Limitation on Subsidiary Guarantor Liability Each Subsidiary Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Subsidiary Guarantee of such Subsidiary Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Subsidiary Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Subsidiary Guarantors hereby irrevocably agree that the obligations of such Subsidiary Guarantor will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Subsidiary Guarantor that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Subsidiary Guarantor in respect of the obligations of such other Subsidiary Guarantor under this Article Ten, result in the obligations of such Subsidiary Guarantor under its Subsidiary Guarantee not constituting a fraudulent transfer or conveyance. Each Subsidiary Guarantor that makes a payment for distribution under its Subsidiary Guarantee is entitled to a contribution from each other Subsidiary Guarantor in a pro rata amount based on the adjusted net assets of each Subsidiary Guarantor.
Guaranty Agreement FOR VALUE RECEIVED, the receipt and sufficiency of which are hereby acknowledged, and in consideration of the agreement of BC Holdings, LLC (the "Developer") to permit deferral of the $574,000 due from Catoosa Senior Village, L.P., a Georgia limited partnership ("Debtor") to the Developer, the undersigned Guarantor(s), hereby unconditionally guarantees the full and prompt payment when due, whether by acceleration or otherwise of that certain Developer Fee from Debtor to the Developer, evidenced by the Development Fee Agreement dated the even date herewith, and incorporated herein by this reference. The foregoing described debt is referred to hereinafter as the "Liabilities" or "Liability." The undersigned further agree to pay all expenses paid or incurred by the Debtor or Developer in endeavoring to collect the Liabilities, or any part thereof, and in enforcing the Liabilities or this Guaranty Agreement (including reasonable attorneys' fees if collected or enforced by law or through an attorney-at-law). The undersigned hereby represents and warrants that the extension of credit or other financial accommodations by the Developer to Debtor will be to the interest and advantage of the undersigned, and acknowledges that this Guaranty Agreement is a substantial inducement to the Developer to extend credit to Debtor and that the Developer would not otherwise extend credit to Debtor. Debtor or Developer may, from time to time, without notice to or consent of the undersigned, (a) retain or obtain a security interest in any property to secure any of the Liabilities or any obligation hereunder, (b) retain or obtain the primary or secondary liability of any party or parties, in addition to the undersigned, with respect to any of the Liabilities and (c) resort to the undersigned for payment of any of the Liabilities, whether or not the Debtor or Developer shall have resorted to any property securing any of the Liabilities or any obligation hereunder or shall have preceded against any other party primarily or secondarily liable on any of the Liabilities. Debtor and Developer must mutually agree to (a) extend or renew for any period this Agreement (whether or not longer than the original period) or alter any of the Liabilities, (b) release or compromise any Liability of the undersigned hereunder or any Liability of any other party or parties primarily or secondarily liable on any of the Liabilities, or (c) release, compromise or subordinate its title or security interest, or any part thereof, if any, in all or any property now or hereafter securing any of the Liabilities or any obligation hereunder, and permit any substitution or exchange for any such property,
Cross-Guaranty Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) 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;
(b) the absence of any action to enforce this Agreement (including this Section 12) or any other Loan Document or the waiver or consent by Agent and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Guaranty Provisions (a) In consideration of loans, advances or disbursements heretofore or hereafter granted by CoBank to the Borrowers pursuant to the CoBank Loan Agreement or otherwise and for other good and valuable consideration, the adequacy, sufficiency and receipt of which are hereby acknowledged, Guarantor hereby absolutely, unconditionally, irrevocably, completely and immediately guarantees the prompt payment of, when due, whether by acceleration or Continuing Guaranty/Knology Broadband, Inc. Loan No. ML0883T1 otherwise, and the prompt payment and performance of the CoBank Loan Agreement Obligations, subject to the provisions set forth herein. The liability of Guarantor hereunder shall not be reduced as a result of amounts collected pursuant to any other guaranty, but shall be determined with reference to the amount of CoBank Loan Agreement Obligations prior to collection from any party other than the Borrowers;
