~Guarantor Liabilities, the other duties and obligations under the Repurchase Documents~~ Guarantee Liabilities or any part ~~of the foregoing~~thereof, or (5E) to the extent permitted by ~~Requirements of~~ Applicable Law, any other event, occurrence, action or circumstance that would, in the absence of this Section ~~6.28~~30, result in the release or discharge of any or all of the Guarantors from the performance or observance of any of obligation, covenant or agreement contained in the Repurchase Agreement or the Repurchase Documents; (b) each Guarantor ~~Liabilities, (iii) Buyer~~ expressly agrees that the Purchaser shall not be required first to initiate any suit or to exhaust its remedies against ~~any Guarantor~~ the Seller, the Guarantors, the Pledgor or any other Person to become liable, or against any of the Purchased ~~Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents~~ Items or the ~~Guarantor Liabilities~~Pledged Collateral, in order to enforce this Guaranty or ~~other~~ the Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, each Guarantor shall be and remain directly and ~~unconditionally~~ primarily liable for all sums due under this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantor, and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor, Guaranty or any ~~release~~ of any such other Guarantor, shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents); and, ~~and~~ (vc) on disposition by ~~Buyer~~ the Purchaser of any ~~property~~ Property encumbered by any Purchased ~~Assets~~Items, ~~Pledged Collateral or any collateral, property or security for the Guarantor Liabilities~~ each Guarantor shall be and shall remain jointly and severally liable for any deficiency.

Appears in 1 contract

Samples: Guaranty Agreement (Municipal Mortgage & Equity LLC)

Joint and Several Obligations. ~~(a) At all times when there~~ Each Borrower is ~~more than one Guarantor~~ accepting joint and several liability hereunder and under the other Loan Documents, the Secured Hedge Agreements and the Secured Treasury Management Agreements in consideration of the financial accommodation to be provided by the Lenders, the L/C Issuers, any Agent, Arranger, the 2020 Incremental Lead Arrangers, the 2021 Incremental Lead Arrangers or Lender or any Affiliate of any of the foregoing and the Hedge Banks under this ~~Guaranty~~Agreement, ~~each Guarantor hereby acknowledges~~ the other Loan Documents, the Secured Hedge Agreements and ~~agrees that (i) each Guarantor shall be~~ the Secured Treasury Management Agreements, for the mutual benefit, directly and indirectly, of the other Borrower and in consideration of the undertakings of the other Borrower to accept joint and several liability for such Borrower. Each Borrower jointly and severally ~~liable to Buyer~~ hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrower with respect to the ~~maximum~~ payment and performance of all of the Obligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction between them. If and to the extent that any Borrower shall fail to make any payment with respect to any Obligation as and when due or to perform any Obligation in accordance with the terms thereof, then in each such event, the other Borrower will make such payment with respect to, or perform, such Obligation. The 205 |US-DOCS\126402975.16140630557.8|| 4885-9380-9411 v6 obligations of each Borrower under the provisions of this Section 11.22 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever. Except as otherwise expressly provided herein, each Borrower hereby waives, to the extent permitted by ~~Requirements~~ applicable law, notice of ~~Law for all Guarantor Liabilities~~acceptance of its joint and several liability. Except as otherwise expressly provided herein, ~~(ii)~~ each Borrower hereby waives, to the liability of each Guarantor (A) shall be absolute and unconditional and shall remain in full force and effect (or be reinstated) until the Guaranteed Indebtedness shall have been fully and indefeasibly paidextent permitted by law, ~~the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration~~ notice of any ~~applicable preference~~ Loan made under this Agreement, notice of occurrence of any Default or ~~similar period pursuant to~~ Event of Default or of any ~~Insolvency Law~~demand for any payment under this Agreement, notice of any action at any time taken or ~~at law~~ omitted by any Lender under or in ~~equity, without any claim having been made before the expiration~~ respect of such period asserting an interest in all or any part of any payment(s) received by Buyer, and (B) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any of the ~~following~~Obligations, ~~whether or not~~ any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Agreement. Each Borrower hereby assents to, and waives notice of, to or the ~~consent of each Guarantor~~extent permitted by applicable law, ~~(1) the waiver, compromise, settlement, release, termination or amendment (including~~ any extension or postponement of the time for the payment of any Obligation, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by any Lender at any time or times in respect of any default by the other Borrower in the performance or ~~renewal~~ satisfaction of any term, covenant, condition or ~~refinancing)~~ provision of this Agreement, any and all other indulgences whatsoever by any Lender in respect of any of the ~~Repurchase~~ Obligations, ~~Guarantor Liabilities~~and the taking, ~~(2) the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release~~addition, substitution or ~~exchange by Buyer~~ release, in whole or in part, at any time or times, of any ~~Purchased Asset, Pledged Collateral or any collateral, property or~~ security for ~~the Repurchase Documents~~ any Obligation or the ~~Guarantor Liabilities (~~addition, substitution or release, in ~~each case~~whole or in part, whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the ~~Repurchase Obligations or~~ other Borrower. Without limiting the Guarantor Liabilities, whether by Buyer or in connection with any Insolvency Proceeding affecting any Guarantor or any other Person who, or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents or any part of the foregoing, or (5) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section 6.28, result in the release or discharge of any or all of Guarantors from the performance or observance of any of the Guarantor Liabilities, (iii) Buyer shall not be required first to initiate any suit or to exhaust its remedies against any Guarantor or any other Person to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any generality of the foregoing, each ~~Guarantor shall be and remain directly and unconditionally liable~~ Borrower assents to any other action or delay in acting or failure to act on the part of any Lender, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with the applicable laws or regulations thereunder which might, but for ~~all sums due~~ the provisions of this Section 11.22, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this ~~Guaranty~~Section 11.22, ~~(iv) when making~~ it being the intention of each Borrower that, so long as any ~~demand~~ Obligation remains unsatisfied, the obligations of such Borrower under this Section 11.22 shall not be discharged except by performance or payment and then only to the extent of such performance or payment. The obligations of each Borrower under this Section 11.22 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Borrower or any Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any Borrower or any Lender. The provisions of this Section 11.22 are made solely for the benefit of the Administrative Agent and the other Secured Parties and their respective successors and assigns, and may be enforced by any such Person from time to time against any ~~Guarantor, Buyer may, but shall be under no obligation to, make a similar demand~~ Borrower as often as occasion therefor may arise and without requirement on the part of the Administrative Agent or any other ~~Guarantor, and~~ Secured Party first to marshal any ~~failure by Buyer to make any such demand~~ of its claims or to ~~collect~~ exercise any ~~payments from~~ of its rights against the other Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other ~~Guarantor~~source or means of obtaining payment of any Obligation or to elect any other remedy. If at any time, any payment, or any ~~release of any such other Guarantor~~part thereof, ~~shall not relieve any Guarantor~~ made in respect of ~~which a demand~~ any Obligation, is rescinded or ~~collection is not made~~ must otherwise be restored or ~~Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect~~ returned by the ~~rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor~~ Administrative Agent or any other ~~Person obligated~~ Secured Party upon the insolvency, bankruptcy or reorganization of any Borrower, or otherwise, the provisions of this Section 11.22 will forthwith be reinstated in effect, as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any other Loan Document, to the extent the joint and several obligations of any Borrower shall be adjudicated to be invalid or unenforceable for any reason (including because of any applicable state, provincial or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal, state or provincial and including, without limitation, Title 11 of the ~~Repurchase Documents~~United States Code, as now constituted or hereafter amended, |US-DOCS\126402975.16140630557.8|| 4885-9380-9411 v6 or any other Debtor Relief Laws), after taking into account, among other things, such Xxxxxxxx’s right of contribution and ~~(v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities~~ indemnification from each ~~Guarantor shall be and shall remain jointly and severally liable for any deficiency~~other Loan Party under applicable law.

Appears in 1 contract

Samples: Credit Agreement (APi Group Corp)

Joint and Several Obligations. (a) At all times ~~when~~ during which there is more than one ~~Guarantor~~ (1) Seller under this ~~Guaranty~~Agreement, each Guarantor hereby acknowledges and agrees that (i) each Guarantor shall be jointly and severally liable to Buyer to the maximum extent permitted by Requirements of Law for all Guarantor Liabilities, (ii) the liability of each ~~Guarantor~~ Seller shall be joint and several and the joint and several obligations of each Seller under the Repurchase Documents (Aa) (i) shall be absolute and unconditional and shall remain in full force and effect (or be be, reinstated) until all the ~~Guaranteed Indebtedness~~ Obligations shall have been ~~fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated~~ paid in full and the expiration of any applicable preference or similar period pursuant to any ~~Insolvency Law~~bankruptcy, insolvency, reorganization, moratorium or similar law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by the Buyer, and (Bii) until such payment has been ~~made and such obligations satisfied~~made, shall not be discharged, affected, modified or impaired on the ~~occurrence~~ happening from time to time of any event, ~~including~~ including, without limitation, any of the following, whether or not with notice to or the consent of ~~each Guarantor~~any Seller, the Guarantor or the Pledgor, (1A) the waiver, compromise, settlement, release, termination or amendment (~~including~~ including, without limitation, any extension or postponement of the time for payment or performance or renewal or refinancing) of any or all of the obligations or agreements of any Seller, the Guarantor or the Pledgor under the Repurchase ~~Obligations, Guarantor Liabilities~~Agreement or any Repurchase Document, (2B) the failure to give notice to ~~each~~ any Seller, the Guarantor or the Pledgor of the occurrence of an Event of ~~Default~~Default under any of the Repurchase Documents, (3C) the release, substitution or exchange by the Buyer of any or all of the Purchased ~~Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities~~ Items (~~in each case,~~ whether with or without consideration) or the acceptance by the Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4D) the release of any Person primarily or secondarily liable for all or any part of the ~~Repurchase Obligations or the Guarantor Liabilities~~Obligations, whether by the Buyer or in connection with any ~~Insolvency Proceeding~~ voluntary or involuntary liquidation, dissolution, receivership, insolvency, bankruptcy, assignment for the benefit of creditors or similar event or proceeding affecting any ~~Guarantor~~ or all of any Seller, the Guarantor, the Pledgor or any other Person who, or any of whose ~~property~~Property, shall at the time in question be obligated in respect of the ~~Repurchase~~ Obligations ~~or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents~~ or any part ~~of the foregoing~~thereof, or (5E) to the extent permitted by ~~Requirements of~~ Applicable Law, any other event, occurrence, action or circumstance that would, in the absence of this Section ~~6.28~~25, result in the release or discharge of any or all of ~~Guarantors~~ any Seller from the performance or observance of any of obligation, covenant or agreement contained in the ~~Guarantor Liabilities,~~ Repurchase Agreement or the Repurchase Documents; (~~iii~~b) each Seller expressly agrees that the Buyer shall not be required first to initiate any suit or to exhaust its remedies against any ~~Guarantor~~ Seller, the Guarantor, the Pledgor or any other Person to become liable, or against any of the Purchased ~~Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents~~ Items or the ~~Guarantor Liabilities~~Equity Interests, in order to enforce this ~~Guaranty~~ Repurchase Agreement or ~~other~~ the Repurchase Documents and each Seller, the Guarantor and the Pledgor expressly ~~agrees~~ agree that, notwithstanding the occurrence of any of the foregoing, each ~~Guarantor~~ Seller shall be and remain directly and ~~unconditionally~~ primarily liable for all sums due under this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantor, and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor, the Repurchase Agreement or any ~~release~~ of any such other Guarantor, shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents); and, ~~and~~ (vc) on disposition by the Buyer of any ~~property~~ Property encumbered by any Purchased ~~Assets~~Items, ~~Pledged Collateral or any collateral, property or security for the Guarantor Liabilities~~ each ~~Guarantor~~ Seller shall be and shall remain jointly and severally liable for any deficiency.

Appears in 1 contract

Samples: Northstar Realty

Joint and Several Obligations. ~~(a) At all times when there~~ Each Borrower acknowledges ----------------------------- that it is ~~more than one Guarantor under this Guaranty, each Guarantor hereby acknowledges and agrees that (i) each Guarantor shall be~~ jointly and severally liable for all of the Obligations and as a result hereby unconditionally guaranties the full and prompt payment when due, whether at maturity or earlier, by reason of acceleration or otherwise, and at all times thereafter, of all Obligations of every kind and nature of each other Borrower to ~~Buyer~~ Collateral Agent and Lenders and, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, joint or several, now or hereafter existing, or due or to become due, and howsoever owned, held or acquired by Collateral Agent or any Lender. Each Borrower agrees that if this guaranty, or any Liens securing this guaranty, would, but for the application of this sentence, be unenforceable under applicable law, this guaranty and each such Lien shall be valid and enforceable to the maximum extent ~~permitted by Requirements~~ that would not cause this guaranty or such Lien to be unenforceable under applicable law, and this guaranty shall automatically be deemed to have been amended accordingly at all relevant times. Each Borrower hereby agrees that its obligations under this guaranty shall be unconditional, irrespective of ~~Law for all Guarantor Liabilities,~~ (iia) the ~~liability~~ validity or enforceability of ~~each Guarantor (A) shall be absolute and unconditional and shall remain in full force and effect (~~the obligations or ~~be reinstated) until the Guaranteed Indebtedness shall have been fully and indefeasibly paid~~any part thereof, ~~the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration~~ or of any ~~applicable preference~~ promissory note or ~~similar period pursuant to any Insolvency Law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in~~ other document evidencing all or any part of the Obligations, (b) the absence of any ~~payment(s~~attempt to collect the obligations from any other Borrower or any Guarantor or other action to enforce the same, (c) ~~received~~ the waiver or consent by ~~Buyer~~Collateral Agent or any Lender with respect to any provision of any agreement, instrument or document evidencing or securing all or any part of the Obligations, or any other agreement, instrument or document now or hereafter executed by any other Borrower and delivered to Collateral Agent or any Lender (other than a waiver, forgiveness or consent by Collateral Agent and Lenders that reduces the amount of any of the Obligations), (d) the failure by Collateral Agent or any Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or Collateral for the Obligations, for its benefit, (e) Collateral Agent's or any Lender's election, in any proceeding instituted under the Bankruptcy Code or any other similar bankruptcy or insolvency legislation, of the application of Section 1111(b)(2) of the Bankruptcy Code or any other similar bankruptcy or insolvency legislation, (f) any borrowing or grant of a security interest by any Borrower as debtor-in-possession, under Section 364 of the Bankruptcy Code or any other similar bankruptcy or insolvency legislation, (g) the disallowance, under Section 502 of the Bankruptcy Code or any other similar bankruptcy or insolvency legislation, of all or any portion of Collateral Agent's or any Lender's claim(s) for repayment of the obligations or (h) any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a borrower or a guarantor. Each Borrower hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of receivership or bankruptcy of any other Borrower, protest or notice with respect to the Obligations owed by any other Borrower and all demands whatsoever with respect thereto, and ~~(B) until such payment has been made and such obligations satisfied, shall~~ covenants that this guaranty will not be discharged, ~~affected, modified~~ except by complete and irrevocable payment and performance of the Obligations. No notice to any Borrower or ~~impaired on~~ any other party shall be required for Collateral Agent or any Lender to make demand hereunder. Such demand shall constitute a mature and liquidated claim against the ~~occurrence from time to time~~ applicable Borrower. During the existence of any ~~event~~Event of Default, ~~including~~ Collateral Agent and Lenders may, at their election, proceed directly and at once, without notice,' against all or any of the ~~following~~Borrowers to collect and recover the full amount or any portion of the Obligations, ~~whether~~ without first proceeding against any other Borrower or ~~not~~ any other Person, or any security or collateral for the Obligations. Each Borrower hereby waives notice of acceptance of its joint and several liability, notice of occurrence of any Event of Default, or of any demand for any payment of any Obligations owed by any other Borrower under this Agreement, notice of any action at any time taken or omitted by Collateral Agent or any Lender under or in respect of any of the Obligations, any requirement of diligence and, generally, all formalities of every kind in connection with this Agreement. Each Borrower hereby assents to, and waives notice ~~to or the consent of each Guarantor~~of, ~~(1) the waiver, compromise, settlement, release, termination or amendment (including~~ any extension or postponement of the time for the payment ~~or performance or renewal or refinancing)~~ of any of the ~~Repurchase Obligations~~obligations hereunder, ~~Guarantor Liabilities, (2)~~ the ~~failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer~~ acceptance of any ~~Purchased Asset~~partial payment thereon, ~~Pledged~~ any waiver, consent or other action or acquiescence by Collateral Agent or any ~~collateral, property~~ Lender at any time or security for the Repurchase Documents or the Guarantor Liabilities (in each case, whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the Repurchase Obligations or the Guarantor Liabilities, whether by Buyer or in connection with any Insolvency Proceeding affecting any Guarantor or any other Person who, or any of whose property, shall at the time in question be obligated times in respect of ~~the Repurchase Obligations or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents or~~ any ~~part of the foregoing, or (5) to the extent permitted~~ default by ~~Requirements of Law,~~ any ~~other event, occurrence, action or circumstance that would,~~ Borrower in ~~the absence of this Section 6.28, result in the release or discharge of any or all of Guarantors from~~ the performance or ~~observance~~ satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by Collateral Agent or any Lender in respect of any of the ~~Guarantor Liabilities~~Obligations hereunder, ~~(iii) Buyer shall not be required first to initiate~~ and the taking, addition, substitution or release, in whole or in part, at any ~~suit~~ time or ~~to exhaust its remedies against~~ times, of any ~~Guarantor or any other Person to become liable, or against~~ security for any of ~~the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents~~ such Obligations or the ~~Guarantor Liabilities~~addition, substitution or release, in ~~order to enforce this Guaranty~~ whole or ~~other Repurchase Documents and each Guarantor expressly agrees that~~in part, ~~notwithstanding the occurrence~~ of any Borrower. Without limiting the generality of the foregoing, each ~~Guarantor shall be and remain directly and unconditionally liable~~ Borrower assents to any other action or delay in acting or failure to act on the part of Collateral Agent or any Lender, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for ~~all sums due~~ the provisions of this Section 13.14, afford grounds for terminating, discharging or releasing such Borrower, in whole or in part, from any of its obligations under this ~~Guaranty~~Section 13.14, ~~(iv) when making~~ it being the intention of each Borrower that, so long as any ~~demand~~ of the Obligations hereunder ~~against~~ remain unsatisfied, the obligations of such Borrower under this Section 13.14 shall not be discharged except by performance and then only to the extent of such performance. Each Borrower hereby waives all suretyship and similar defenses to its absolute and unconditional liability on the Obligations. The obligations of each Borrower under this Section 13.14 shall not be diminished or rendered unenforceable by any ~~Guarantor~~winding up, ~~Buyer may~~reorganization, ~~but shall be under no obligation to~~arrangement, ~~make a~~ liquidation, reconstruction or similar ~~demand on~~ proceeding with respect to any ~~other Guarantor~~Borrower, ~~and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor,~~ Collateral Agent or any ~~release~~ Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any ~~such other Guarantor~~absorption, ~~shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder~~merger, and shall not impair or affect the rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor amalgamation or any other ~~Person obligated under~~ change whatsoever in the ~~Repurchase Documents)~~name, ~~and (v) on disposition by Buyer~~ membership, constitution or place of formation of any ~~property encumbered by any Purchased Assets~~Borrower, ~~Pledged~~ Collateral Agent or any ~~collateral, property or security for the Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally liable for any deficiency~~Lender.

