Nature of Guaranty. (a) Each Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by: (i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a party; (ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan Document; (iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or (iv) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments. (b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future. (c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 4 contracts
Samples: Credit Agreement (Family Dollar Stores Inc), Credit Agreement (Family Dollar Stores Inc), Credit Agreement (Family Dollar Stores Inc)
Nature of Guaranty. (a) Each Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(ia) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Guaranty, the Credit Loan Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower Borrower, any Subsidiary thereof or any Guarantor Affiliate thereof is or may become a party;
(iib) the absence of any action to enforce this Guaranty, the Credit Loan Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit Loan Agreement or any other Loan Document;
(iiic) the existence, value or condition of, or failure to perfect its Lien against, any security (including, without limitation, the Collateral) for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty);
(d) any structural change in, restructuring of or other similar change of the Borrower or any of its Subsidiaries; or
(ive) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of in Section 2.22(c) hereof, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.
Aggregate Commitment. To the extent permitted by Applicable Law, each Guarantor expressly waives all rights it may now or in the future have under any statute (bincluding, without limitation, North Carolina General Statutes Section 26-7, et seq. or similar law), or at law or in equity, or otherwise, to compel the Administrative Agent or any Lender to proceed in respect of the Guaranteed Obligations against the Borrower or any other party or against any security (including, without limitation, the Collateral) Each for or other guaranty of the payment and performance of the Guaranteed Obligations before proceeding against, or as a condition to proceeding against, such Guarantor. To the extent permitted by Applicable Law, each Guarantor represents, warrants further expressly waives and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets assert or defenses take advantage of any kind (other than defense based upon the defense failure of payment) the Administrative Agent or any Lender to commence an action in respect of the Guaranteed Obligations against the Administrative AgentBorrower, such Guarantor, any other guarantor or any other Person or any security (including, without limitation, the Lenders or Collateral) for the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees payment and acknowledges that performance of the Guaranteed Obligations. Each Guarantor agrees that any notice or directive given at any time to the Administrative Agent or any Lender which is inconsistent with the waivers in the preceding two sentences shall be null and void and may be ignored by the Administrative Agent or such Lender, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waivedand, in reliance upon addition, may not be pleaded or introduced as evidence in any litigation relating to this Guaranty for the reason that such pleading or introduction would be at variance with the written terms of this Guaranty, and all dealings between the Borrower and any of the Guarantors, on the one hand, and unless the Administrative Agent and the Lenders, on Required Lenders have specifically agreed otherwise in writing. The foregoing waivers are of the essence of the transaction contemplated by the Loan Agreement and the other handLoan Documents and, likewise shall be conclusively presumed but for this Guaranty and such waivers, the Administrative Agent and the Lenders would decline to have been had or consummated in reliance upon this Guarantyenter into the Loan Agreement and the other Loan Documents.
Appears in 4 contracts
Samples: Loan Agreement (Medcath Corp), Loan Agreement (Medcath Corp), Guaranty Agreement (Medcath Corp)
Nature of Guaranty. (a) Each The obligations, covenants, ------------------ agreements and duties of the Guarantor agrees that this Guaranty is a continuingshall remain in full force and effect until the Obligations are finally, unconditional guaranty indefeasibly and unconditionally paid and performed in full in accordance with the terms of payment and performance and not the Operative Documents and, to the maximum extent permitted by law, shall in no way be affected or impaired by reason of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or happening from time to time of any other Loan Document or any other agreementevent, document or instrument to which the Borrower or any Guarantor is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan Document;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the following, whether or not any such event shall have occurred without notice to or the consent of the Guarantor:
(a) the waiver, compromise, settlement, termination or other release of the performance or observance by the Guarantor or the Charterer of any or all of their respective agreements, covenants, terms or conditions contained in this Guaranty (other than Section 2.1 hereof), the Participation Agreement, the Charter and the other Operative Documents;
(b) any failure, omission, delay or lack on the part of the Beneficiaries to enforce, assert or exercise any right, power or remedy conferred on the Beneficiaries in the Participation Agreement, the Charter, the other Operative Documents or this Guaranty, or the inability of the Beneficiaries to enforce any provision of the Participation Agreement, the Charter, the other Operative Documents or this Guaranty for any reason, or any other act or omission on the part of the Beneficiaries;