(b) Subject to the provisions set forth herein, Guarantor further agrees to pay to CoBank, upon demand, (i) all losses and reasonable costs and expenses, including, without limitation, reasonable attorneys' fees and expenses, incurred in attempting to cause the CoBank Loan Agreement Obligations to be paid, performed or otherwise satisfied or in attempting to protect or preserve any property, personal or real, securing the CoBank Loan Agreement Obligations and (ii) all losses and reasonable costs and expenses, including, without limitation, reasonable attorneys' fees and expenses, incurred in enforcing or endeavoring to enforce this Guaranty and any other CoBank Loan Document to which Guarantor is a party or in attempting to protect or preserve property pledged under any CoBank Loan Document to which Guarantor is a party;
(c) Subject to the provisions set forth herein, Guarantor expressly guarantees, within its maximum liability hereunder, any sum or sums which become due and owing to CoBank as a result of any order of a bankruptcy court which requires CoBank to turn over moneys paid by the Borrowers, Guarantor or any other person to CoBank on account of the CoBank Loan Agreement Obligations;
(d) Guarantor assents to all terms and agreements heretofore or hereafter made by the Borrowers, any of their subsidiaries or any other guarantor of the Borrowers with CoBank;
(e) Guarantor hereby consents to the following and agrees that its liability will not be affected or impaired by (i) the exchange, release or surrender of any collateral to the Borrowers or any other person, including any other guarantor, pledgor or grantor, or the waiver, release or subordination of any security interest, in whole or in part; (ii) the waiver or delay in the exercise of any of CoBank's rights or remedies against the Borrowers or any other person, including any other guarantor; (iii) the release of the Borrowers or any other person, including any other person guaranteeing any portion of the CoBank Loan Agreement Obligations; (iv) the renewal, extension or modification of the terms of any of the CoBank Loan Agreement Obligations or any instrument or agreement evidencing the same;
(f) Guarantor waives acceptance hereof, notice of acceptance hereof, and notice of acceleration of and intention to accelerate the CoBank Loan Agreement Obligations, and waives presentment, demand, protest, notice of dishonor, notice of default, notice of nonpayment or protest in relation to any instrument evidencing any of the CoBank Loan Agreement Obligations, and any other demands and notices required by law except as such waiver may be expressly prohibited by law;
(g) This is a guaranty of payment and performance and not of collection. Subject to the provisions set forth herein, the liability of Guarantor under this Guaranty shall be absolute, unconditional, direct, complete and immediate and shall not be contingent upon the pursuit of Continuing Guaranty/Knology Broadband, Inc. Loan No. ML0883T1 any remedies against the Borrowers or any other guarantor or person, nor against any security or lien available to CoBank, its successors, successors-in-title, endorsees or assigns. Guarantor waives any right to require that an action be brought against the Borrowers or any other person or to require that resort be had to any security. In the event of a default under the CoBank Loan Documents, or any of them, CoBank shall have the right to enforce its rights, powers and remedies under any of the CoBank Loan Documents, in any order, and all rights, powers and remedies available to CoBank in such event shall be nonexclusive and cumulative of all other rights, powers and remedies provided thereunder (including, without limitation, under the Companion Guaranty) or hereunder or by law or in equity. Accordingly, Guarantor hereby authorizes and empowers CoBank upon acceleration of the maturity of the Note or any other CoBank Loan Agreement Obligation, at its sole discretion, and without notice to Guarantor, to exercise any right or remedy which CoBank may have or any right or remedy hereinafter granted which CoBank may have as to any security, subject to the provisions set forth herein. Guarantor expressly waives any right to require any action on the part of CoBank to proceed to collect amounts due under the Note or any other CoBank Loan Agreement Obligation;