Appears in 1 contract

Samples: Loan and Securities Purchase Agreement (Falcon Products Inc /De/)

Joint and Several Obligations. ~~(a) At all times when there~~ Each Borrower is ~~more than one Guarantor~~ accepting joint and several liability hereunder and under the other Loan Documents, the Secured Hedge Agreements and the Secured Treasury Management Agreements in consideration of the financial accommodation to be provided by the Lenders, the L/C Issuers, any Agent, Arranger or Lender or any Affiliate of any of the foregoing and the Hedge Banks under this ~~Guaranty~~Agreement, ~~each Guarantor hereby acknowledges~~ the other Loan Documents, the Secured Hedge Agreements and ~~agrees that (i) each Guarantor shall be~~ the Secured Treasury Management Agreements, for the mutual benefit, directly and indirectly, of the other Borrower and in consideration of the undertakings of the other Borrower to accept joint and several liability for such Borrower. Each Borrower jointly and severally ~~liable to Buyer~~ hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrower with respect to the ~~maximum~~ payment and performance of all of the Obligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction between them. If and to the extent that any Borrower shall fail to make any payment with respect to any Obligation as and when due or to perform any Obligation in accordance with the terms thereof, then in each such event, the other Borrower will make such payment with respect to, or perform, such Obligation. The obligations of each Borrower under the provisions of this Section 10.20 157 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever. Except as otherwise expressly provided herein, each Borrower hereby waives, to the extent permitted by ~~Requirements~~ applicable law, notice of ~~Law for all Guarantor Liabilities~~acceptance of its joint and several liability. Except as otherwise expressly provided herein, ~~(ii)~~ each Borrower hereby waives, to the liability of each Guarantor (A) shall be absolute and unconditional and shall remain in full force and effect (or be reinstated) until the Guaranteed Indebtedness shall have been fully and indefeasibly paidextent permitted by law, ~~the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration~~ notice of any ~~applicable preference~~ Loan made under this Agreement, notice of occurrence of any Default or ~~similar period pursuant to~~ Event of Default or of any ~~Insolvency Law~~demand for any payment under this Agreement, notice of any action at any time taken or ~~at law~~ omitted by any Lender under or in ~~equity, without any claim having been made before the expiration~~ respect of such period asserting an interest in all or any part of any payment(s) received by Buyer, and (B) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any of the ~~following~~Obligations, ~~whether or not~~ any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Agreement. Each Borrower hereby assents to, and waives notice of, to or the ~~consent of each Guarantor~~extent permitted by applicable law, ~~(1) the waiver, compromise, settlement, release, termination or amendment (including~~ any extension or postponement of the time for the payment of any Obligation, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by any Lender at any time or times in respect of any default by the other Borrower in the performance or ~~renewal~~ satisfaction of any term, covenant, condition or ~~refinancing)~~ provision of this Agreement, any and all other indulgences whatsoever by any Lender in respect of any of the ~~Repurchase~~ Obligations, ~~Guarantor Liabilities~~and the taking, ~~(2) the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release~~addition, substitution or ~~exchange by Buyer~~ release, in whole or in part, at any time or times, of any ~~Purchased Asset, Pledged Collateral or any collateral, property or~~ security for ~~the Repurchase Documents~~ any Obligation or the ~~Guarantor Liabilities (~~addition, substitution or release, in ~~each case~~whole or in part, whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the ~~Repurchase Obligations or~~ other Borrower. Without limiting the Guarantor Liabilities, whether by Buyer or in connection with any Insolvency Proceeding affecting any Guarantor or any other Person who, or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents or any part of the foregoing, or (5) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section 6.28, result in the release or discharge of any or all of Guarantors from the performance or observance of any of the Guarantor Liabilities, (iii) Buyer shall not be required first to initiate any suit or to exhaust its remedies against any Guarantor or any other Person to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any generality of the foregoing, each ~~Guarantor shall be and remain directly and unconditionally liable~~ Borrower assents to any other action or delay in acting or failure to act on the part of any Lender, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with the applicable laws or regulations thereunder which might, but for ~~all sums due~~ the provisions of this Section 11.22, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this ~~Guaranty~~Section 11.22, ~~(iv) when making~~ it being the intention of each Borrower that, so long as any ~~demand~~ Obligation remains unsatisfied, the obligations of such Borrower under this Section 11.22 shall not be discharged except by performance or payment and then only to the extent of such performance or payment. The obligations of each Borrower under this Section 11.22 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Borrower or any Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any Borrower or any Lender. The provisions of this Section 11.22 are made solely for the benefit of the Administrative Agent and the other Secured Parties and their respective successors and assigns, and may be enforced by any such Person from time to time against any ~~Guarantor, Buyer may, but shall be under no obligation to, make a similar demand~~ Borrower as often as occasion therefor may arise and without requirement on the part of the Administrative Agent or any other ~~Guarantor, and~~ Secured Party first to marshal any ~~failure by Buyer to make any such demand~~ of its claims or to ~~collect~~ exercise any ~~payments from~~ of its rights against the other Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other ~~Guarantor~~source or means of obtaining payment of any Obligation or to elect any other remedy. If at any time, any payment, or any ~~release of any such other Guarantor~~part thereof, ~~shall not relieve any Guarantor~~ made in respect of ~~which a demand~~ any Obligation, is rescinded or ~~collection is not made~~ must otherwise be restored or ~~Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect~~ returned by the ~~rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor~~ Administrative Agent or any other ~~Person obligated~~ Secured Party upon the insolvency, bankruptcy or reorganization of any Borrower, or otherwise, the provisions of this Section 11.22 will forthwith be reinstated in effect, as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any other Loan Document, to the extent the joint and several obligations of any Borrower shall be adjudicated to be invalid or unenforceable for any reason (including because of any applicable state, provincial or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited 158 to the maximum amount that is permissible under applicable law (whether federal, state or provincial and including, without limitation, Title 11 of the ~~Repurchase Documents~~United States Code, as now constituted or hereafter amended, or any other Debtor Relief Laws), after taking into account, among other things, such Borrower’s right of contribution and ~~(v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities~~ indemnification from each ~~Guarantor shall be and shall remain jointly and severally liable for any deficiency~~other Loan Party under applicable law.

Appears in 1 contract

Samples: Credit Agreement (Element Solutions Inc)

Joint and Several Obligations. (a) At all times ~~when~~ during which there is more than one ~~Guarantor~~ (1) Seller under this ~~Guaranty~~Agreement, each ~~Guarantor~~ Seller hereby acknowledges and agrees that (i) ~~each Guarantor~~ such Seller shall be jointly and severally liable to ~~Buyer~~ the Purchaser to the maximum extent permitted by ~~Requirements of~~ Applicable Law for all ~~Guarantor Liabilities~~representations, warranties, covenants, duties and indemnities of the Sellers, arising under this Agreement and the other Repurchase Documents, as applicable, and the Obligations; (ii) the liability of each ~~Guarantor~~ Seller (A) shall be absolute and unconditional and shall remain in full force and effect (or be reinstated) until all the ~~Guaranteed Indebtedness~~ Obligations shall have been ~~fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated~~ paid in full and the expiration of any applicable preference or similar period pursuant to any ~~Insolvency Law~~bankruptcy, insolvency, reorganization, moratorium or similar law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by ~~Buyer~~the Purchaser, and (B) until such payment has been ~~made and such obligations satisfied~~made, shall not be discharged, affected, modified or impaired on the ~~occurrence~~ happening from time to time of any event, ~~including~~ including, without limitation, any of the following, whether or not with notice to or the consent of each ~~Guarantor~~Seller, the Guarantor or the Pledgor, (1) the waiver, compromise, settlement, release, termination or amendment (~~including~~ including, without limitation, any extension or postponement of the time for payment or performance or renewal or refinancing) of any or all of the obligations or agreements of any Seller, the Guarantor or the Pledgor under the Repurchase ~~Obligations, Guarantor Liabilities~~Agreement or any Repurchase Document, (2) the failure to give notice to each Seller, the Guarantor or the Pledgor of the occurrence of an Event of ~~Default~~Default under any of the Repurchase Documents, (3) the release, substitution or exchange by ~~Buyer~~ the Purchaser of any or all of the Purchased ~~Asset,~~ Items or Pledged Collateral ~~or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities~~ (~~in each case,~~ whether with or without consideration) or the acceptance by ~~Buyer~~ the Purchaser of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the ~~Repurchase Obligations or the Guarantor Liabilities~~Obligations, whether by ~~Buyer~~ the Purchaser or in connection with any ~~Insolvency Proceeding~~ voluntary or involuntary liquidation, dissolution, receivership, insolvency, bankruptcy, assignment for the benefit of creditors or similar event or proceeding affecting any ~~Guarantor~~ or all of each Seller, the Guarantor, the Pledgor or any other Person who, or any of whose ~~property~~Property, shall at the time in question be obligated in respect of the ~~Repurchase~~ Obligations ~~or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents~~ or any part ~~of the foregoing~~thereof, or (5) to the extent permitted by ~~Requirements of~~ Applicable Law, any other event, occurrence, action or circumstance that would, in the absence of this Section ~~6.28~~13.26, result in the release or discharge of any or all of ~~Guarantors~~ the Sellers from the performance or observance of any of obligation, covenant or agreement contained in the ~~Guarantor Liabilities,~~ Repurchase Agreement or the Repurchase Documents; (iii) ~~Buyer~~ the Purchaser shall not be required first to initiate any suit or to exhaust its remedies against any ~~Guarantor~~ Seller, the Guarantor, the Pledgor or any other Person to become liable, or against any of the Purchased ~~Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents~~ Items or the ~~Guarantor Liabilities~~Pledged Collateral, in order to enforce this ~~Guaranty~~ Repurchase Agreement or ~~other~~ the Repurchase Documents and each Seller, the Guarantor and the Pledgor expressly ~~agrees~~ agree that, notwithstanding the occurrence of any of the foregoing, each ~~Guarantor~~ Seller shall be and remain directly and ~~unconditionally~~ primarily liable for all sums due under ~~this Guaranty,~~ the Repurchase Agreement or any of the Repurchase Documents; (iv) when making any demand hereunder against any ~~Guarantor~~Seller, ~~Buyer~~ the Purchaser may, but shall be under no obligation to, make a similar demand on any other ~~Guarantor~~Seller, and any failure by ~~Buyer~~ the Purchaser to make any such demand or to collect any payments from any other ~~Guarantor~~Seller, or any release of any such other ~~Guarantor,~~ Seller shall not relieve any ~~Guarantor~~ Seller in a respect of which a demand or collection is not made or ~~Guarantors~~ the Sellers not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of ~~Requirements of Law~~law, of ~~Buyer~~ the Purchaser against ~~Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under~~ the ~~Repurchase Documents),~~ Sellers; and (v) on disposition by ~~Buyer~~ the Purchaser of any ~~property~~ Property encumbered by any Purchased ~~Assets~~Items or the Pledged Collateral, ~~Pledged Collateral or any collateral, property or security for the Guarantor Liabilities~~ each ~~Guarantor~~ Seller shall be and shall remain jointly and severally liable for any deficiency.

Appears in 1 contract

Samples: Master Repurchase Agreement (Quadra Realty Trust, Inc.)

Joint and Several Obligations. ~~(a) At all times when there is more than one Guarantor~~ The Loan to Borrowers under this ~~Guaranty,~~ Agreement and the Obligations shall constitute one joint and several general obligation of each ~~Guarantor hereby acknowledges~~ of the Borrowers and ~~agrees that (i) each~~ Guarantors. Each Borrower and Guarantor shall be jointly and severally liable to ~~Buyer~~ the Lenders for all Obligations hereunder, it being stipulated and agreed that the Loan inures to the ~~maximum extent permitted~~ benefit of each of the Borrowers and Guarantors, and that the Lenders are relying on the joint and several liability of the Borrowers and Guarantors in extending credit hereunder. Each Borrower and Guarantor agrees that the joint and several liability of the Borrowers and Guarantors shall not be impaired or affected by ~~Requirements~~ any modification, supplement, extension or amendment of ~~Law~~ any contract or agreement to which the parties thereto may hereafter agree, nor by any delay, extension of time, renewal, compromise or other indulgence granted by the Lenders with respect to any of the Obligations, nor by any other agreements or arrangements whatever with the Borrowers and Guarantors, each Borrower and Guarantor hereby waiving all notice of any such delay, extension, release, substitution, renewal, compromise or other indulgence, and hereby consenting to be bound thereby as fully and effectually as if it had expressly agreed thereto in advance. The liability of each Borrower and Guarantor hereunder is direct and unconditional as to all of the Obligations hereunder, and may be enforced without requiring the Lenders first to resort to any other right, remedy or security; neither Borrower nor any Guarantor shall have any right of subrogation, reimbursement or indemnity whatsoever, nor any right of recourse to security for any of the Obligations hereunder, unless and until all ~~Guarantor Liabilities, (ii)~~ of said Obligations have been paid in full; nothing shall discharge or satisfy the liability of each Guarantor (A) shall be absolute and unconditional and shall remain in full force and effect (or be reinstated) until the Guaranteed Indebtedness shall have been fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration of any applicable preference or similar period pursuant to any Insolvency Law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in all either Borrower or any ~~part~~ Guarantor hereunder except the full payment and performance of any payment(s) received by Buyer, and (B) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any all of the ~~following, whether or not with notice to or the consent~~ Obligations; any and all present and future debts and obligations of each ~~Guarantor, (1)~~ Borrower to the ~~waiver, compromise, settlement, release, termination~~ other Borrower or ~~amendment (including~~ any ~~extension or postponement~~ Guarantor are hereby waived and postponed in favor of and subordinated to the full payment and performance of all present and future obligations of the time for payment or performance or renewal or refinancing) of any of the Repurchase Obligations, Guarantor Liabilities, (2) the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer of any Purchased Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities (in each case, whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the Repurchase Obligations or the Guarantor Liabilities, whether by Buyer or in connection with any Insolvency Proceeding affecting any Guarantor or any other Person who, or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations or the Guarantor Liabilities, the other duties Borrowers and ~~obligations under the Repurchase Documents or any part of the foregoing, or (5)~~ Guarantors to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section 6.28, result in the release or discharge of any or all of Guarantors from the performance or observance of any of the Guarantor Liabilities, (iii) Buyer shall not be required first to initiate any suit or to exhaust its remedies against any Guarantor or any other Person to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, each Guarantor shall be and remain directly and unconditionally liable for all sums due under this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantor, and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor, or any release of any such other Guarantor, shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents), and (v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally liable for any deficiencyLenders.