(c) the transfer, assignment or mortgaging, or the purported transfer, assignment or mortgaging, of all or any part of the interest of the Charterer in the Vessel Interest or the Vessel or the invalidity, unenforceability or termination of the Participation Agreement, the Charter or any other Operative Document or any defect in the title of the Vessel or any part thereof or any loss of possession, use or operational control of the Vessel or any part thereof by the Charterer or any Permitted Subcharterer;
(d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Participation Agreement, the Charter, or any other Operative Document;
(e) the voluntary or involuntary liquidation, dissolution, sale of all or substantially all of the assets, marshalling of assets and liabilities, receivership, conservatorship, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceedings affecting the Charterer or any of its assets or any allegation or contest of the validity of this Guaranty, the Participation Agreement, the Charter or any other Operative Document in any such proceeding;
(f) the surrender or impairment of any security for the performance or guaranty)observance of any of the Obligations;
(g) any failure of the Guarantor or the Charterer to perform and observe any agreement or covenant, or to discharge any duty or obligation, arising out of or connected with this Guaranty, the Participation Agreement, the Charter or any other Operative Document or the occurrence or pendency of any Charter Default or Charter Event of Default or any proceedings or actions as a result of, or attendant upon, such Charter Default or Charter Event of Default;
(h) the inability of the Guarantor, the Beneficiaries or the Charterer to enforce any provision of this Guaranty, the Participation Agreement, the Charter or any other Operative Document for any reason;
(i) the failure to give notice to the Guarantor or the Charterer of the occurrence of an event of default under the terms and provisions of the Participation Agreement, the Charter or the other Operative Documents;
(j) the disposition by the Guarantor of any or all of its interest in any capital stock of the Charterer or any change, restructuring or termination of the corporate structure, ownership or existence of the Charterer;
(k) any set-off, counterclaim, reduction, or diminution of any Obligation, or any defense of any kind or nature whatsoever (other than performance) which the Guarantor or the Charterer may have or assert against the Beneficiaries; or
(ivl) any other action or circumstances which circumstance (other than performance) that might otherwise constitute a legal or equitable defense or discharge or defense of a guarantor or surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.
(b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject with respect to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the futureObligation.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 4 contracts
Samples: Guaranty (Mobil Corp), Guaranty (Mobil Corp), Guaranty (Mobil Corp)
Nature of Guaranty. (a) Each Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Loan Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Guarantor Subsidiary is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Loan Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit Loan Agreement or any other Loan Document;
(iii) the existence, value or condition of, or failure to perfect its any Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(iv) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit CommitmentsObligations.
(b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders Lender or the Borrower Borrower, whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the LendersLender, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 4 contracts
Samples: Guaranty Agreement (Afp Imaging Corp), Guaranty Agreement (Ucn Inc), Guaranty Agreement (Aftersoft Group)
Nature of Guaranty. (a) Each Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by, and each Guarantor hereby irrevocably waives, to the extent not prohibited by Applicable Law, any defenses to enforcement it may have (now or in the future) by reason of:
(i) the genuineness, legality, validity, regularity, enforceability or any future amendment of, or change in, or supplement to, the Credit Agreement, any other Loan Document, any Secured Cash Management Agreement or any other Loan Document Secured Hedge Agreement or any other agreement, document or instrument to which the Borrower Borrower, any Guarantor or any Guarantor of their respective Subsidiaries or Affiliates is or may become a party, (including any increase in the Secured Obligations resulting from any extension of additional credit or otherwise);
(ii) any action under or in respect of the Credit Agreement, any other Loan Document, any Secured Cash Management Agreement or any Secured Hedge Agreement in the exercise of any remedy, power or privilege contained therein or available to any of them at law, in equity or otherwise, or waiver or refraining from exercising any such remedies, powers or privileges (including any change in the time, place or manner of payment of, or in any other term of, the Obligations or any other obligation of any Credit Party under any Loan Document, or any rescission, waiver, amendment or other modification of any Loan Document or any other agreement, including any increase in the Secured Obligations resulting from any extension of additional credit or otherwise);