(h) Until the CoBank Loan Agreement Obligations are paid in full, Guarantor hereby subordinates any and all indebtedness of any Borrower now or hereafter owed to Guarantor to all CoBank Loan Agreement Obligations of the Borrowers to CoBank, and agrees with CoBank that, from and after the occurrence of a default or event of default under any of the CoBank Loan Documents and for so long as such default or event of default exists, Guarantor shall not demand or accept any payment of principal or interest from the Borrowers, shall not claim any offset or other reduction of Guarantor's liability hereunder because of any such indebtedness and shall not take any action to obtain any of the security for the CoBank Loan Agreement Obligations; provided, however, that, if CoBank so requests, such indebtedness shall be collected, enforced and received by Guarantor as trustee for CoBank and be paid over to CoBank on account of the CoBank Loan Agreement Obligations of the Borrowers to CoBank, but without reducing or affecting in any manner the liability of Guarantor under the other provisions of this Guaranty;
(i) Guarantor hereby authorizes CoBank, without notice to Guarantor, to apply all payments and credits received from the Borrowers or from any guarantor or realized from any security in such manner and in such priority as CoBank in its sole judgment shall see fit to the CoBank Loan Agreement Obligations which are the subject of this Guaranty;
(j) The liability of Guarantor under this Guaranty shall not in any manner be affected by reason of any action taken or not taken by CoBank, which action or inaction is consented and agreed to by Guarantor, nor by the partial or complete unenforceability or invalidity of any other guaranty (including, without limitation, under the Companion Guaranty) or surety agreement, pledge, assignment, or other security for any of the CoBank Loan Agreement Obligations. No delay in making demand on Guarantor for satisfaction of its liability hereunder shall prejudice CoBank's right to enforce such satisfaction. All of CoBank's rights and remedies shall be cumulative and any failure of CoBank to exercise any right hereunder shall not be construed as a waiver of the right to exercise the same or any other right at any time, and from time to time, thereafter; Continuing Guaranty/Knology Broadband, Inc. Loan No. ML0883T1
(k) This Guaranty shall be a continuing one and shall be binding upon Guarantor regardless of how long before or after the date hereof the CoBank Loan Agreement Obligations are incurred. This Guaranty shall remain in full force and effect until a written instrument of termination shall be executed and delivered by a duly authorized officer of CoBank. CoBank will only be obligated to execute such an instrument of termination if: (i) all CoBank Loan Agreement Obligations have been paid in full and (ii) CoBank has no further commitment or obligation to extend credit to the Borrowers. If so terminated, this Guaranty and Guarantor's obligations hereunder shall be automatically reinstated if at any time payment in whole or in part of any of the CoBank Loan Agreement Obligations is rescinded or restored to the Borrowers or other payor, or must be paid to any other person, upon the insolvency, bankruptcy, liquidation, dissolution or reorganization of the Borrowers or other payor, all as though such payment has not been made; and
(l) Until the CoBank Loan Agreement Obligations are paid finally and in full, or this Guaranty is released as provided herein, Guarantor hereby irrevocably waives any and all rights it may have to enforce any of CoBank's rights or remedies or participate in any security now or hereafter held by CoBank, and any and all such other rights of subrogation, reimbursement, contribution or indemnification against the Borrowers or any other person having any manner of liability for the Borrowers' obligations to CoBank, whether or not arising hereunder, by agreement, at law or in equity.
Release of Subsidiary Guarantors from Guarantee (a) Notwithstanding any other provisions of this Indenture, the Guarantee of any Subsidiary Guarantor may be released upon the terms and subject to the conditions set forth in Section 11.02(b) and in this Section 14.04. Provided that no Default shall have occurred and shall be continuing under this Indenture, the Guarantee incurred by a Subsidiary Guarantor pursuant to this Article XIV shall be unconditionally released and discharged (i) automatically upon (A) any sale, exchange or transfer, whether by way of merger or otherwise, to any Person that is not an Affiliate of the Partnership, of all of the Partnership’s direct or indirect limited partnership or other equity interests in such Subsidiary Guarantor (provided such sale, exchange or transfer is not prohibited by this Indenture) or (B) the merger of such Subsidiary Guarantor into either of the Issuers or any other Subsidiary Guarantor or the liquidation and dissolution of such Subsidiary Guarantor (in each case to the extent not prohibited by this Indenture) or (ii) upon the Issuers’ delivery of a written notice to the Trustee of the release or discharge of all guarantees by such Subsidiary Guarantor of any Debt of the Issuers other than obligations arising under this Indenture and any Debt Securities issued hereunder, except a discharge or release by or as a result of payment under such guarantees.