Appears in 1 contract

Samples: Credit Agreement (Miller Industries Inc /Tn/)

Joint and Several Obligations. ~~(a) At all times when there is more than one Guarantor under this Guaranty, each Guarantor~~ Each Seller hereby acknowledges and agrees that (i) each ~~Guarantor~~ Seller shall be jointly and severally liable to Buyer to the maximum extent permitted by ~~Requirements~~ any Requirement of Law for all ~~Guarantor Liabilities~~Repurchase Obligations, (ii) the liability of each ~~Guarantor~~ Seller with respect to the Repurchase Obligations (A) shall be absolute and unconditional to the extent set forth in this Agreement and the other Transaction Documents and shall remain in full force and effect (or be reinstated) until ~~the Guaranteed Indebtedness~~ all Repurchase Obligations shall have been ~~fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly~~ paid, performed ~~and discharged~~and/or satisfied, ~~the Repurchase Documents have been terminated and the expiration of any applicable preference or similar period pursuant to any Insolvency Law~~as applicable, ~~or at law or~~ in ~~equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by Buyer~~full, and (B) until such ~~payment~~ payment, performance and/or satisfaction, as applicable, has ~~been made and such obligations satisfied~~occurred, shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any of the following, whether or not with notice to or the consent of each ~~Guarantor~~Seller (it being understood and agreed that no notice or consent shall be imputed to either Seller where neither Seller received the same, and the provisions of this section shall in no event relieve any requirement contained in this Agreement or the other Transaction Documents to provide notice where such notice is required and neither Seller has received delivery of such notice or to obtain consent where such consent is required and neither Seller has provided such consent), (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement of the time for ~~payment or performance or~~ payment, performance, satisfaction, renewal or refinancing) of any of the Repurchase Obligations (other than a waiver, compromise, settlement, release or termination in full of the Repurchase Obligations~~, Guarantor Liabilities~~), (2) the failure to give notice to each ~~Guarantor~~ Seller of the occurrence of an Event of Default, (3) the ~~release, substitution or exchange~~ release by Buyer of any Purchased ~~Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities~~ Loan (~~in each case,~~ whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any ~~nonperfection~~ non-perfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the Repurchase ~~Obligations or the Guarantor Liabilities~~Obligations, whether by Buyer or in connection with any Act of Insolvency ~~Proceeding~~ affecting ~~any Guarantor~~ a Seller or any other Person who, or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations or ~~the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents or~~ any part ~~of the foregoing~~thereof, or (5) to the extent permitted by ~~Requirements~~ any Requirement of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section ~~6.28~~33, result in the release or discharge of ~~any or all of Guarantors~~ a Seller from the performance or observance of any ~~of the Guarantor Liabilities~~Repurchase Obligation, (iii) Buyer shall not be required first to initiate any suit or to exhaust its remedies against ~~any Guarantor~~ a Seller or any other Person for such Seller or Person to become liable, or against any of the Purchased ~~Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities~~Loans, in order to enforce ~~this Guaranty or other Repurchase~~ the Transaction Documents and each ~~Guarantor~~ Seller expressly agrees that, notwithstanding the occurrence of any of the foregoing, each ~~Guarantor~~ Seller shall be and remain directly and ~~unconditionally~~ primarily liable for all sums due under ~~this Guaranty~~any of the Transaction Documents, (iv) when making any demand hereunder against ~~any Guarantor~~a Seller, Buyer may, but shall be under no obligation to, make a similar demand on ~~any other Guarantor~~another Seller, and any failure by Buyer to make any such demand or to collect any payments from ~~any other Guarantor~~another Seller, or any release of ~~any such other Guarantor,~~ another Seller shall not relieve ~~any Guarantor~~ such Seller in a respect of which a demand or collection is not made or ~~Guarantors~~ a Seller not so released of ~~their~~ its obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of ~~Requirements of Law~~law, of Buyer against ~~Guarantors (or of any Guarantor against another Guarantor or~~ such Seller~~, Pledgor or any other Person obligated under the Repurchase Documents)~~, and (v) on disposition by Buyer of any property encumbered by any Purchased ~~Assets~~Loans, ~~Pledged Collateral or any collateral, property or security for the Guarantor Liabilities~~ each ~~Guarantor~~ Seller shall be and shall remain jointly and severally liable for any ~~deficiency~~deficiency to the extent set forth in this Agreement and the other Transaction Documents.

Appears in 1 contract

Samples: Master Repurchase Agreement (RAIT Financial Trust)

Joint and Several Obligations. (a) At all times ~~when~~ during which there is more than one (1) Guarantor under this ~~Guaranty~~Agreement, ~~each Guarantor hereby acknowledges and agrees that (i) each Guarantor shall be jointly and severally liable to Buyer~~ subject to the ~~maximum extent permitted by Requirements of Law for all Guarantor Liabilities~~limitations set forth in Section 2, ~~(ii)~~ the liability of each Guarantor shall be joint and several and the joint and several obligations of each Guarantor under this Guarantee and the other Credit Documents (Aa) (i) shall be absolute and unconditional and shall remain in full force and effect (or be reinstated) until all the ~~Guaranteed Indebtedness~~ Guarantee Obligations shall have been ~~fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated~~ satisfied and the expiration of any applicable preference or similar period pursuant to any ~~Insolvency Law~~bankruptcy, insolvency, reorganization, moratorium or similar law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by ~~Buyer~~the Administrative Agent or the Lenders, and (Bii) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the ~~occurrence~~ happening from time to time of any event, ~~including~~ including, without limitation, any of the following, whether or not with notice to or the consent of ~~each Guarantor~~the Borrowers, the Guarantors, the Pledgors or any other Credit Party, (1A) the waiver, compromise, settlement, release, termination or amendment (~~including~~ including, without limitation, any extension or postponement of the time for payment or performance or renewal or refinancing) of any or all of the ~~Repurchase Obligations~~obligations or agreements of any Borrower, ~~Guarantor Liabilities~~Guarantor, Pledgor or any other Credit Party under the Credit Agreement or any Credit Document, (2B) the failure to give notice to ~~each Guarantor~~ the Borrowers, the Guarantors, the Pledgors or any other Credit Party of the occurrence of an Event of ~~Default~~Default under any of the Credit Documents, (3C) the release, substitution or exchange by ~~Buyer~~ the Administrative Agent or the Lenders of any ~~Purchased Asset~~or all of the Collateral, Pledged Collateral or any collateral, ~~property~~ Property or security for the ~~Repurchase Documents~~ Guarantee or the ~~Guarantor Liabilities~~ Guarantee Obligations (in each case, whether with or without consideration) or the acceptance by ~~Buyer~~ the Administrative Agent or the Lenders of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4D) the release of any Person primarily or secondarily liable for all or any part of the ~~Repurchase~~ Obligations or the ~~Guarantor Liabilities~~Guarantee Obligations, whether by ~~Buyer~~ the Administrative Agent, the Lenders or in connection with any ~~Insolvency Proceeding~~ voluntary or involuntary liquidation, dissolution, receivership, insolvency, bankruptcy, assignment for the benefit of creditors or similar event or proceeding affecting any ~~Guarantor~~ or all of the Borrowers, the Guarantors, the Pledgors, any other Credit Party or any other Person who, or any of whose ~~property~~Property or assets, shall at the time in question be obligated in respect of the ~~Repurchase~~ Obligations or the ~~Guarantor Liabilities, the other duties and obligations under the Repurchase Documents~~ Guarantee Obligations or any part ~~of the foregoing~~thereof, or (5E) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section ~~6.28~~37, result in the release or discharge of any or all of the Guarantors from the performance or observance of any of obligation, covenant or agreement contained in the Credit Agreement or the Credit Documents; (b) each Guarantor ~~Liabilities, (iii) Buyer~~ expressly agrees that the Administrative Agent and the Lenders shall not be required first to initiate any suit or to exhaust its remedies against the Borrowers, the Guarantors, the Pledgors, any ~~Guarantor~~ other Credit Party or any other Person to become liable, or against any of the ~~Purchased Assets~~Collateral, the Pledged Collateral or any collateral, ~~property~~ security or ~~security~~ Property for ~~the Repurchase Documents~~ this Guarantee or the ~~Guarantor Liabilities~~Guarantee Obligations, in order to enforce this ~~Guaranty~~ Guarantee or ~~other Repurchase~~ the Credit Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, each Guarantor shall be and remain directly and ~~unconditionally~~ primarily liable for all sums due under this ~~Guaranty~~Guarantee or any of the Credit Documents; and, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantor, and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor, or any release of any such other Guarantor, shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents), and (vc) on disposition by ~~Buyer~~ the Administrative Agent or the Lenders of any ~~property~~ Property encumbered by any ~~Purchased Assets~~Collateral, the Pledged Collateral or any collateral, ~~property~~ Property or security for this Guarantee or the ~~Guarantor Liabilities~~ Guarantee Obligations, each Guarantor shall be and shall remain jointly and severally liable for any deficiency.

Appears in 1 contract

Samples: Guarantee Agreement (Gramercy Capital Corp)

Joint and Several Obligations. ~~(a) At all times when there is more than one Guarantor under this Guaranty, each Guarantor hereby acknowledges and agrees that (i) each Guarantor~~ Each of the Makers shall be jointly and severally liable ~~to Buyer~~ hereunder regardless of which of the Makers actually receives the proceeds of any indebtedness evidenced hereby, or the manner in which the Makers, the Administrative Agent or any of the Lenders account therefor in their respective books and records. Each Maker’s obligations and liabilities with respect to the ~~maximum extent permitted~~ indebtedness evidenced hereby, and each Maker’s obligations and liabilities arising as a result of the joint and several liability of the Makers hereunder, shall be primary and distinct obligations of such Maker. The joint and several liability of each Maker hereunder shall be impaired or released by ~~Requirements~~ (i) any failure of ~~Law for all Guarantor Liabilities~~the Payee, the Administrative Agent, any Issuing Bank or any other Lender, or any successors or assigns thereof, to assert any claim or demand or to exercise or enforce any right, power or remedy against any other Maker, any other Loan Party, any other Person, any collateral security or otherwise; (ii) any extension or renewal for any period (whether or not longer than the ~~liability of each Guarantor (A~~original period) ~~shall be absolute and unconditional and shall remain in full force and effect (~~or be reinstated) until the Guaranteed Indebtedness shall have been fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration exchange of any ~~applicable preference~~ of the indebtedness evidenced hereby or ~~similar period pursuant to~~ the release or compromise of any ~~Insolvency Law~~obligation of any nature of any Person with respect thereto; (iii) any surrender, release or ~~at law or in equity, without any claim having been made before the expiration~~ exchange of ~~such period asserting an interest in~~ all or any part of any ~~payment(s) received by Buyer~~collateral now or hereafter securing payment, and (B) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any of the following, whether or not with notice to or the consent of each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement of the time for payment or performance ~~or renewal or refinancing)~~ and/or observance of any of the ~~Repurchase Obligations, Guarantor Liabilities,~~ indebtedness evidenced hereby or the compromise or extension or renewal for any period (2whether or not longer than the original period) ~~the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer~~ of any Purchased Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities (in each case, whether with or without consideration) or the acceptance by Buyer obligations of any ~~additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release~~ nature of any Person ~~primarily~~ with respect to any such property; (iv) any action or ~~secondarily liable for all or any~~ inaction on the part of the ~~Repurchase Obligations or~~ Payee, the ~~Guarantor Liabilities~~Administrative Agent, ~~whether by Buyer or in connection with~~ any ~~Insolvency Proceeding affecting any Guarantor~~ Issuing Bank or any other ~~Person who~~Lender, or any other event or condition with respect to any other Maker, including any such action or inaction or other event or condition, which might otherwise constitute a defense available to, or a discharge of, such other Maker, or a guarantor or surety of ~~whose property, shall at the time in question be obligated in respect~~ or for any or all of the ~~Repurchase Obligations~~ indebtedness evidenced hereby; and (v) any other act, matter or ~~the Guarantor Liabilities, the~~ thing (other ~~duties and obligations under the Repurchase Documents~~ than payment or ~~any part~~ performance of the ~~foregoing,~~ indebtedness evidenced hereby) which would or ~~(5) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would~~might, in the absence of this ~~Section 6.28~~provision, ~~result in~~ operate to release, discharge or otherwise prejudicially affect the ~~release or discharge~~ obligations of any or all of Guarantors from the performance or observance of any of the Guarantor Liabilities, (iii) Buyer shall not be required first to initiate any suit or to exhaust its remedies against any Guarantor such or any other ~~Person~~ Maker. Signature Page to ~~become liable~~Revolving Loan Note ALLSCRIPTS-MISYS HEALTHCARE SOLUTIONS, ~~or against any of the Purchased Assets~~INC. (F/K/A ALLSCRIPTS HEALTHCARE SOLUTIONS, ~~Pledged Collateral or any collateral~~INC.), ~~property or security for the Repurchase Documents or the Guarantor Liabilities~~a Delaware corporation By: Name: Title: ALLSCRIPTS, ~~in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that~~LLC, ~~notwithstanding the occurrence of any of the foregoing~~a Delaware limited liability company By: Name: Title: A4 HEALTH SYSTEMS, ~~each Guarantor shall be and remain directly and unconditionally liable for all sums due under this Guaranty~~INC., ~~(iv) when making any demand hereunder against any Guarantor~~a North Carolina corporation By: Name: Title: A4 REALTY, ~~Buyer may~~LLC, ~~but shall be under no obligation to~~a North Carolina limited liability company By: Name: Title: EXTENDED CARE INFORMATION NETWORK, ~~make~~ INC., a ~~similar demand on any other Guarantor~~Delaware corporation By: Name: Title: MISYS HEALTHCARE SYSTEMS, LLC, a North Carolina limited liability company By: Allscripts-Misys Healthcare Solutions, Inc., Its sole member By: Name: Title: EXHIBIT C-2 FORM OF SWINGLINE NOTE [$ ] [Date] Chicago, Illinois FOR VALUE RECEIVED, Allscripts-Misys Healthcare Solutions, Inc., a Delaware corporation, Allscripts LLC, a Delaware limited liability company, A4 Health Systems, Inc., a North Carolina corporation, A4 Realty, LLC, a North Carolina limited liability company, Extended Care Information Network, Inc., a Delaware corporation, and ~~any failure by Buyer to make any such demand or to collect any payments from any other Guarantor~~Misys Healthcare Systems, ~~or any release of any such other Guarantor~~LLC, ~~shall not relieve any Guarantor in respect of which~~ a ~~demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder~~North Carolina limited liability company (together with permitted successors, and shall not impair or affect the rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documentsherein collectively called “Makers”), and (v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally ~~liable for any deficiency~~promise to pay to the order of (“Payee”), at the office of JPMorgan Chase Bank, N.A., as Administrative Agent, in Chicago, Illinois, in immediately available funds and in lawful money of the United States of America, the principal sum of and No/100 Dollars ($ ) (or the unpaid balance of all principal advanced against this note, if that amount is less), together with interest on the unpaid principal balance of this note from time to time outstanding at the rate or rates provided in that certain Second Amended and Restated Credit Agreement dated as of February 10, 2009 (as amended, supplemented, restated or replaced from time to time, the “Credit Agreement”) among Makers, certain Lenders (including the Payee) and JPMorgan Chase Bank, N.A., as Administrative Agent. Any term defined in the Credit Agreement which is used in this note and which is not otherwise defined in this note shall have the meaning ascribed to it in the Credit Agreement.

Appears in 1 contract

Samples: Credit Agreement (Allscripts-Misys Healthcare Solutions, Inc.)