(iii) the absence of any action to enforce this Guaranty, the Credit Agreement, any other Loan Document, any Secured Cash Management Agreement or any other Loan Document Secured Hedge Agreement or the waiver or consent by the Administrative Agent or any Lender other Secured Party with respect to any of the provisions of this Guaranty, the Credit Agreement or Agreement, any other Loan Document, any Secured Cash Management Agreement or any Secured Hedge Agreement;
(iiiiv) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender other Secured Party in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or;
(ivv) any structural change in, restructuring of or other similar organizational change of the Borrower, any Guarantor, any other guarantors or any of their respective Subsidiaries or Affiliates;
(vi) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; or
(vii) any other circumstance (including, without limitation, any statute of limitations) or manner of administering the Loans or any existence of or reliance on any representation by any Secured Party that might vary the risk of any guarantor or otherwise operate as a defense available to, or a legal or equitable discharge of, any Credit Party or any other guarantor or surety; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations (other than (1) contingent indemnification obligations, (2) obligations and liabilities under Secured Cash Management Agreements or Secured Hedge Agreements as to which arrangements satisfactory to the applicable Cash Management Bank or Hedge Bank shall have been made and (3) Letters of Credit that have either been Cash Collateralized or as to which arrangements satisfactory to the Issuing Lender have been made) and the termination of the Revolving Credit Commitments.
(b) Each Guarantor represents, warrants and agrees that that, to the extent permitted by Applicable Law, the Guaranteed Obligations and its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of paymentpayment or performance) against the Administrative Agent, the Lenders other Secured Parties or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 among the Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lendersother Secured Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 3 contracts
Samples: Subsidiary Guaranty Agreement, Subsidiary Guaranty Agreement (Switch, Inc.), Subsidiary Guaranty Agreement (Switch, Inc.)
Nature of Guaranty. (a) Each Guarantor The US Borrower agrees that this US Borrower Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this US Borrower Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
by (ia) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit this Agreement or any other Loan Document or any other agreement, document or instrument to which the Canadian Borrower or any Guarantor is or may become a party;
, (iib) the absence of any action to enforce this US Borrower Guaranty, the Credit this Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this US Borrower Guaranty, the Credit this Agreement or any other Loan Document;
, (iiic) the existence, value or condition of, or failure to perfect its Lien a Lien, if any, against, any security for or other guaranty of the US Borrower Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
, (ivd) any structural change in, restructuring of or other similar change of the Canadian Borrower or any of its Subsidiaries or (e) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, US Borrower that its obligations under this US Borrower Guaranty shall not be discharged until the final and indefeasible payment and performancepayment, in full, of the US Borrower Guaranteed Obligations and the termination of the Revolving Credit Commitments.
. To the extent permitted by law, the US Borrower expressly waives all rights it may now or in the future have under any statute (b) Each Guarantor representsincluding, warrants without limitation, North Carolina General Statutes Section 26-7, et seq. or similar law), or at law or in equity, or otherwise, to compel the Administrative Agent or any Lender to proceed in respect of the US Borrower Guaranteed Obligations against the Canadian Borrower, any other guarantor or any other party or against any security for or other guaranty of the payment of the US Borrower Guaranteed Obligations before proceeding against, or as a condition to proceeding against, the US Borrower. To the extent permitted by law, the US Borrower further expressly waives and agrees not to assert or take advantage of any defense based upon the failure of the Administrative Agent or any Lender to commence an action in respect of the US Borrower Guaranteed Obligations against the Canadian Borrower, the US Borrower, any other guarantor or any other party or any security for the payment of the US Borrower Guaranteed Obligations. The US Borrower agrees that its obligations under this Guaranty are not any notice or directive given at any time to the Administrative Agent or any Lender which is inconsistent with the waivers in the preceding two sentences shall be null and shall void and may be ignored by the Administrative Agent or such Lender, and, in addition, may not be subject pleaded or introduced as evidence in any litigation relating to any counterclaims, offsets this US Borrower Guaranty for the reason that such pleading or defenses introduction would be at variance with the written terms of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the this US Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Guarantors, on the one hand, and unless the Administrative Agent and the LendersRequired Lenders have specifically agreed otherwise in writing. The foregoing waivers are of the essence of the transaction contemplated by the Loan Documents and, on but for this US Borrower Guaranty and such waivers, the other hand, likewise shall be conclusively presumed Administrative Agent and the Lenders would decline to have been had or consummated in reliance upon enter into this GuarantyAgreement.