(b) The Trustee shall deliver an appropriate instrument evidencing any release of a Subsidiary Guarantor from the Guarantee upon receipt of a written request of the Issuers accompanied by an Officers’ Certificate and an Opinion of Counsel to the effect that the Subsidiary Guarantor is entitled to such release in accordance with the provisions of this Indenture. Any Subsidiary Guarantor not so released shall remain liable for the full amount of principal of (and premium, if any) and interest on the Debt Securities entitled to the benefits of the Guarantee as provided in this Indenture, subject to the limitations of Section 14.03.
Limitation on Guarantor Liability Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount that will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance.
Guaranty Each Guarantor hereby absolutely and unconditionally, jointly and severally guarantees, as primary obligor and as a guaranty of payment and performance and not merely as a guaranty of collection, prompt payment when due, whether at stated maturity, by required prepayment, upon acceleration, demand or otherwise, and at all times thereafter, of any and all Secured Obligations (for each Guarantor, subject to the proviso in this sentence, its “Guaranteed Obligations”); provided that (a) the Guaranteed Obligations of a Guarantor shall exclude any Excluded Swap Obligations with respect to such Guarantor and (b) the liability of each Guarantor individually with respect to this Guaranty shall be limited to an aggregate amount equal to the largest amount that would not render its obligations hereunder subject to avoidance under Section 548 of the Bankruptcy Code of the United States or any comparable provisions of any applicable state law. Without limiting the generality of the foregoing, the Guaranteed Obligations shall include any such indebtedness, obligations, and liabilities, or portion thereof, which may be or hereafter become unenforceable or compromised or shall be an allowed or disallowed claim under any proceeding or case commenced by or against any debtor under any Debtor Relief Laws. The Administrative Agent’s books and records showing the amount of the Obligations shall be admissible in evidence in any action or proceeding, and shall be binding upon each Guarantor, and conclusive for the purpose of establishing the amount of the Secured Obligations. This Guaranty shall not be affected by the genuineness, validity, regularity or enforceability of the Secured Obligations or any instrument or agreement evidencing any Secured Obligations, or by the existence, validity, enforceability, perfection, non-perfection or extent of any collateral therefor, or by any fact or circumstance relating to the Secured Obligations which might otherwise constitute a defense to the obligations of the Guarantors, or any of them, under this Guaranty, and each Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to any or all of the foregoing.
Limitation of Subsidiary Guarantor's Liability Each Subsidiary Guarantor and by its acceptance hereof each Holder of Securities hereby confirms that it is the intention of all such parties that the guarantee by such Subsidiary Guarantor pursuant to its Subsidiary Guarantee not constitute a fraudulent transfer or conveyance for purposes of any federal, state or foreign law. To effectuate the foregoing intention, the Holders of Securities and each Subsidiary Guarantor hereby irrevocably agree that the obligations of each Subsidiary Guarantor under its Subsidiary Guarantee shall be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Subsidiary Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Subsidiary Guarantor in respect of the obligations of such other Subsidiary Guarantor under its Subsidiary Guarantee, result in the obligations of such Subsidiary Guarantor under the Subsidiary Guarantee not constituting a fraudulent conveyance or fraudulent transfer under federal, state or foreign law.