Joint and Several Obligations. ~~(a) At all times when there is more than one Guarantor under this Guaranty, each Guarantor hereby acknowledges and agrees that (i) each Guarantor~~ Each Borrower shall be jointly and severally liable ~~to Buyer to the maximum extent permitted by Requirements of Law~~ for all ~~Guarantor Liabilities~~the Obligations, and confirms that it will obtain a substantial benefit by the incurrence of Obligations by the other Borrower. Each Borrower shall keep itself apprised of the financial condition of the other Borrower. Each Borrower waives (a) any suretyship defenses available to it under the Bankruptcy Code or any other applicable law, and (b) any right to require the Sellers’ Representative to: (i) proceed against any other Borrower or any other Person; (ii) proceed against or exhaust any security; or (iii) pursue any other remedy. The Sellers’ Representative may exercise or not exercise any right or remedy it has against any Borrower or any security it holds (including the ~~liability~~ right of ~~each Guarantor (A~~the Sellers’ Representative or an engaged third party to foreclose by judicial or non- judicial sale in compliance with relevant laws and regulations) ~~shall be absolute and unconditional and shall remain in full force and effect (~~without affecting any Borrower's liability. Notwithstanding any other provision of this Note or ~~be reinstated)~~ other Loan Document, until the ~~Guaranteed Indebtedness shall~~ Termination Date, each Borrower irrevocably waives all rights that it may have been fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration of any applicable preference or similar period pursuant to any Insolvency Law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by Buyer, and (B) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any of the following, whether or not with notice to or the consent of each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment equity (including any ~~extension or postponement~~ law subrogating any Borrower to the rights of the ~~time for payment or performance or renewal or refinancing~~Sellers’ Representative under this Note) ~~of any of the Repurchase Obligations~~to seek contribution, Guarantor Liabilities, (2) the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer of any Purchased Asset, Pledged Collateral indemnification or any ~~collateral~~other form of reimbursement from any other Borrower or Seller Note Party, ~~property~~ for any payment made by such Borrower with respect to the Obligations and all rights that it might have to benefit from, or to participate in, any security for the ~~Repurchase Documents or the Guarantor Liabilities (in each case, whether with or without consideration) or the acceptance by Buyer~~ Obligations as a result of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the Repurchase Obligations or the Guarantor Liabilities, whether payment made by ~~Buyer or in connection~~ such Borrower with ~~any Insolvency Proceeding affecting any Guarantor or any other Person who, or any of whose property, shall at the time in question be obligated in~~ respect ~~of the Repurchase Obligations or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents or any part of the foregoing, or (5)~~ to the ~~extent permitted by Requirements of Law~~Obligations. Until the Termination Date, if any ~~other event, occurrence, action or circumstance that would,~~ payment is made to a Borrower in ~~the absence~~ contravention of this Section ~~6.28~~8, ~~result~~ such Borrower shall hold such payment in the release or discharge of any or all of Guarantors from the performance or observance of any of the Guarantor Liabilities, (iii) Buyer shall not be required first to initiate any suit or to exhaust its remedies against any Guarantor or any other Person to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security trust for the ~~Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents~~ Sellers’ Representative and ~~each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, each Guarantor~~ such payment shall be ~~and remain directly and unconditionally liable~~ promptly delivered to the Sellers’ Representative for ~~all sums due under this Guaranty~~application to the Obligations, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantor, and any failure by Buyer to make any such demand whether matured or to collect any payments from any other Guarantor, or any release of any such other Guarantor, shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents), and (v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally liable for any deficiencyunmatured. 9.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Knowles Corp)

Joint and Several Obligations. ~~(a) At all times when there~~ Each Borrower acknowledges that it is ~~more than one Guarantor under this Guaranty, each Guarantor hereby acknowledges and agrees that (i) each Guarantor shall be~~ jointly and severally liable for all of the Obligations and as a result hereby unconditionally guaranties the full and prompt payment when due, whether at maturity or earlier, by reason of acceleration or otherwise, and at all times thereafter, of all indebtedness, liabilities and obligations of every kind and nature of each other Borrower to ~~Buyer~~ Agent and Lenders and, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, joint or several, now or hereafter existing, or due or to become due, and howsoever owned, held or acquired by Agent or any Lender. Each Borrower agrees that if this guaranty, or any Liens securing this guaranty, would, but for the application of this sentence, be unenforceable under applicable law, this guaranty and each such Lien shall be valid and enforceable to the maximum extent ~~permitted~~ that would not cause this guaranty or such Lien to be unenforceable under applicable law, and this guaranty shall automatically be deemed to have been amended accordingly at all relevant times. Each Borrower hereby agrees that its obligations under this guaranty shall be unconditional, irrespective of (a) the validity or enforceability of the Obligations or any part thereof, or of any promissory note or other document evidencing all or any part of the Obligations, (b) the absence of any attempt to collect the Obligations from any other Borrower or any Guarantor or other action to enforce the same, (c) the waiver or consent by ~~Requirements~~ Agent or any Lender with respect to any provision of ~~Law~~ any agreement, instrument or document evidencing or securing all or any part of the Obligations, or any other agreement, instrument or document now or hereafter executed by any other Borrower and delivered to Agent or any Lender (other than a waiver, forgiveness or consent by Agent and Lenders that reduces the amount of any of the Obligations), (d) the failure by Agent or any Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or Collateral for the Obligations, for its benefit, (e) Agent’s or any Lender’s election, in any proceeding instituted under the United States Bankruptcy Code or any other similar bankruptcy or insolvency legislation, of the application of Section 1111(b)(2) of the United States Bankruptcy Code or any other similar bankruptcy or insolvency legislation, (f) any borrowing or grant of a security interest by any Borrower as debtor-in-possession, under Section 364 of the United States Bankruptcy Code or any other similar bankruptcy or insolvency legislation, (g) the disallowance, under Sxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or any other similar bankruptcy or insolvency legislation, of all ~~Guarantor Liabilities~~or any portion of Agent’s or any Lender’s claim(s) for repayment of the Obligations or (h) any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a borrower or a guarantor. Each Borrower hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of receivership or bankruptcy of any Borrower, protest or notice with respect to the Obligations and all demands whatsoever, and covenants that this guaranty will not be discharged, except by complete and irrevocable payment and performance of the Obligations. No notice to any Borrower or any other party shall be required for Agent or any Lender to make demand hereunder. Such demand shall constitute a mature and liquidated claim against the applicable Borrower. Upon the occurrence of any Event of Default, Agent or any Lender may, in its sole election, proceed directly and at once, without notice, against all or any Borrower to collect and recover the full amount or any portion of the Obligations, without first proceeding against any other Borrower or any other Person, or any security or collateral for the Obligations. During the existence of an Event of Default, Agent and each Lender shall have the exclusive right to determine the application of payments and credits, if any from any Borrower, any other Person or any security or collateral for the Obligations, on account of the Obligations or of any other liability of any Borrower to Agent or any Lender. At any time after and during the continuance of an Event of Default, Agent and each Lender may, in its sole discretion, without notice to any Borrower and regardless of the acceptance of any collateral for the payment hereof, appropriate and apply toward payment of the Obligations (i) any indebtedness due or to become due from Agent or any Lender to such Borrower and (ii) any moneys, credits or other property belonging to such Borrower at any time held by or coming into the possession of Agent or any Lender or any Affiliates thereof, whether for deposit or otherwise. Notwithstanding anything to the contrary set forth in this Section 2.13, it is the intent of the parties hereto that the liability incurred by each Borrower in respect of the Obligations of the other Borrowers (and any Lien granted by each ~~Guarantor~~ Borrower to secure such Obligations), not constitute a fraudulent conveyance under Section 548 of the United States Bankruptcy Code or a fraudulent conveyance or fraudulent transfer under the provisions of any applicable law of any state or other governmental unit (A“Fraudulent Conveyance”). Consequently, each Borrower, Agent and each Lender hereby agree that if a court of competent jurisdiction determines that the incurrence of liability by any Borrower in respect of the Obligations of any other Borrower (or any Liens granted by such Borrower to secure such Obligations) would, but for the application of this sentence, constitute a Fraudulent Conveyance, such liability (and such Liens) shall be ~~absolute~~ valid and ~~unconditional~~ enforceable only to the maximum extent that would not cause the same to constitute a Fraudulent Conveyance, and this Agreement and the other Loan Documents shall ~~remain in full force and effect (or~~ automatically be ~~reinstated) until the Guaranteed Indebtedness shall~~ deemed to have been ~~fully and indefeasibly paid~~amended accordingly. Each Borrower expressly waives all rights it may have now or in the future under any statute, ~~the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration of any applicable preference~~ or ~~similar period pursuant to any Insolvency Law~~at common law, or at law or in equity, ~~without any claim having been made before the expiration of such period asserting an interest in all~~ or ~~any part of any payment(s) received by Buyer~~otherwise, ~~and (B) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified~~ to compel Agent or ~~impaired on the occurrence from time~~ Lenders to ~~time of any event, including any of the following, whether~~ mxxxxxxx assets or ~~not with notice~~ to or the consent of each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement of the time for payment or performance or renewal or refinancing) of any of the Repurchase Obligations, Guarantor Liabilities, (2) the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer of any Purchased Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities (in each case, whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the Repurchase Obligations or the Guarantor Liabilities, whether by Buyer or in connection with any Insolvency Proceeding affecting any Guarantor or any other Person who, or any of whose property, shall at the time in question be obligated proceed in respect of the ~~Repurchase~~ Obligations ~~or the Guarantor Liabilities, the~~ guaranteed hereunder against any other ~~duties and obligations under the Repurchase Documents~~ Borrower or any ~~part of the foregoing, or (5) to the extent permitted by Requirements of Law~~Guarantor, any other ~~event~~party or against any security for the payment and performance of the Obligations before proceeding against, ~~occurrence~~or as a condition to proceeding against, ~~action~~ such Borrower. It is agreed among each Borrower, Agent and Lenders that the foregoing waivers are of the essence of the transaction contemplated by this Agreement and the other Loan Documents and that, but for the provisions of this Section 2.13 and such waivers, Agent and Lenders would decline to enter into this Agreement. Each Borrower agrees that the provisions of this Section 2.13 are for the benefit of Agent and Lenders and their respective successors, transferees, endorsees and assigns, and nothing herein contained shall impair, as between any other Borrower and Agent or ~~circumstance~~ Lenders, the obligations of such other Borrower under the Loan Documents. Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, and except as set forth in Section 2.13, each Borrower hereby expressly and irrevocably subordinates to payment of the Obligations any and all rights at law or in equity to subrogation, reimbursement, exoneration, contribution, indemnification or set off (including those set forth in Section 2.14) and any and all defenses available to a surety, guarantor or accommodation co-obligor until the Obligations are indefeasibly paid in full in cash. Each Borrower acknowledges and agrees that ~~would~~this subordination is intended to benefit Agent and Lenders and shall not limit or otherwise affect such Borrower’s liability hereunder or the enforceability of this Section 2.13, and that Agent, Lenders and their respective successors and assigns are intended third party beneficiaries of the waivers and agreements set forth in this Section 2.13. If Agent or any Lender may, under applicable law, proceed to realize its benefits under any of the Loan Documents giving Agent or such Lender a Lien upon any Collateral, whether owned by any Borrower or by any other Person, either by judicial foreclosure or by non-judicial sale or enforcement, Agent or any Lender may, at its sole option, determine which of its remedies or rights it may pursue without affecting any of its rights and remedies under this Section 2.13. If, in the ~~absence of this Section 6.28, result in the release or discharge of any or all of Guarantors from the performance or observance~~ exercise of any of ~~the Guarantor Liabilities, (iii) Buyer shall not be required first to initiate any suit or to exhaust~~ its remedies against any Guarantor or any other Person to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, each Guarantor shall be and remain directly and unconditionally liable for all sums due under this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantor, and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor, or any release of any such other Guarantor, shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, ~~express~~ Agent or ~~implied~~any Lender shall forfeit any of its rights or remedies, ~~or as~~ including its right to enter a ~~matter of Requirements of Law, of Buyer~~ deficiency judgment against ~~Guarantors (or of~~ any ~~Guarantor against another Guarantor or Seller, Pledgor~~ Borrower or any other ~~Person obligated under the Repurchase Documents)~~Person, ~~and (v) on disposition by Buyer~~ whether because of any ~~property encumbered~~ applicable laws pertaining to “election of remedies” or the like, each Borrower hereby consents to such action by Agent or such Lender and waives any ~~Purchased Assets~~claim based upon such action, ~~Pledged Collateral~~ even if such action by Agent or such Lender shall result in a full or partial loss of any rights of subrogation that each Borrower might otherwise have had but for such action by Agent or such Lender. Any election of remedies that results in the denial or impairment of the right of Agent or any ~~collateral~~Lender to seek a deficiency judgment against any Borrower shall not impair any other Borrower’s obligation to pay the full amount of the Obligations. In the event Agent or any Lender shall bid at any foreclosure or trustee’s sale or at any private sale permitted by law or the Loan Documents, ~~property~~ Agent or ~~security for~~ such Lender may bid all or less than the ~~Guarantor Liabilities each Guarantor~~ amount of the Obligations and the amount of such bid need not be paid by Agent or such Lender but shall be credited against the Obligations. The amount of the successful bid at any such sale, whether Agent, Lender or any other party is the successful bidder, shall be conclusively deemed to be the fair market value of the Collateral and the difference between such bid amount and the remaining balance of the Obligations shall be conclusively deemed to be the amount of the Obligations guaranteed under this Section 2.13, notwithstanding that any present or future law or court decision or ruling may have the effect of reducing the amount of any deficiency claim to which Agent or any Lender might otherwise be entitled but for such bidding at any such sale. The liability of Borrowers under this Section 2.13 is in addition to and shall ~~remain jointly~~ be cumulative with all liabilities of each Borrower to Agent and ~~severally liable for~~ Lenders under this Agreement and the other Loan Documents to which such Borrower is a party or in respect of any ~~deficiency~~Obligations or obligation of the other Borrower, without any limitation as to amount, unless the instrument or agreement evidencing or creating such other liability specifically provides to the contrary.