Appears in 3 contracts
Samples: Credit Agreement (SCP Pool Corp), Credit Agreement (SCP Pool Corp), Credit Agreement (Pool Corp)
Nature of Guaranty. Guarantor hereby absolutely and unconditionally guarantees, as a guarantee of payment and not merely as a guarantee of collection, the due and punctual payment in full of (a) Each Guarantor agrees that this Guaranty is a continuingthe principal of, unconditional guaranty of payment and performance and not of collectionMake-Whole Amount, if any, and that its interest on (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), and any other amounts due under, the Notes when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), (b) all costs, attorneys’ fees and expenses incurred by any holder in connection with the collection or enforcement thereof, and (c) any other sums which may become due under the terms and provisions of the Notes, the Note Purchase Agreement or any other instrument referred to therein, (all such obligations under this described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). Issuer’s books and records showing the amount of the Guaranteed Obligations shall be admissible in evidence in any action or proceeding, and shall be binding upon Guarantor and conclusive for the purpose of establishing the amount of the Guaranteed Obligations. This Guaranty shall not be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) affected by the genuineness, validity, regularity, or enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan Document;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any actioninstrument or agreement evidencing any Guaranteed Obligations, or by any fact or circumstance relating to the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(iv) any other action or circumstances Guaranteed Obligations which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence obligations of Section 2.2, its obligations Guarantor under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.
(b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 3 contracts
Samples: Note Purchase Agreement (STAG Industrial, Inc.), Note Purchase Agreement (STAG Industrial, Inc.), Note Purchase Agreement (STAG Industrial, Inc.)
Nature of Guaranty. (a) Each Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Guarantor Subsidiary thereof is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender Secured Party with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan Document;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender Secured Party in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(iv) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of in Section 2.22(b) hereof, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.
(b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders Secured Parties or the Borrower whether now existing or which may arise in the futurehereafter arising.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the LendersSecured Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 3 contracts
Samples: Guaranty Agreement (Jack in the Box Inc /New/), Guaranty Agreement (Jack in the Box Inc /New/), Guaranty Agreement (Jack in the Box Inc /New/)
Nature of Guaranty. (a) Each The obligations, covenants, agreements and ------------------ duties of the Guarantor agrees that this Guaranty is a continuinghereunder shall remain in full force and effect until the Obligations are finally, unconditional guaranty indefeasibly and unconditionally paid and performed in full in accordance with the terms of payment and performance and not the Operative Documents and, to the maximum extent permitted by law, shall in no way be affected or impaired by reason of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or happening from time to time of any other Loan Document or any other agreementevent, document or instrument to which the Borrower or any Guarantor is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan Document;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the following, whether or not any such event shall have occurred without notice to or the consent of the Guarantor:
(a) the waiver, compromise, settlement, termination or other release of the performance or observance by the Guarantor or the Charterer of any or all of their respective agreements, covenants, terms or conditions contained in this Guaranty (other than Section 2.1 hereof), the Participation Agreement, the Charter and the other Operative Documents;
(b) any failure, omission, delay or lack on the part of the Beneficiaries to enforce, assert or exercise any right, power or remedy conferred on the Beneficiaries in the Participation Agreement, the Charter, the other Operative Documents or this Guaranty, or the inability of the Beneficiaries to enforce any provision of the Participation Agreement, the Charter, the other Operative Documents or this Guaranty for any reason, or any other act or omission on the part of the Beneficiaries;
(c) the transfer, assignment or mortgaging, or the purported transfer, assignment or mortgaging, of all or any part of the interest of the Charterer in the Vessel Interest or the Vessel or the invalidity, unenforceability or termination of the Participation Agreement, the Charter or any other Operative Document or any defect in the title of the Vessel or any part thereof or any loss of possession, use or operational control of the Vessel or any part thereof by the Charterer or any Permitted Subcharterer;