Limited Guarantee Each Guarantor hereby guarantees, severally and not jointly, and not jointly and severally, to the Guaranteed Party, on the terms and subject to the conditions set forth herein, the due and punctual payment and performance of a portion of Parent’s or Merger Sub’s obligation to pay to the Guaranteed Party (a) the Parent Termination Fee pursuant to Section 8.4 of the Merger Agreement, (b) the indemnification and reimbursement obligations owing to the Company, its Subsidiaries and their respective Representatives under Section 6.19(i) of the Merger Agreement, and (c) damages for Fraud or Willful Breach by Parent or Merger Sub in accordance with and subject to Section 8.2(a) of the Merger Agreement (clauses (a), (b) and (c), collectively, the “Guaranteed Obligations”), on the terms and subject to the conditions set forth in the Merger Agreement and herein, in an amount equal to the percentage of the Maximum Aggregate Amount (as defined below) set forth opposite such Guarantor’s name on Exhibit A hereto (such amount with respect to each Guarantor is such Guarantor’s “Maximum Guarantor Amount”); provided that the maximum liability of each Guarantor hereunder shall not exceed such Guarantor’s Maximum Guarantor Amount and the maximum aggregate liability of the Guarantors hereunder shall not exceed $66,597,220.70 (the “Maximum Aggregate Amount”), it being understood and agreed that this Limited Guarantee may not be enforced without giving full and absolute effect to the Maximum Aggregate Amount and each Maximum Guarantor Amount. The Guaranteed Party hereby agrees that the Guarantors shall in no event be required to pay to any Person or Persons in the aggregate more than the Maximum Aggregate Amount (and that no Guarantor shall be required to pay to any Person or Persons in the aggregate more than such Guarantor’s Maximum Guarantor Amount) under, in respect of, or in connection with this Limited Guarantee or the Merger Agreement, and no Guarantor shall have any obligation or liability to any Person under this Limited Guarantee or the Merger Agreement other than as expressly set forth herein. Notwithstanding anything to the contrary contained in this Limited Guarantee or in the Merger Agreement, the Guaranteed Party hereby agrees that to the extent Parent and Merger Sub are relieved of all or any portion of the Guaranteed Obligations by satisfaction thereof on the terms and subject to the conditions set forth in the Merger Agreement or pursuant to any other agreement with the Guaranteed Party, each Guarantor shall be similarly relieved, to such extent, of its respective obligations under this Limited Guarantee.
Limited Guaranty Trinity hereby irrevocably and unconditionally guarantees for the benefit of each of the Owner Participant, the Owner Trustee, Trust Company, the Indenture Trustee, the Pass Through Trustee and the Policy Provider (each, together with their respective permitted successors and assigns, a "Guaranty Party") the full and punctual payment of all amounts payable by the Lessee under Sections 7.1 and 7.2 of this Agreement (all such obligations being hereinafter referred to as the "Guaranteed Obligations"). Upon failure by the Lessee to pay punctually or perform any Guaranteed Obligation, Trinity shall forthwith on demand pay the amount not so paid or perform the obligation not so performed in the manner specified in the Operative Agreements. All payments by Trinity under this guaranty shall be made on the same basis as payments by the Lessee under the Operative Agreements. This guaranty shall constitute a guaranty of punctual payment and not of collection, and Trinity specifically agrees that it shall not be necessary, and that Trinity shall not be entitled to require, before or as a condition of enforcing the liability of Trinity under this Section 11 or requiring payment or performance of the Guaranteed Obligations by Trinity hereunder, or at any time thereafter, that any Person: (a) file suit or proceed to obtain or assert a claim for personal judgment against Lessee or any other Person that may be liable for any Guaranteed Obligation; (b) make any other effort to obtain payment or performance of any Guaranteed Obligation from Lessee or any other Person that may be liable for such Guaranteed Obligation; (c) foreclose against or seek to realize upon any security now or hereafter existing for such Guaranteed Obligation; (d) exercise or assert any other right or remedy to which such Person is or be entitled in connection with any Guaranteed Obligation or any security or other guaranty therefor or (e) assert or file any claim against the assets of Lessee or any other Person liable for any Guaranteed Obligation.