Appears in 1 contract

Samples: Loan and Security Agreement (Wabash National Corp /De)

Joint and Several Obligations. (a) ~~At all times when there is more than one Guarantor under this Guaranty, each Guarantor~~ Seller hereby acknowledges and agrees that (i) ~~each Guarantor~~ Seller shall be jointly and severally liable with the sellers under the Other Repurchase Agreement to Buyer to the maximum extent permitted by Requirements of Law for all ~~Guarantor Liabilities~~Repurchase Obligations and Other Facility Repurchase Obligations, (ii) the liability of ~~each Guarantor~~ Seller (A) shall be absolute and unconditional and shall remain in full force and effect (or be reinstated) until ~~the Guaranteed Indebtedness~~ all Repurchase Obligations and Other Facility Repurchase Obligations shall have been ~~fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated~~ paid in full and the expiration of any applicable preference or similar period pursuant to any Insolvency Law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by Buyer, and (B) until such payment has been ~~made and such obligations satisfied~~made, shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any of the following, whether or not with notice to or the consent of ~~each Guarantor~~Seller, (1) the waiver, compromise, settlement, release, modification, supplementation, termination or amendment (including any extension or postponement of the time for payment or performance or renewal or refinancing) of any of the Repurchase Obligations, ~~Guarantor Liabilities~~Repurchase Documents, Other Facility Repurchase Obligations or “Repurchase Documents” (as defined in the Other Repurchase Agreement), (2) the failure to give notice to ~~each Guarantor~~ Seller of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer of any Purchased Asset or “Purchased Asset~~, Pledged Collateral or any collateral, property or security for~~ ” (as defined in the Other Repurchase ~~Documents or the Guarantor Liabilities~~ Agreement) (~~in each case,~~ whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the Repurchase Obligations or the ~~Guarantor Liabilities~~Other Facility Repurchase Obligations, whether by Buyer or in connection with any Insolvency Proceeding affecting Seller, any ~~Guarantor~~ seller under the Other Repurchase Agreement, or any other Person who, or any of whose property, shall at the time in question be obligated in respect of the Repurchase ~~Obligations or the Guarantor Liabilities~~Obligations, the ~~other duties and obligations under the~~ Other Facility Repurchase ~~Documents~~ Obligations or any part thereof, (5) the sale, exchange, waiver, surrender or release of any Purchased Asset, “Purchased Asset” (as defined in the ~~foregoing~~Other Repurchase Agreement), guarantee or other collateral by Buyer, (6) the failure of Buyer to protect, secure, perfect or insure any Lien at any time held by Buyer as security for amounts owed by Seller or any seller under the Other Repurchase Agreement, or (57) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section ~~6.28~~18.27, result in the release or discharge ~~of any or all of Guarantors~~ Seller from the performance or observance of any Repurchase Obligation or any seller from the performance or observance of ~~the Guarantor Liabilities~~any Other Facility Repurchase Obligation, (iii) Buyer shall not be required first to initiate any suit or to exhaust its remedies against Seller, any ~~Guarantor~~ seller under the Other Repurchase Agreement or any other Person to become liable, or against any of the Purchased Assets or “Purchased Assets~~, Pledged Collateral or any collateral, property or security for~~ ” (as defined in the Other Repurchase ~~Documents or the Guarantor Liabilities~~Agreement), in order to enforce ~~this Guaranty or other~~ the Repurchase Documents and ~~each Guarantor~~ the “Repurchase Documents” (as defined in the Other Repurchase Agreement) and Seller expressly agrees that, notwithstanding the occurrence of any of the foregoing, ~~each Guarantor~~ Seller shall be and remain directly and ~~unconditionally~~ primarily liable for all sums due under ~~this Guaranty~~any of the Repurchase Documents and the “Repurchase Documents” (as defined in the Other Repurchase Agreement), (iv) when making any demand hereunder against Seller or any ~~Guarantor~~of the Purchased Assets, Buyer may, but shall be under no obligation to, make a similar demand on any seller under the Other Repurchase Agreement, or otherwise pursue such rights and remedies as it may have against any seller under the Other Repurchase Agreement or any other ~~Guarantor~~Person or against any collateral security or guarantee related thereto or any right of offset with respect thereto, and any failure by Buyer to make any such ~~demand~~ demand, file suit or otherwise pursue such other rights or remedies or to collect any payments from any such other ~~Guarantor~~seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of any such other ~~Guarantor~~seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve ~~any Guarantor in respect of which~~ Seller if a demand or collection is not made ~~or Guarantors~~ and shall not ~~so released~~ release Seller of ~~their~~ its obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of ~~Requirements of Law~~law, of Buyer against ~~Guarantors~~ Seller (or as used herein, the term “demand” shall include the commencement and continuation of ~~any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents~~legal proceedings), ~~and~~ (v) on disposition by Buyer of any property encumbered by any Purchased Assets or “Purchased Assets” (as defined in the Other Repurchase Agreement), ~~Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor~~ Seller shall be and shall remain jointly and severally liable for any deficiency, (vi) Seller waives (A) any and all notice of the creation, renewal, extension or accrual of any amounts at any time owing to Buyer by any other seller under the “Repurchase Documents” (as defined in the Other Repurchase Agreement) and notice of or proof of reliance by Buyer upon Seller or acceptance of the obligations of Seller under this Section 18.27, and all such amounts, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the obligations of Seller under this Agreement, and all dealings between Seller, on the one hand, and Buyer, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the obligations of Seller under this Agreement and the Other Repurchase Agreement, and (B) diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Seller with respect to any amounts at any time owing to Buyer by Seller under the Repurchase Documents or any other seller under the “Repurchase Documents” (as defined in the Other Repurchase Agreement), and (vii) Seller shall continue to be liable under this Section 18.27 without regard to (A) the validity, regularity or enforceability of any other provision of this Agreement, the Other Repurchase Agreement, any other Repurchase Document or any other “Repurchase Document” (as defined in the Other Repurchase Agreement), any amounts at any time owing to Buyer by Seller under the Repurchase Documents or any seller under the “Repurchase Documents” (as defined in the Other Repurchase Agreement), or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by Buyer, (B) any defense, set off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by Seller against Buyer, or (iii) any other circumstance whatsoever (with or without notice to or knowledge of Seller) which constitutes, or might be construed to constitute, an equitable or legal discharge of Seller for any amounts owing to Buyer by Seller under the Repurchase Documents, or of any seller under the “Repurchase Documents” (as defined in the Other Repurchase Agreement), in bankruptcy or in any other instance.

Appears in 1 contract

Samples: Master Repurchase and Securities Contract (Blackstone Mortgage Trust, Inc.)

Joint and Several Obligations. (a) At all times ~~when~~ during which there is more than one (1) Guarantor under this ~~Guaranty~~Agreement, each Guarantor hereby acknowledges and agrees that (i) each Guarantor shall be jointly and severally liable to Buyer to the maximum extent permitted by Requirements of Law for all Guarantor Liabilities, (ii) the liability of each Guarantor shall be joint and several and the joint and several obligations of each Guarantor under this Guarantee and the other Credit Documents (Aa) (i) shall be absolute and unconditional and shall remain in full force and effect (or be reinstated) until all the ~~Guaranteed Indebtedness~~ Guarantee Obligations shall have been ~~fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated~~ satisfied and the expiration of any applicable preference or similar period pursuant to any ~~Insolvency Law~~bankruptcy, insolvency, reorganization, moratorium or similar law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by ~~Buyer~~the Administrative Agent or the Lenders, and (Bii) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the ~~occurrence~~ happening from time to time of any event, ~~including~~ including, without limitation, any of the following, whether or not with notice to or the consent of ~~each Guarantor~~the Borrowers, the Guarantors, the Pledgors or any other Credit Party, (1A) the waiver, compromise, settlement, release, termination or amendment (~~including~~ including, without limitation, any extension or postponement of the time for payment or performance or renewal or refinancing) of any or all of the ~~Repurchase Obligations~~obligations or agreements of any Borrower, ~~Guarantor Liabilities~~Guarantor, Pledgor or any other Credit Party under the Credit Agreement or any Credit Document, (2B) the failure to give notice to ~~each Guarantor~~ the Borrowers, the Guarantors, the Pledgors or any other Credit Party of the occurrence of an Event of ~~Default~~Default under any of the Credit Documents, (3C) the release, substitution or exchange by ~~Buyer~~ the Administrative Agent or the Lenders of any ~~Purchased Asset~~or all of the Collateral, Pledged Collateral or any collateral, ~~property~~ Property or security for the ~~Repurchase Documents~~ Guarantee or the ~~Guarantor Liabilities~~ Guarantee Obligations (in each case, whether with or without consideration) or the acceptance by ~~Buyer~~ the Administrative Agent or the Lenders of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4D) the release of any Person primarily or secondarily liable for all or any part of the ~~Repurchase~~ Obligations or the ~~Guarantor Liabilities~~Guarantee Obligations, whether by ~~Buyer~~ the Administrative Agent, the Lenders or in connection with any ~~Insolvency Proceeding~~ voluntary or involuntary liquidation, dissolution, receivership, insolvency, bankruptcy, assignment for the benefit of creditors or similar event or proceeding affecting any ~~Guarantor~~ or all of the Borrowers, the Guarantors, the Pledgors, any other Credit Party or any other Person who, or any of whose ~~property~~Property or assets, shall at the time in question be obligated in respect of the ~~Repurchase~~ Obligations or the ~~Guarantor Liabilities, the other duties and obligations under the Repurchase Documents~~ Guarantee Obligations or any part ~~of the foregoing~~thereof, or (5E) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section ~~6.28~~37, result in the release or discharge of any or all of the Guarantors from the performance or observance of any of obligation, covenant or agreement contained in the Credit Agreement or the Credit Documents; (b) each Guarantor ~~Liabilities, (iii) Buyer~~ expressly agrees that the Administrative Agent and the Lenders shall not be required first to initiate any suit or to exhaust its remedies against the Borrowers, the Guarantors, the Pledgors, any ~~Guarantor~~ other Credit Party or any other Person to become liable, or against any of the ~~Purchased Assets~~Collateral, the Pledged Collateral or any collateral, ~~property~~ security or ~~security~~ Property for ~~the Repurchase Documents~~ this Guarantee or the ~~Guarantor Liabilities~~Guarantee Obligations, in order to enforce this ~~Guaranty~~ Guarantee or ~~other Repurchase~~ the Credit Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, each Guarantor shall be and remain directly and ~~unconditionally~~ primarily liable for all sums due under this ~~Guaranty~~Guarantee or any of the Credit Documents; and, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantor, and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor, or any release of any such other Guarantor, shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents), and (vc) on disposition by ~~Buyer~~ the Administrative Agent or the Lenders of any ~~property~~ Property encumbered by any ~~Purchased Assets~~Collateral, the Pledged Collateral or any collateral, ~~property~~ Property or security for this Guarantee or the ~~Guarantor Liabilities~~ Guarantee Obligations, each Guarantor shall be and shall remain jointly and severally liable for any deficiency.

Appears in 1 contract

Samples: Guarantee Agreement (Gramercy Capital Corp)

Joint and Several Obligations. ~~(a) At all times when there~~ Each Borrower hereby unconditionally and irrevocably agrees it is ~~more than one Guarantor under this Guaranty, each Guarantor hereby acknowledges and agrees that (i) each Guarantor shall be~~ jointly and severally liable to ~~Buyer to~~ the ~~maximum extent permitted by Requirements of Law~~ Administrative Agent and the Lenders for ~~all Guarantor Liabilities~~the Obligations arising under this Agreement and the Loan Documents, ~~(ii)~~ including those amounts due under Sections 9.1, 9.4 and 11.5. In furtherance thereof, each Borrower agrees that wherever in this Agreement it is provided that a Borrower is liable for a payment, such obligation is the ~~liability~~ joint and several obligation of each ~~Guarantor (A) shall be~~ Borrower. Each Borrower acknowledges and agrees that its joint and several liability under this Agreement and the Loan Documents is absolute and unconditional and shall ~~remain~~ not in ~~full force~~ any manner be affected or impaired by any acts or omissions whatsoever by the Administrative Agent or the Lenders. Each Borrower’s liability for the Obligations arising under this Agreement and ~~effect (~~the Loan Documents shall not in any manner be impaired or ~~be reinstated)~~ affected by who receives or uses the proceeds of the Loans, Letters of Credit or other extensions of credit or for what purpose the proceeds are used, and each Borrower waives notice of borrowing requests issued by, and loans made to, other Borrowers. Each Borrower hereby agrees not to exercise or enforce any right of exoneration, contribution, reimbursement, recourse or subrogation available to such Borrower against any party liable for payment under this Agreement and the Loan Documents unless and until the ~~Guaranteed Indebtedness shall have been fully~~ Facility Termination Date. Each Borrower’s joint and ~~indefeasibly paid~~several liability hereunder with respect to the Obligations shall, to the ~~Guarantor Liabilities shall have been fully and indefeasibly paid~~fullest extent permitted by applicable law, ~~performed and discharged,~~ be the Repurchase Documents have been terminated and the expiration of any applicable preference or similar period pursuant to any Insolvency Law, or at law or in equity, without any claim having been made before the expiration unconditional liability of such ~~period asserting an interest in all or any part~~ Borrower irrespective of ~~any payment(s) received by Buyer, and~~ (B) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any of the following, whether or not with notice to or the consent of each Guarantor, (1i) the ~~waiver~~validity, ~~compromise~~enforceability, ~~settlement, release, termination~~ avoidance or ~~amendment (including any extension or postponement of the time for payment or performance or renewal or refinancing)~~ subordination of any of the ~~Repurchase Obligations, Guarantor Liabilities, (2) the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release, substitution~~ Obligations or exchange by Buyer of any Purchased Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities (in each case, whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other ~~collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for~~ document evidencing all or any part of the ~~Repurchase~~ Obligations, (ii) the absence of any attempt to collect any of the Obligations from any other Loan Party or any Collateral or other security therefor, or the ~~Guarantor Liabilities~~absence of any other action to enforce the same, ~~whether~~ (iii) the amendment, modification, waiver, consent, extension, forbearance or granting of any indulgence by ~~Buyer~~ Administrative Agent or ~~in connection~~ any Lender with respect to any ~~Insolvency Proceeding affecting~~ provision of any ~~Guarantor~~ instrument executed by any other Loan Party evidencing or securing the payment of any of the Obligations, or any other ~~Person who~~agreement now or hereafter executed by any other Loan Party and delivered to Administrative Agent or any Lender, (iv) the failure by Administrative Agent to take any steps to perfect or maintain the perfected status of its security interest in or Lien upon, or to preserve its rights to, any of the Collateral or other security for the payment or performance of any of the Obligations or Administrative Agent’s release of any Collateral or of its Liens upon any Collateral, (v) the release or compromise, in whole or in part, of the liability of any other Loan Party for the payment of any of the Obligations, (vi) any increase in the amount of the Obligations beyond any limits imposed herein or in the amount of any interest, fees or other charges payable in connection therewith, in each case, if consented to by any other Borrower, or any decrease in the same, or (vii) any other circumstance that might constitute a legal or equitable discharge or defense of ~~whose property~~any Loan Party. After the occurrence and during the continuance of any Event of Default, ~~shall~~ Administrative Agent may proceed directly and at ~~the time in question be obligated in respect~~ once, without notice to either Borrower, against any or all of ~~the Repurchase Obligations or the Guarantor Liabilities, the other duties~~ Loan Parties to collect and ~~obligations under the Repurchase Documents~~ recover all or any part of the ~~foregoing~~Obligations, ~~or (5) to the extent permitted by Requirements of Law,~~ without first proceeding against any other ~~event~~Loan Party or against any Collateral or other security for the payment or performance of any of the Obligations, ~~occurrence, action~~ and each Borrower waives any provision that might otherwise require Administrative Agent under applicable law to pursue or ~~circumstance~~ exhaust its remedies against any Collateral or other Loan Party before pursuing such Borrower or its Property. Each Borrower consents and agrees that ~~would,~~ Administrative Agent shall be under no obligation to marshal any assets in ~~the absence~~ favor of ~~this Section 6.28, result~~ any Loan Party or against or in ~~the release or discharge~~ payment of any or all of ~~Guarantors from~~ the ~~performance or observance of any~~ Obligations. This Agreement is entered into between us for the uses and purposes hereinabove set forth as of the ~~Guarantor Liabilities~~date first above written. “Borrowers” Turning Point Brands, ~~(iii) Buyer shall not be required first to initiate any suit or to exhaust its remedies against any Guarantor or any other Person to become liable~~Inc. By /s/ Xxxx X. Xxxxxxxx Name: Xxxx X. Xxxxxxxx Title: Senior Vice President and Chief Financial Officer North Atlantic Trading Company, ~~or against any of the Purchased Assets~~Inc. By /s/ Xxxx X. Xxxxxxxx Name: Xxxx X. Xxxxxxxx Title: Senior Vice President and Chief Financial Officer “Guarantors” Intrepid Brands, ~~Pledged Collateral or any collateral~~LLC NATC Holding Company, ~~property or security for the Repurchase Documents or the Guarantor Liabilities~~Inc. National Tobacco Company, ~~in order to enforce this Guaranty or other Repurchase Documents~~ L.P. National Tobacco Finance Corporation North Atlantic Operating Company, Inc. North Atlantic Cigarette Company, Inc. RBJ Sales, Inc. Smoke Free Technologies Inc. Xxxxxx, Inc. Turning Point Brands, LLC By /s/ Xxxx X. Xxxxxxxx Name: Xxxx X. Xxxxxxxx Title: Senior Vice President and ~~each Guarantor expressly agrees that~~Chief Financial Officer “Lenders” Fifth Third Bank, ~~notwithstanding the occurrence of any of the foregoing~~an Ohio banking corporation, ~~each Guarantor shall be and remain directly and unconditionally liable for all sums due under this Guaranty~~as a Lender, ~~(iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantor~~as L/C Issuer, and ~~any failure by Buyer to make any such demand or to collect any payments from any other Guarantor~~as Administrative Agent By /s/ Xxxxxxx Xxxxxxxxx Name Xxxxxxx Xxxxxxxxx Title Senior Vice President Capital One, ~~or any release of any such other Guarantor~~National Association, shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a ~~matter~~ Lender and as Syndication Agent By /s/ Xxxxx X. Xxxxxxx Name Xxxxx X. Xxxxxxx Title Director Regions Bank, as a Lender and as Documentation Agent By /s/ Meera Patez Name Meera Patez Title Director PBI Bank, Inc. as a Lender By /s/ Xxxxxx X. Xxxxxx Name Xxxxxx X. Xxxxxx Title Executive Vice President Trustmark National Bank, as a Lender By /s/ Xxxxxxx Xxxxx Name Xxxxxxx Xxxxx Title Senior Vice President HMS Income Fund, as a Lender By /s/ Xxxxxxxxx Paloma Name Xxxxxxxxx Paloma Title Authorized Agent Main Street Capital Corporation, as a Lender By /s/ Xxxx Xxxxxxx Name Xxxx Xxxxxxx Title Managing Director I-45 SPV LLC, as a Lender By /s/ Xxxx Xxxxxxxxx Name Xxxx Xxxxxxxxx Title Principal Exhibit A Notice of ~~Requirements~~ Payment Request Date: __________, 20__ To: [Name of ~~Law~~Lender] [Address] Attention: Reference is made to the First Lien Credit Agreement, dated as of ~~Buyer against Guarantors~~ February 17, 2017, by and among Turning Point Brands, Inc., a Delaware corporation (~~or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents~~“Turning Point”), and North Atlantic Trading Company, Inc., a Delaware corporation (~~v) on disposition~~ “NATC” and together with Turning Point, the “Borrowers”), the Guarantors party thereto, the Lenders party thereto, and Fifth Third Bank, an Ohio banking corporation, as Administrative Agent and L/C Issuer (as amended, restated, modified or supplemented from time to time, the “Credit Agreement”). Capitalized terms used herein and not defined herein have the meanings assigned to them in the Credit Agreement. [The Borrowers have failed to pay their Reimbursement Obligation in the amount of $__________. Your Revolver Percentage of the unpaid Reimbursement Obligation is $_____________] or [__________________________ has been required to return a payment by ~~Buyer~~ the Borrowers of ~~any property encumbered~~ a Reimbursement Obligation in the amount of $_______________. Your Revolver Percentage of the returned Reimbursement Obligation is $_______________.] Very truly yours, Fifth Third Bank, as L/C Issuer By Name Title Exhibit B Notice of Borrowing Date: __________, 20__ To: Fifth Third Bank, as Administrative Agent under, and the Lenders party to, the Credit Agreement described below Ladies and Gentlemen: Reference is made to the First Lien Credit Agreement, dated as of February 17, 2017, by ~~any Purchased Assets~~and among Turning Point Brands, ~~Pledged Collateral~~ Inc., a Delaware corporation (“Turning Point”), and North Atlantic Trading Company, Inc., a Delaware corporation (“NATC” and together with Turning Point, the “Borrowers”), the Guarantors party thereto, the Lenders party thereto, and Fifth Third Bank, an Ohio banking corporation, as Administrative Agent and L/C Issuer (as amended, restated, modified or ~~any collateral~~supplemented from time to time, ~~property or security~~ the “Credit Agreement”). Capitalized terms used herein and not defined herein have the meanings assigned to them in the Credit Agreement. The undersigned, as agent for the ~~Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally liable for any deficiency.~~Borrowers, hereby gives you notice irrevocably, pursuant to Section 2.5 of the Credit Agreement, of the Borrowing specified below:

Appears in 1 contract

Samples: Credit Agreement (Turning Point Brands, Inc.)

Joint and Several Obligations. ~~(a) At all times when there is more than one Guarantor~~ Each and every representation, warranty, covenant and agreement made by any of the Borrowers, hereunder and under ~~this Guaranty~~the Loan Documents, ~~each Guarantor hereby acknowledges and agrees that (i) each Guarantor~~ shall be ~~jointly~~ joint and ~~severally liable~~ several, whether or not so expressed, and such obligations of the Borrowers shall not be subject to ~~Buyer to~~ any counterclaim, setoff, recoupment or defense based upon any claim any one of the ~~maximum extent permitted by Requirements of Law for all Guarantor Liabilities~~Borrowers may have against the other Borrowers or the Lenders or the Agent or the Issuing Bank, ~~(ii) the liability of each Guarantor (A) shall be absolute and unconditional~~ and shall remain in full force and effect (or be reinstated) until the Guaranteed Indebtedness shall have been fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration of any applicable preference or similar period pursuant to any Insolvency Law, or at law or in equity, without ~~any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by Buyer~~regard to, and ~~(B) until such payment has been made and such obligations satisfied,~~ shall not be ~~discharged~~released, ~~affected~~discharged or in any way affected by any circumstance or condition affecting the other Borrowers, ~~modified~~ including, without limitation (a) any waiver, consent, extension, renewal, indulgence or ~~impaired on~~ other action or inaction under or in respect of this Agreement or any other Loan Document, or any agreement or other document related thereto with respect to the ~~occurrence from time to time~~ other Borrowers, or any exercise or nonexercise of any ~~event~~right, ~~including~~ remedy, power or privilege under or in respect to any of such agreement or instrument with respect to the ~~following~~other Borrowers, ~~whether~~ or not with notice to or the consent of each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement of the time for payment or performance or renewal or refinancing) of any of the Repurchase Obligations, Guarantor Liabilities, (2) the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer of any Purchased Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities (in each case, whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the Repurchase Obligations or the Guarantor Liabilities, whether by Buyer or in connection with any Insolvency Proceeding affecting any Guarantor or any other Person who, or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents or any part of the foregoing, or (5) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section 6.28, result in the release or discharge of any or all of Guarantors from the performance or observance of any of the ~~Guarantor Liabilities~~foregoing to the other Borrowers; (b) any invalidity, unenforceability, in whole or in part, of any such agreement or instrument with respect to the other Borrowers; (~~iii~~c) ~~Buyer shall not be required first~~ any failure on the part of the other Borrowers for any reason to ~~initiate~~ perform or comply with any ~~suit or to exhaust its remedies against any Guarantor~~ term or any such agreement or instrument; (d) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to the other ~~Person~~ Borrowers or their properties or creditors; or (e) any other occurrence whatsoever whether similar or dissimilar to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, ~~each Guarantor shall be and remain directly and unconditionally liable for all sums due~~ with respect to the other Borrowers. Each Borrower hereby waives any requirement of diligence or promptness on the part of the Lender, Agent, Issuing Bank in the enforcement of their rights under this ~~Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be~~ Agreement or under ~~no obligation to, make a similar demand on~~ any other ~~Guarantor~~Loan Document with respect to the obligations of itself or of the other Borrowers. Without limiting the foregoing, ~~and~~ any failure ~~by Buyer~~ to make any ~~such~~ demand upon, or to ~~collect~~ pursue or exhaust any ~~payments from any other Guarantor~~rights or remedies against, a Borrower, or any ~~release of any such other Guarantor~~delay with respect thereto, shall not ~~relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or~~ affect the ~~rights and remedies, express~~ obligations of the other Borrowers hereunder or ~~implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or~~ under any other Person obligated under the Repurchase Documents), and (v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally liable for any deficiencyLoan Document.

Appears in 1 contract

Samples: Credit Agreement (Learning Co Inc)

Joint and Several Obligations. (a) At all times ~~when~~ during which there is more than one (1) Guarantor under ~~this~~ the Guaranty, each Guarantor hereby acknowledges and agrees that (i) each Guarantor shall be jointly and severally liable to Buyer to the maximum extent permitted by Requirements of Law for all Guarantor Liabilities, (ii) the liability of each Guarantor shall be joint and several and the joint and several obligations of each Guarantor under the Repurchase Documents (Aa) (i) shall be absolute and unconditional and shall remain in full force and effect (or be reinstated) until all the ~~Guaranteed Indebtedness~~ Obligations shall have been ~~fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated~~ paid in full and the expiration of any applicable preference or similar period pursuant to any ~~Insolvency Law~~bankruptcy, insolvency, reorganization, moratorium or similar law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by the Buyer, and (Bii) until such payment has been ~~made and such obligations satisfied~~made, shall not be discharged, affected, modified or impaired on the ~~occurrence~~ happening from time to time of any event, ~~including~~ including, without limitation, any of the following, whether or not with notice to or the consent of ~~each Guarantor~~any Seller, any Guarantor or the Pledgor, (1A) the waiver, compromise, settlement, release, termination or amendment (~~including~~ including, without limitation, any extension or postponement of the time for payment or performance or renewal or refinancing) of any or all of the obligations or agreements of any Seller, any Guarantor or the Pledgor under the Repurchase ~~Obligations, Guarantor Liabilities~~Agreement or any Repurchase Document, (2B) the failure to give notice to ~~each~~ any Seller, any Guarantor or the Pledgor of the occurrence of an Event of ~~Default~~Default under any of the Repurchase Documents, (3C) the release, substitution or exchange by the Buyer of any or all of the Purchased ~~Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents~~ Items or the ~~Guarantor Liabilities~~ Equity Interests (in each case, whether with or without consideration) or the acceptance by the Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4D) the release of any Person primarily or secondarily liable for all or any part of the ~~Repurchase Obligations or the Guarantor Liabilities~~Obligations, whether by the Buyer or in connection with any ~~Insolvency Proceeding~~ voluntary or involuntary liquidation, dissolution, receivership, insolvency, bankruptcy, assignment for the benefit of creditors or similar event or proceeding affecting any ~~Guarantor~~ or all Sellers, any Guarantors, the Pledgor or any other Person who, or any of whose ~~property~~Property, shall at the time in question be obligated in respect of the ~~Repurchase~~ Obligations ~~or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents~~ or any part ~~of the foregoing~~thereof, or (5E) to the extent permitted by ~~Requirements of~~ Applicable Law, any other event, occurrence, action or circumstance that would, in the absence of this Section ~~6.28~~29, result in the release or discharge of any or all of Guarantors from the performance or observance of any of obligation, covenant or agreement contained in the Repurchase Documents; (b) each Guarantor ~~Liabilities, (iii)~~ expressly agrees that the Buyer shall not be required first to initiate any suit or to exhaust its remedies against any ~~Guarantor~~ Seller, any Guarantor, the Pledgor or any other Person to become liable, or against any of the Purchased ~~Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents~~ Items or the ~~Guarantor Liabilities~~Equity Interests, in order to enforce this Guaranty or the other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, each Guarantor shall be and remain directly and ~~unconditionally~~ primarily liable for all sums due under this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantor, and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor, the Repurchase Agreement or any ~~release~~ of any such other Guarantor, shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents), as and to the extent limited by this Guaranty; and, (vc) on disposition by the Buyer of any ~~property~~ Property encumbered by any Purchased ~~Assets~~Items or the Equity Interests, ~~Pledged Collateral or any collateral, property or security for the Guarantor Liabilities~~ each Guarantor shall be and shall remain jointly and severally liable for any deficiency, as and to the extent limited by this Guaranty.

Appears in 1 contract

Samples: Northstar Realty

Joint and Several Obligations. ~~(a) At~~ Subject to the limitations with respect to the obligation and liability of PLP Australian set forth in the Note, all ~~times when there is more than one Guarantor~~ obligations arising under this ~~Guaranty~~Agreement and the other the Loan Documents shall be joint and several, and each Borrower shall make payment upon the maturity of such obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted by the Lender to any Borrower, failure of the Lender to give any Borrower notice of borrowing or any other notice, any failure of the Lender to pursue or preserve its rights against any Borrower, the release by the Lender of any collateral (if any) now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by the Lender to the other Borrowers or any collateral for such Borrower’s obligations or the lack thereof. Each Borrower waives all suretyship defenses. Without limiting the generality of the foregoing, each ~~Guarantor~~ of the Borrowers hereby acknowledges and agrees that ~~(i)~~ any and all actions, inactions or omissions by any one or more, or all, of the Borrowers in connection with, related to or otherwise affecting this Agreement or any of the other Loan Documents are the obligations of, and inure to and are binding upon, each ~~Guarantor shall be~~ and all of the Borrowers, jointly and ~~severally liable to Buyer to~~ severally. Each covenant, agreement, obligation, representation and warranty of the ~~maximum extent permitted by Requirements of Law for all Guarantor Liabilities, (ii)~~ Borrowers contained herein constitutes the ~~liability~~ joint and several undertaking of each ~~Guarantor (A) shall~~ Borrower. PLP U.S. acknowledges that its obligations undertaken herein might be ~~absolute and unconditional and shall remain~~ construed to consist, at least in part, of the guaranty of obligations of the other Borrower and, in full ~~force~~ recognition of that fact, PLP U.S. consents and ~~effect (or be reinstated) until~~ agrees that the ~~Guaranteed Indebtedness shall have been fully~~ Lender may, at any time and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration of any applicable preference or similar period pursuant to any Insolvency Law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by Buyer, and (B) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the occurrence from time to ~~time of any event~~time, ~~including any of the following~~without notice or demand, whether before or ~~not with notice~~ after any actual or purported termination, repudiation or revocation of this Agreement by any Borrower, and without affecting the enforceability or continuing effectiveness hereof as to PLP U.S.: (a) supplement, restate, modify, amend, increase, decrease, extend, renew or ~~the consent of each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement of~~ otherwise change the time for payment or ~~performance~~ the terms of this Agreement or ~~renewal~~ any part thereof, including any increase or ~~refinancing~~decrease of the rate(s) of interest thereon; (b) supplement, restate, modify, amend, increase, decrease or waive, or enter into or give any agreement, approval or consent with respect to, this Agreement or any part thereof, or any of the ~~Repurchase Obligations~~Loan Documents, ~~Guarantor Liabilities~~or any condition, covenant, default, remedy, right, representation or term thereof or thereunder; (2c) accept partial payments; (d) release, reconvey, terminate, waive, abandon, fail to perfect, subordinate, exchange, substitute, transfer or enforce any security or guarantees, and apply any security and direct the ~~failure~~ order or manner of sale thereof as the Lender, in its sole and absolute discretion may determine; (e) release any person from any personal liability with respect to ~~give notice~~ this Agreement or any part thereof; (f) settle, release on terms satisfactory to ~~each Guarantor~~ the Lender or by operation of applicable law or otherwise liquidate or enforce any security or guaranty in any manner, consent to the transfer of any security and bid and purchase at any sale; or (g) consent to the merger, change or any other restructuring or termination of the ~~occurrence of an Event of Default, (3) the release, substitution~~ corporate or ~~exchange by Buyer~~ partnership existence of any ~~Purchased Asset~~Borrower, ~~Pledged Collateral~~ or any ~~collateral~~other person, ~~property~~ and correspondingly restructure the obligations evidenced hereby, and any such merger, change, restructuring or ~~security for~~ termination shall not affect the ~~Repurchase Documents~~ liability of any Borrower or the ~~Guarantor Liabilities (in each case~~continuing effectiveness hereof, ~~whether with or without consideration)~~ or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for enforceability hereof with respect to all or any part of the Repurchase Obligations or the Guarantor Liabilities, whether by Buyer or in connection with any Insolvency Proceeding affecting any Guarantor or any other Person who, or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations or the Guarantor Liabilitiesobligations evidenced hereby. Each Borrower states and acknowledges that: (w) pursuant to this Agreement, the ~~other duties and obligations under the Repurchase Documents or any part of the foregoing, or (5)~~ Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent ~~permitted by Requirements~~ possible as if they were merged into a single corporate entity and that this Agreement reflects the establishment of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section 6.28, result in the release or discharge of any or all of Guarantors from the performance or observance of any of the Guarantor Liabilities, (iii) Buyer shall credit facilities which would not otherwise be ~~required first~~ available to initiate any suit or to exhaust its remedies against any Guarantor or any other Person to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and such Borrower if each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, each Guarantor shall be and remain directly and unconditionally liable for all sums due under this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantor, and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor, or any release of any such other Guarantor, shall Borrower were not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents), and (v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally liable for payment of the obligations as set forth in this Section 11; (x) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (y) it is both a condition precedent to the obligations of the Lender hereunder and a desire of the Borrowers that each Borrower execute and deliver to the Lender this Agreement; and (z) the Borrowers have requested and bargained for the structure and terms of and security for, if any, the advances contemplated by this Agreement. Each Borrower agrees if such Borrower’s joint and several liability hereunder, or if any ~~deficiency~~liens securing such joint and several liability, would, but for the application of this Section 11, be unenforceable under applicable law, such joint and several liability and each such lien shall be valid and enforceable to the maximum extent that would not cause such joint and several liability or such lien to be unenforceable under applicable law, and such joint and several liability and such lien shall be deemed to have been automatically amended accordingly at all relevant times. To the extent that any Borrower shall, under this Agreement as a joint and several obligor, repay any of the obligations constituting a Loan made to another Borrower hereunder or other obligations arising under this Agreement or the other Loan Documents incurred directly and primarily by any other Borrower (an “Accommodation Payment”), then the Borrower making such Accommodation Payment shall be entitled to contribution and indemnification from, and, be reimbursed by, each of the other Borrowers in an amount, for each of such other Borrowers, equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Borrower’s “Allocable Amount” (as defined below) and the denominator of which is the sum of the Allocable Amounts of all of the Borrowers. As of any date of determination, the “Allocable Amount” of each Borrower shall be equal to the maximum amount of liability for Accommodation Payments which could be asserted against such Borrower hereunder without (A) rendering such Borrower “insolvent” within the meaning of Section 101(31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (B) leaving such Borrower with unreasonably small capital or assets, within the meaning of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, Section 4 of the UFTA, or (C) leaving such Borrower unable to pay its debts as they become due within the meaning of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA. All rights and claims of contribution, indemnification and reimbursement under this Section shall be subordinate in right of payment to the prior payment in full of each Loan. The provisions of this Section shall, to the extent expressly inconsistent with any provision in any Loan Document, supersede such inconsistent provision.