(d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Participation Agreement, the Charter, or any other Operative Document;
(e) the voluntary or involuntary liquidation, dissolution, sale of all or substantially all of the assets, marshalling of assets and liabilities, receivership, conservatorship, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceedings affecting the Charterer or any of its assets or any allegation or contest of the validity of this Guaranty, the Participation Agreement, the Charter or any other Operative Document in any such proceeding;
(f) the surrender or impairment of any security for the performance or guaranty)observance of any of the Obligations;
(g) any failure of the Guarantor or the Charterer to perform and observe any agreement or covenant, or to discharge any duty or obligation, arising out of or connected with this Guaranty, the Participation Agreement, the Charter or any other Operative Document or the occurrence or pendency of any Charter Default or Charter Event of Default or any proceedings or actions as a result of, or attendant upon, such Charter Default or Charter Event of Default;
(h) the inability of the Guarantor, the Beneficiaries or the Charterer to enforce any provision of this Guaranty, the Participation Agreement, the Charter or any other Operative Document for any reason;
(i) the failure to give notice to the Guarantor or the Charterer of the occurrence of an event of default under the terms and provisions of the Participation Agreement, the Charter or the other Operative Documents;
(j) the disposition by the Guarantor of any or all of its interest in any capital stock of the Charterer or any change, restructuring or termination of the corporate structure, ownership or existence of the Charterer;
(k) any set-off, counterclaim, reduction, or diminution of any Obligation, or any defense of any kind or nature whatsoever (other than performance) which the Guarantor or the Charterer may have or assert against the Beneficiaries; or
(ivl) any other action or circumstances which circumstance (other than performance) that might otherwise constitute a legal or equitable defense or discharge or defense of a guarantor or surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.
(b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject with respect to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the futureObligation.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 2 contracts
Samples: Guaranty (Mobil Corp), Guaranty (Mobil Corp)
Nature of Guaranty. (a) Each The Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, legality, validity, regularity, enforceability or any future amendment of, or change in, the Credit or supplement to, this Agreement or any other Loan Document Document, or any other agreement, document or instrument to which the Borrower Borrowers, the Guarantor or any Guarantor of its respective Subsidiaries or Affiliates is or may become a party, (including any increase in the Obligations resulting from any extension of additional credit or otherwise);
(ii) any action under or in respect of this Agreement or any other Loan Document in the exercise of any remedy, power or privilege contained therein or available to any of them at law, in equity or otherwise, or waiver or refraining from exercising any such remedies, power or privileges (including any manner of sale, disposition or any application of any sums by whomever paid or however realized to any Guaranteed Obligations owing by the Borrowers or the Guarantor to the Administrative Agent or any other Credit Party in such manner as the Administrative Agent or any other Credit Party shall determine in its reasonable discretion);
(iii) the absence of any action to enforce this Guaranty, the Credit Agreement this Agreement, or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender other Credit Party with respect to any of the provisions of this Guaranty, the Credit this Agreement or any other Loan Document;
(iiiiv) the existence, value or condition of, or failure to perfect its Lien against, any security for for, if any, or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender other Credit Party in respect of such security security, if any, or guaranty (including, without limitation, the release of any such security or guaranty);
(v) any structural change in, restructuring of or other similar organizational change of the Borrowers, the Guarantor, any other guarantors or any of their respective Subsidiaries or Affiliates; or
(ivvi) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; ;
(vii) it being agreed by each the Guarantor that, subject to the first sentence of Section 2.29.02, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations (other than contingent indemnification obligations) and the termination of the Revolving Credit Commitments.
(b) Each The Guarantor represents, warrants and agrees that the Guaranteed Obligations and its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders other Credit Parties or the Borrower Borrowers whether now existing or which may arise in the future.