Appears in 1 contract

Samples: Loan Agreement (Preformed Line Products Co)

Joint and Several Obligations. ~~(a) At all times when there~~ Each Borrower is ~~more than one Guarantor~~ accepting joint and several liability hereunder and under the other Loan Documents, the Secured Hedge Agreements and the Secured Treasury Management Agreements in consideration of the financial accommodation to be provided by the Lenders, the L/C Issuers, any Agent, Arranger, the 2020 Incremental Lead Arrangers, the 2021 Incremental Lead Arrangers or Lender or any Affiliate of any of the foregoing and the Hedge Banks under this ~~Guaranty~~Agreement, ~~each Guarantor hereby acknowledges~~ the other Loan Documents, the Secured Hedge Agreements and ~~agrees that (i) each Guarantor shall be~~ the Secured Treasury Management Agreements, for the mutual benefit, directly and indirectly, of the other Borrower and in consideration of the undertakings of the other Borrower to accept joint and several liability for such Borrower. Each Borrower jointly and severally ~~liable to Buyer~~ hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrower with respect to the ~~maximum~~ payment and performance of all of the Obligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction between them. If and to the extent that any Borrower shall fail to make any payment with respect to any Obligation as and when due or to perform any Obligation in accordance with the terms thereof, then in each such event, the other Borrower will make such payment with respect to, or perform, such Obligation. The obligations of each Borrower under the provisions of this Section 11.22 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever. Except as otherwise expressly provided herein, each Borrower hereby waives, to the extent permitted by ~~Requirements~~ applicable law, notice of ~~Law for all Guarantor Liabilities~~acceptance of its joint and several liability. Except as otherwise expressly provided herein, ~~(ii)~~ each Borrower hereby waives, to the liability of each Guarantor (A) shall be absolute and unconditional and shall remain in full force and effect (or be reinstated) until the Guaranteed Indebtedness shall have been fully and indefeasibly paidextent permitted by law, ~~the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration~~ notice of any ~~applicable preference~~ Loan made under this Agreement, notice of occurrence of any Default or ~~similar period pursuant to~~ Event of Default or of any ~~Insolvency Law~~demand for any payment under this Agreement, notice of any action at any time taken or ~~at law~~ omitted by any Lender under or in ~~equity, without any claim having been made before the expiration~~ respect of such period asserting an interest in all or any part of any payment(s) received by Buyer, and (B) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any of the ~~following~~Obligations, ~~whether or not~~ any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Agreement. Each Borrower hereby assents to, and waives notice of, to or the ~~consent of each Guarantor~~extent permitted by applicable law, ~~(1) the waiver, compromise, settlement, release, termination or amendment (including~~ any extension or postponement of the time for the payment of any Obligation, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by any Lender at any time or times in respect of any default by the other Borrower in the performance or ~~renewal~~ satisfaction of any term, covenant, condition or ~~refinancing)~~ provision of this Agreement, any and all other indulgences whatsoever by any Lender in respect of any of the ~~Repurchase~~ Obligations, ~~Guarantor Liabilities~~and the taking, ~~(2) the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release~~addition, substitution or ~~exchange by Buyer~~ release, in whole or in part, at any time or times, of any ~~Purchased Asset, Pledged Collateral or any collateral, property or~~ security for ~~the Repurchase Documents~~ any Obligation or the ~~Guarantor Liabilities (~~addition, substitution or release, in ~~each case~~whole or in part, whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the ~~Repurchase Obligations or~~ other Borrower. Without limiting the Guarantor Liabilities, whether by Buyer or in connection with any Insolvency Proceeding affecting any Guarantor or any other Person who, or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents or any part of the foregoing, or (5) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section 6.28, result in the release or discharge of any or all of Guarantors from the performance or observance of any of the Guarantor Liabilities, (iii) Buyer shall not be required first to initiate any suit or to exhaust its remedies against any Guarantor or any other Person to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any generality of the foregoing, each ~~Guarantor shall be and remain directly and unconditionally liable~~ Borrower assents to any other action or delay in acting or failure to act on the part of any Lender, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with the applicable laws or regulations thereunder which might, but for ~~all sums due~~ the provisions of this Section 11.22, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this ~~Guaranty~~Section 11.22, ~~(iv) when making~~ it being the intention of each Borrower that, so long as any ~~demand~~ Obligation remains unsatisfied, the obligations of such Borrower under this Section 11.22 shall not be discharged except by performance or payment and then only to the extent of such performance or payment. The obligations of each Borrower under this Section 11.22 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Borrower or any Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any Borrower or any Lender. The provisions of this Section 11.22 are made solely for the benefit of the Administrative Agent and the other Secured Parties and their respective successors and assigns, and may be enforced by any such Person from time to time against any ~~Guarantor, Buyer may, but shall be under no obligation to, make a similar demand~~ Borrower as often as occasion therefor may arise and without requirement on the part of the Administrative Agent or any other ~~Guarantor, and~~ Secured Party first to marshal any ~~failure by Buyer to make any such demand~~ of its claims or to ~~collect~~ exercise any ~~payments from~~ of its rights against the other Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other ~~Guarantor~~source or means of obtaining payment of any Obligation or to elect any other remedy. If at any time, any payment, or any ~~release of any such other Guarantor~~part thereof, ~~shall not relieve any Guarantor~~ made in respect of ~~which a demand~~ any Obligation, is rescinded or ~~collection is not made~~ must otherwise be restored or ~~Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect~~ returned by the ~~rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor~~ Administrative Agent or any other ~~Person obligated~~ Secured Party upon the insolvency, bankruptcy or reorganization of any Borrower, or otherwise, the provisions of this Section 11.22 will forthwith be reinstated in effect, as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any other Loan Document, to the extent the joint and several obligations of any Borrower shall be adjudicated to be invalid or unenforceable for any reason (including because of any applicable state, provincial or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal, state or provincial and including, without limitation, Title 11 of the ~~Repurchase Documents~~United States Code, as now constituted or hereafter amended, or any other Debtor Relief Laws), after taking into account, among other things, such Borrower’s right of contribution and ~~(v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities~~ indemnification from each ~~Guarantor shall be and shall remain jointly and severally liable for any deficiency~~other Loan Party under applicable law.

Appears in 1 contract

Samples: Credit Agreement (APi Group Corp)

Joint and Several Obligations. ~~(a) At all times when there is more than one Guarantor under this Guaranty,~~ Each of the Sellers and Buyer hereby acknowledge and agree that the Original Sellers are each ~~Guarantor hereby acknowledges and agrees that (i) each Guarantor shall be~~ jointly and severally liable to Buyer for all of their and the Additional Sellers’ respective representations, warranties and covenants hereunder and under the Repurchase Agreement. The Original Sellers hereby unconditionally and irrevocably guarantee to the ~~maximum extent permitted~~ Buyer the prompt and complete payment and performance by ~~Requirements~~ the Additional Sellers when due (whether at the stated maturity, by acceleration or otherwise) of ~~Law~~ their Obligations hereunder. Each Original Seller waives any and all notice of the creation, renewal, extension or accrual of any of the Additional Sellers’ Obligations hereunder and notice of or proof of reliance by the Buyer upon this guaranty or acceptance of this guaranty; the Additional Sellers’ Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this guaranty; and all dealings between the Original Sellers or the Additional Sellers, on the one hand, and the Buyer, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this guaranty. Each Original Seller waives diligence, presentment, protest, demand for ~~all Guarantor Liabilities~~payment and notice of default or nonpayment to or upon the Additional Sellers or this guaranty with respect to the Additional Sellers’ Obligations. This guaranty shall be construed as a continuing, absolute and unconditional guarantee of payment without regard to (i) the validity or enforceability of the Repurchase Agreement, the other Program Agreements, any of the Additional Sellers’ Obligations or any collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Buyer, (ii) ~~the liability~~ any defense, set-off or counterclaim (other than a defense of ~~each Guarantor (A~~payment or performance) ~~shall~~ which may at any time be ~~absolute and unconditional and shall remain in full force and effect (~~available to or be ~~reinstated) until~~ asserted by the ~~Guaranteed Indebtedness shall have been fully and indefeasibly paid,~~ Additional Sellers against the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration of any applicable preference or similar period pursuant to any Insolvency LawBuyer, or ~~at law~~ (iii) any other circumstance whatsoever (with or ~~in equity,~~ without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by Buyer, and (B) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any of the following, whether or not with notice to or ~~the consent of each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement~~ knowledge of the ~~time for payment~~ Additional Sellers or ~~performance~~ the Original Sellers) which constitutes, or ~~renewal~~ might be construed to constitute, an equitable or ~~refinancing) of any~~ legal discharge of the ~~Repurchase~~ Additional Sellers for their Obligations, ~~Guarantor Liabilities, (2) the failure to give notice to each Guarantor~~ or of the ~~occurrence of an Event of Default~~Original Sellers under this guaranty, ~~(3) the release, substitution~~ in bankruptcy or ~~exchange by Buyer of any Purchased Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities (~~in ~~each case, whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of~~ any other ~~collateral or source of repayment or any nonperfection or other impairment of collateral, (4)~~ instance. When pursuing its rights and remedies hereunder against the release of any Person primarily or secondarily liable for all or any part of the Repurchase Obligations or the Guarantor Liabilities, whether by Buyer or in connection with any Insolvency Proceeding affecting any Guarantor or any other Person who, or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations or the Guarantor LiabilitiesOriginal Sellers, the other duties and obligations under the Repurchase Documents or any part of the foregoing, or (5) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section 6.28, result in the release or discharge of any or all of Guarantors from the performance or observance of any of the Guarantor Liabilities, (iii) Buyer shall not be required first to initiate any suit or to exhaust its remedies against any Guarantor or any other Person to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, each Guarantor shall be and remain directly and unconditionally liable for all sums due under this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no ~~obligation to~~obligation, ~~make a similar demand on~~ to pursue such rights and remedies that they may have against the Additional Sellers or any other ~~Guarantor~~Person or against any collateral security or guarantee for the Additional Sellers’ Obligations or any right of offset with respect thereto, and any failure by the Buyer to ~~make any~~ pursue such ~~demand~~ other rights or remedies or to collect any payments from Additional Sellers or any such other ~~Guarantor~~Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Original Sellers or any such other ~~Guarantor~~Person or any such collateral security, guarantee or right of offset, shall not relieve the Original Sellers of any ~~Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities~~ liability hereunder, and shall not impair or affect the rights and remedies, ~~express~~ whether express, implied or ~~implied, or~~ available as a matter of ~~Requirements of Law~~law, of the Buyer against ~~Guarantors (or~~ the Original Sellers. This guaranty shall remain in full force and effect and be binding in accordance with and to the extent of ~~any Guarantor against another Guarantor or~~ its terms upon the Original Sellers and their successors and assigns thereof, and shall inure to the benefit of the Buyer, and successors, indorsees, transferees and assigns, until all of each Additional Seller~~, Pledgor or any other Person obligated~~ ’s Obligations and the obligations of each Original Seller under this guaranty and the Repurchase ~~Documents)~~Agreement shall have been satisfied by payment in full, ~~and (v) on disposition by Buyer~~ notwithstanding that from time to time during the term of the Repurchase Agreement the Additional Sellers may be free from any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally liable for any deficiencyObligations.

Appears in 1 contract

Samples: Master Repurchase Agreement (New Century Financial Corp)

Joint and Several Obligations. Each permitted subtenant or assignee shall assume all obligations of Tenant under this Lease with respect to the Premises, or such portion thereof as may be covered by the sublease entered into by such party, and, if the party executing this Lease (“Original Tenant”) is in default under this Lease (beyond applicable notice and cure periods), such permitted subtenant or assignee shall, if Landlord so elects, make direct payment to Landlord of the Rent in the amount set forth in the sublease or assignment, unless otherwise agreed in writing by the parties thereto, and perform all of the terms, covenants, conditions, and agreements herein contained on Tenant’s part to be performed with respect to the Premises or such subleased space, as the case may be. No Transfer shall be valid and no transferee shall take possession of the Premises or any part thereof unless, within ten (10) days after the execution of the documentary evidence thereof, Tenant shall deliver to Landlord a duly executed duplicate original of the Transfer instrument that (a) ~~At all times when there is more than one Guarantor under this Guaranty, each Guarantor hereby acknowledges and agrees~~ provides that ~~(i) each Guarantor shall be jointly and severally liable to Buyer~~ the transferee assumes Tenant’s obligations for the payment of Rent to the ~~maximum~~ extent ~~permitted by Requirements~~ set forth in the sublease or assignment (or the allocable portion thereof, in the case of ~~Law~~ a sublease of a portion of the Premises) and for ~~all Guarantor Liabilities~~the full and faithful observance and performance of the covenants, terms and conditions contained herein, applicable to the Premises in the event of an assignment or applicable to the subleased space in the event of a sublease, (iib) provides that the ~~liability~~ transferee will, at Landlord’s election, attorn directly to Landlord if Landlord will recognize the sublease or assignment, as the case may be, and not disturb the subtenant’s or assignee’s, as the case may be, right to possession of ~~each Guarantor (A) shall be absolute and unconditional and shall remain~~ the Premises in ~~full force and effect (or be reinstated) until~~ the ~~Guaranteed Indebtedness shall have been fully and indefeasibly paid,~~ event Tenant’s Lease is terminated for any reason on the ~~Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged,~~ terms set forth in the ~~Repurchase Documents have been terminated and the expiration~~ instrument of any applicable preference or similar period pursuant to any Insolvency Law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by Buyertransfer, and (Bc) ~~until~~ contains such ~~payment has been made and~~ other non-financial assurances as is then customarily required by Xxxxxxxx’s lenders, the form for which will be provided to Tenant on request. The failure or refusal of a transferee to execute such ~~obligations satisfied,~~ an instrument of assumption shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any of the following, whether or not with notice to or the consent of each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement of the time for payment or performance or renewal or refinancing) of any of the Repurchase Obligations, Guarantor Liabilities, (2) the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer of any Purchased Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities (in each case, whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the Repurchase Obligations or the Guarantor Liabilities, whether by Buyer or in connection with any Insolvency Proceeding affecting any Guarantor or any other Person who, or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents or any part of the foregoing, or (5) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section 6.28, result in the release or discharge the transferee from its obligations set forth above. Notwithstanding anything contained herein to the contrary, Tenant shall remain fully liable for the performance of ~~any or~~ all of ~~Guarantors from~~ the ~~performance~~ obligations of Tenant hereunder and no Transfer shall release or ~~observance of any of the Guarantor Liabilities, (iii) Buyer shall not be required first to initiate any suit or to exhaust its remedies against any Guarantor~~ discharge Tenant or any other Person to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, each Guarantor shall be and remain directly and unconditionally liable for all sums due guarantor from liability under this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantor, and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor, or any release of any such other Guarantor, shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents), and (v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally liable for any deficiencyLease.

Appears in 1 contract

Samples: Office Lease (Fitbit Inc)

Joint and Several Obligations. (a) At all times ~~when~~ during which there is more than one ~~Guarantor~~ (1) Seller under ~~this Guaranty~~the Repurchase Documents, each Guarantor hereby acknowledges and agrees that (i) each Guarantor shall be jointly and severally liable to Buyer to the maximum extent permitted by Requirements of Law for all Guarantor Liabilities, (ii) the liability of each ~~Guarantor~~ Seller shall be joint and several and the joint and several obligations of each Seller under the Repurchase Documents (Aa) (i) shall be absolute and unconditional and shall remain in full force and effect (or be reinstated) until all the ~~Guaranteed Indebtedness~~ Obligations shall have been ~~fully and indefeasibly paid, the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated~~ paid in full and the expiration of any applicable preference or similar period pursuant to any ~~Insolvency Law~~bankruptcy, insolvency, reorganization, moratorium or similar law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by ~~Buyer~~the Deal Agent as agent for the Secured Parties, and (Bii) until such payment has been ~~made and such obligations satisfied~~made, shall not be discharged, affected, modified or impaired on the ~~occurrence~~ happening from time to time of any event, ~~including~~ including, without limitation, any of the following, whether or not with notice to or the consent of ~~each Guarantor~~any Seller, any Guarantor or the Pledgor, (1A) the waiver, compromise, settlement, release, termination or amendment (~~including~~ including, without limitation, any extension or postponement of the time for payment or performance or renewal or refinancing) of any or all of the obligations or agreements of any Seller, any Guarantor or the Pledgor under this Agreement or any Repurchase ~~Obligations, Guarantor Liabilities~~Document, (2B) the failure to give notice to ~~each~~ any Seller, any Guarantor or the Pledgor of the occurrence of an Event of ~~Default~~Default under any of the Repurchase Documents, (3C) the release, substitution or exchange by ~~Buyer~~ the Deal Agent as agent for the Secured Parties of any or all of the Purchased ~~Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents~~ Items or the ~~Guarantor Liabilities~~ Equity Interests (in each case, whether with or without consideration) or the acceptance by ~~Buyer~~ the Deal Agent as agent for the Secured Parties of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4D) the release of any Person primarily or secondarily liable for all or any part of the ~~Repurchase Obligations or the Guarantor Liabilities~~Obligations, whether by ~~Buyer~~ the Deal Agent as agent for the Secured Parties or in connection with any ~~Insolvency Proceeding~~ voluntary or involuntary liquidation, dissolution, receivership, insolvency, bankruptcy, assignment for the benefit of creditors or similar event or proceeding affecting any ~~Guarantor~~ or all Sellers, any or all Guarantors, the Pledgor or any other Person who, or any of whose ~~property~~Property, shall at the time in question be obligated in respect of the ~~Repurchase~~ Obligations ~~or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents~~ or any part ~~of the foregoing~~thereof, or (5E) to the extent permitted by ~~Requirements of~~ Applicable Law, any other event, occurrence, action or circumstance that would, in the absence of this Section ~~6.28~~13.24, result in the release or discharge of any or all of ~~Guarantors~~ the Sellers from the performance or observance of any of obligation, covenant or agreement contained in the ~~Guarantor Liabilities,~~ Repurchase Documents; (~~iii~~b) ~~Buyer~~ each Seller expressly agrees that the Deal Agent as agent for the Secured Parties shall not be required first to initiate any suit or to exhaust its remedies against any ~~Guarantor~~ Seller, any Guarantor, the Pledgor or any other Person to become liable, or against any of the Purchased ~~Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents~~ Items or the ~~Guarantor Liabilities~~Equity Interests, in order to enforce ~~this Guaranty or other~~ the Repurchase Documents and each ~~Guarantor~~ Seller expressly agrees that, notwithstanding the occurrence of any of the foregoing, each ~~Guarantor~~ Seller shall be and remain directly and ~~unconditionally~~ primarily liable for all sums due under this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantor, and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor, Agreement or any ~~release~~ of any such other Guarantor, shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents), as and to the extent limited by the Repurchase Documents; and, (vc) on disposition by ~~Buyer~~ the Deal Agent as agent for the Secured Parties of any ~~property~~ Property encumbered by any Purchased ~~Assets~~Items, ~~Pledged Collateral or any collateral, property or security for the Guarantor Liabilities~~ each ~~Guarantor~~ Seller shall be and shall remain jointly and severally liable for any deficiency, as and to the extent limited by the Repurchase Documents.

Appears in 1 contract

Samples: Master Repurchase Agreement (Arbor Realty Trust Inc)

Joint and Several Obligations. ~~(a) At all times when there~~ Notwithstanding anything to the contrary herein, each of the Aggregator Borrower and Co-Borrower is ~~more than one Guarantor~~ accepting joint and several liability hereunder and under the other Loan Documents, the agreements in respect of Secured Cash Management Obligations and Other Secured Obligations and the agreements in respect of Secured Swap Obligations in consideration of the financial accommodation to be provided by the Lenders, the Issuing Banks, any Agent, Lead Arranger or Lender or any Affiliate of any of the foregoing under this ~~Guaranty~~Agreement, the other Loan Documents, the agreements in respect of Secured Cash Management Obligations and Other Secured Obligations and the agreements in respect of Secured Swap Obligations, for the mutual benefit, directly and indirectly, of the Borrower and in consideration of the undertakings of each ~~Guarantor hereby acknowledges~~ Borrower to accept joint and ~~agrees that (i) each Guarantor shall be~~ several liability for the Borrowers. Each Borrower jointly and severally ~~liable to Buyer~~ hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with each other Borrower with respect to the ~~maximum~~ payment and performance of all of the Loan Document Obligations, it being the intention of the parties hereto that all the Loan Document Obligations shall be the joint and several obligations of each Borrower without preferences or distinction between them. If and to the extent that either Borrower shall fail to make any payment with respect to any Loan Document Obligation as and when due or to perform any Loan Document Obligation in accordance with the terms thereof, then in each such event, the other Borrower will make such payment with respect to, or perform, such Loan Document Obligation. The obligations of each Borrower under the provisions of this Section 9.23 constitute full recourse obligations of each Borrower, enforceable against it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever. Except as otherwise expressly provided herein, each Borrower hereby waives, to the extent permitted by applicable Requirements of ~~Law for all Guarantor Liabilities~~Law, ~~(ii)~~ notice of acceptance of its joint and several liability. Except as otherwise expressly provided herein, each Borrower hereby waives, to the liability of each Guarantor (A) shall be absolute and unconditional and shall remain in full force and effect (or be reinstated) until the Guaranteed Indebtedness shall have been fully and indefeasibly paidextent permitted by law, ~~the Guarantor Liabilities shall have been fully and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration~~ notice of any ~~applicable preference~~ Loan made under this Agreement, notice of occurrence of any Default or ~~similar period pursuant to~~ Event of Default or of any ~~Insolvency Law~~demand for any payment under this Agreement, notice of any action at any time taken or ~~at law~~ omitted by any Lender under or in ~~equity, without any claim having been made before the expiration~~ respect of such period asserting an interest in all or any part of any payment(s) received by Buyer, and (B) until such payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the occurrence from time to time of any event, including any of the ~~following~~Loan Document Obligations, ~~whether or not~~ any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Agreement. Each Borrower hereby, to the extent permitted by applicable Requirements of Law, assents to and waives notice ~~to or the consent~~ of ~~each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment (including~~ any extension or postponement of the time for the payment of any Loan Document Obligation, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by any Lender at any time or times in respect of any default by each Borrower in the performance or ~~renewal~~ satisfaction of any term, covenant, condition or ~~refinancing)~~ provision of this Agreement, any and all other indulgences whatsoever by any Lender in respect of any of the ~~Repurchase~~ Loan Document Obligations, ~~Guarantor Liabilities~~and the taking, ~~(2) the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release~~addition, substitution or ~~exchange by Buyer~~ release, in whole or in part, at any time or times, of any ~~Purchased Asset, Pledged Collateral or any collateral, property or~~ security for ~~the Repurchase Documents~~ any Loan Document Obligation or the ~~Guarantor Liabilities (~~addition, substitution or release, in each case, whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the Repurchase Obligations or the Guarantor Liabilities, whether by Buyer whole or in ~~connection with any Insolvency Proceeding affecting any Guarantor or any other Person who~~part, ~~or any~~ of ~~whose property, shall at~~ each Borrower. Without limiting the time in question be obligated in respect of the Repurchase Obligations or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents or any part of the foregoing, or (5) to the extent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section 6.28, result in the release or discharge of any or all of Guarantors from the performance or observance of any of the Guarantor Liabilities, (iii) Buyer shall not be required first to initiate any suit or to exhaust its remedies against any Guarantor or any other Person to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any generality of the foregoing, each ~~Guarantor shall be and remain directly and unconditionally liable~~ Borrower assents to any other action or delay in acting or failure to act on the part of any Lender, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with the applicable laws or regulations thereunder which might, but for ~~all sums due~~ the provisions of this Section 9.23, afford grounds for terminating, discharging or relieving each Borrower, in whole or in part, from any of its obligations under this ~~Guaranty~~Section 9.23, ~~(iv) when making~~ it being the intention of each Borrower that, so long as any ~~demand hereunder against~~ Loan Document Obligation remains unsatisfied, the obligations of each Borrower under this Section 9.23 shall not be discharged except by performance or payment and then only to the extent of such performance or payment. The obligations of each Borrower under this Section 9.23 shall not be diminished or rendered unenforceable by any ~~Guarantor~~winding up, ~~Buyer may~~reorganization, ~~but shall be under no obligation to~~arrangement, ~~make a~~ liquidation, reconstruction or similar ~~demand on~~ proceeding with respect to any other ~~Guarantor~~Borrower or any Lender. The joint and several liability of each Borrower hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any Borrower or any Lender. The provisions of this Section 9.23 are made solely for the benefit of the Administrative Agent and the other Secured Parties and their respective successors and assigns, and ~~any failure~~ may be enforced by ~~Buyer to make~~ any such ~~demand~~ Person from time to time against each Borrower as often as occasion therefor may arise and without requirement on the part of the Administrative Agent or any other Secured Party first to marshal any of its claims or to ~~collect~~ exercise any ~~payments from~~ of its rights against each Borrower or to exhaust any remedies available to it against each Borrower or to resort to any other ~~Guarantor~~source or means of obtaining payment of any Loan Document Obligation or to elect any other remedy. If at any time, any payment, or any ~~release of any such other Guarantor~~part thereof, ~~shall not relieve any Guarantor~~ made in respect of ~~which a demand~~ any Loan Document Obligation is rescinded or ~~collection is not made~~ must otherwise be restored or ~~Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect~~ returned by the ~~rights and remedies, express or implied, or as a matter of Requirements of Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor~~ Administrative Agent or any other ~~Person obligated under~~ Secured Party upon the ~~Repurchase Documents)~~insolvency, ~~and (v) on disposition by Buyer~~ bankruptcy or reorganization of ~~any property encumbered by any Purchased Assets~~each Borrower, ~~Pledged Collateral~~ or ~~any collateral~~otherwise, ~~property or security for~~ the ~~Guarantor Liabilities each Guarantor shall~~ provisions of this Section 9.23 will forthwith be ~~and shall remain jointly and severally liable for any deficiency~~reinstated in effect, as though such payment had not been made.

Appears in 1 contract

Samples: First Lien Credit Agreement (Clarios International Inc.)

Joint and Several Obligations. Each Borrower (aother than GKF as and to the extent expressly provided below) ~~At all times when there~~ is ~~more than one Guarantor~~ accepting joint and several liability hereunder in consideration of the financial accommodations to be provided by Lender under this ~~Guaranty~~Agreement, for the mutual benefit, directly and indirectly, of each other Borrower and in consideration of the undertakings of each other Borrower to accept joint and several liability for such Borrower. Each Borrower (other than GKF as and to the extent expressly provided below) hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with each other Borrower with respect to the payment and performance of all of the Obligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each Borrower (other than GKF as and to the extent expressly provided below) without preferences or distinction between any of them. If and to the extent that any such Borrower shall fail to make any payment with respect to any such Obligation as and when due or to perform any Obligation in accordance with the terms thereof, then in each such event, each ~~Guarantor~~ other Borrower will make such payment with respect to, or perform, such Obligation. The obligations of each Borrower (other than GKF as and to the extent expressly provided below) under the provisions of this Section 11.20 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever. Notwithstanding anything in the initial paragraph of this Section 11.20 to the contrary, GKF’s obligations hereunder, and indebtedness and liabilities of GKF evidenced hereby ~~acknowledges~~ and ~~agrees that (i) each Guarantor~~ by the other Loan Documents, shall be ~~jointly and severally liable to Buyer~~ expressly limited to the ~~maximum extent permitted by Requirements~~ GKF Obligations. In this respect, GKF’s obligations hereunder and under the other Loan Documents are several but not joint in that GKF shall have no obligation to pay, nor any indebtedness or liabilities in respect of, the Obligations to the extent, but solely to the extent, not constituting GKF Obligations. GKF and each other Borrower hereby acknowledge and agree that they each shall have joint and several liability as to the GKF Obligations, and that the initial paragraph of ~~Law for all Guarantor Liabilities, (ii) the liability of each Guarantor (A)~~ this Section 11.20 shall ~~be absolute and unconditional and shall remain~~ apply in full ~~force~~ to each Borrower, including GKF, in respect of the GKF Obligations. The provisions of this Section 11.20 are made solely for the benefit of Lender and ~~effect (or be reinstated) until the Guaranteed Indebtedness shall have been fully~~ their Related Persons and ~~indefeasibly paid, the Guarantor Liabilities shall have been fully~~ successors and indefeasibly paid, performed and discharged, the Repurchase Documents have been terminated and the expiration of any applicable preference or similar period pursuant to any Insolvency Law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payment(s) received by Buyerassigns, and ~~(B) until~~ may be enforced by any such ~~payment has been made and such obligations satisfied, shall not be discharged, affected, modified or impaired on the occurrence~~ Person from time to time against any Borrower as often as occasion therefor may arise and without requirement on the part of Lender first to marshal any of its claims or to exercise any of its rights against any other Borrower or to exhaust any remedies available to it against any other Borrower or to resort to any other source or means of obtaining payment of any ~~event, including any of the following, whether~~ Obligation or ~~not with notice~~ to or the consent of each Guarantor, (1) the waiver, compromise, settlement, release, termination or amendment (including any extension or postponement of the time for payment or performance or renewal or refinancing) of any of the Repurchase Obligations, Guarantor Liabilities, (2) the failure to give notice to each Guarantor of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer of any Purchased Asset, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities (in each case, whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of elect any other ~~collateral or source of repayment or~~ remedy. If at any ~~nonperfection or other impairment of collateral~~time, ~~(4) the release of~~ any ~~Person primarily or secondarily liable for all~~ payment, or any part thereof, made in respect of any Obligation, is rescinded or must otherwise be restored or returned by Lender upon the ~~Repurchase Obligations~~ insolvency, bankruptcy or reorganization of any Borrower, or otherwise, the ~~Guarantor Liabilities~~provisions of this Section 11.20 will forthwith be reinstated in effect, ~~whether by Buyer~~ as though such payment had not been made. SMRH:0000-0000-0000.14 -52- Notwithstanding any provision to the contrary contained herein or in ~~connection with~~ any ~~Insolvency Proceeding affecting~~ other Loan Document, to the extent the joint and several obligations of any ~~Guarantor~~ Borrower shall be adjudicated to be invalid or unenforceable for any reason (including because of any applicable state or federal Law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable Law (whether federal or state and including the Bankruptcy Code or any other Person who, or any of whose property, shall at the time in question be obligated in respect of the Repurchase Obligations or the Guarantor Liabilities, the other duties and obligations under the Repurchase Documents or any part of the foregoing, or (5) to the extent permitted by Requirements of Debtor Relief Law, ~~any~~ after taking into account, among other ~~event~~things, ~~occurrence, action or circumstance that would, in the absence~~ such Borrower’s right of ~~this Section 6.28, result in the release or discharge of any or all of Guarantors~~ contribution and indemnification from ~~the performance or observance of any of the Guarantor Liabilities, (iii) Buyer shall not be required first to initiate any suit or to exhaust its remedies against any Guarantor or any~~ each other Person to become liable, or against any of the Purchased Assets, Pledged Collateral or any collateral, property or security for the Repurchase Documents or the Guarantor Liabilities, in order to enforce this Guaranty or other Repurchase Documents and each Guarantor expressly agrees that, notwithstanding the occurrence of any of the foregoing, each Guarantor shall be and remain directly and unconditionally liable for all sums due Loan Party under this Guaranty, (iv) when making any demand hereunder against any Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on any other Guarantor, and any failure by Buyer to make any such demand or to collect any payments from any other Guarantor, or any release of any such other Guarantor, shall not relieve any Guarantor in respect of which a demand or collection is not made or Guarantors not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of Requirements of applicable Law, of Buyer against Guarantors (or of any Guarantor against another Guarantor or Seller, Pledgor or any other Person obligated under the Repurchase Documents), and (v) on disposition by Buyer of any property encumbered by any Purchased Assets, Pledged Collateral or any collateral, property or security for the Guarantor Liabilities each Guarantor shall be and shall remain jointly and severally liable for any deficiency.

Appears in 1 contract

Samples: Credit Agreement (American Shared Hospital Services)

Common use of Joint and Several Obligations Clause in Contracts