(c) Each The Guarantor hereby agrees and acknowledges that the Guaranteed 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 among the Borrower Borrowers and any of the GuarantorsGuarantor, on the one hand, and the Administrative Agent and the Lendersother Credit Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 2 contracts
Samples: Credit Agreement (Cabot Corp), Credit Agreement (Cabot Corp)
Nature of Guaranty. (a) Each Guarantor agrees that this This Guaranty Agreement is a continuingcomplete and continuing one. The obligations, unconditional guaranty covenants, agreements and duties of payment and performance and not of collection, and that its obligations each Guarantor under this Guaranty Agreement shall be primaryjoint and several with Obligor and each other Guarantor, shall be irrevocable, absolute and unconditional, irrespective ofshall remain in full force and effect until payment in full of the Secured Obligations, and unaffected by:
(i) shall in no way be affected or impaired by reason of the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or happening from time to time of any other Loan Document or any other agreementevent, document or instrument to which the Borrower or any Guarantor is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan Document;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the following, whether or not any such event shall have occurred without notice to or the consent of any Guarantor:
(a) the waiver, compromise, settlement, termination or other release of the performance or observance by any Guarantor, or any other Person liable or to become liable for repayment of the Loan Agreement or the Notes or any or all of such Guarantor’s or other Person’s agreements, covenants, terms or conditions contained in this Guaranty Agreement;
(b) the extension of the time for payment of any of the Secured Obligations or of the time for performance of any obligations, covenants or agreements under or arising out of this Guaranty Agreement or the Loan Documents;
(c) any failure, omission, delay or lack on the part of Administrative Agent and/or Lenders to enforce, assert or exercise any right, power or remedy conferred on Administrative Agent and/or Lenders in the Loan Agreement, the Notes, any Loan Documents or this Guaranty Agreement, or the inability of Administrative Agent and/or Lenders to enforce any provision of this Guaranty Agreement, the Loan Agreement, the Notes or any of the Loan Documents for any reason, or any other act or omission on the part of Administrative Agent, Lenders or any of the holders from time to time of the Notes;
(d) the transfer, assignment or mortgaging, or the purported transfer, assignment or mortgaging, of all or any part of the interest of Obligor or any Guarantor in the Property or any failure of title with respect to the interest of Obligor or any Guarantor in the Property or the invalidity, unenforceability or termination of the Loan Agreement;
(e) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in this Guaranty Agreement, the Loan Agreement, the Notes or the Loan Documents;
(f) the voluntary or involuntary liquidation, dissolution, sale of all or substantially all of the assets, marshalling of assets and liabilities, receivership, conservatorship, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting Obligor or any Guarantor or any of their respective assets or any allegation or contest of the validity of this Guaranty Agreement, the Loan Agreement, the Notes or the Loan Documents;
(g) the release of any Obligor or any Guarantor (or any other Person liable to perform or observe any agreements, covenants, duties or obligations of any of them) from the performance or observance of any of the agreements, covenants, terms or conditions contained in the Loan Agreement, the Notes, any of the Loan Documents or this Guaranty Agreement;
(h) the surrender or impairment of any security for the performance or observance of any of the agreements, covenants, terms and conditions contained in the Loan Agreement, the Notes, the Loan Documents or this Guaranty Agreement;
(i) any failure of Obligor or any Guarantor to perform and observe any agreement or covenant, or to discharge any duty or obligation, arising out of or connected with the Loan Agreement, the Notes, this Guaranty Agreement or the Loan Documents or the occurrence or pendency of any Default or Event of Default thereunder or any proceedings or actions as a result of, or attendant upon, such security Event of Default;
(j) the invalidity or guaranty)unenforceability of any Loan Party’s obligations under any Loan Document or any other agreement or instrument relating thereto;
(k) the taking or the omission of any of the actions referred to in the Loan Agreement, the Notes, any Loan Documents or of any actions under this Guaranty Agreement; or
(ivl) the failure to give notice to any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense Guarantor of the occurrence of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, its obligations default under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, Agreement or of the Guaranteed Obligations occurrence of an Event of Default under the terms and the termination provisions of the Revolving Credit Commitments.
(b) Each Guarantor representsLoan Agreement, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to the Notes or any counterclaimsof the Loan Documents. No set-off, offsets counterclaim, reduction, or defenses diminution of any obligation, or any defense of any kind or nature (other than performance by a Guarantor of such Guarantor’s obligations hereunder), which Obligor may have or assert against a Guarantor or which a Guarantor may have or assert against Obligor or which Obligor may have or assert against Administrative Agent and/or any Lender shall be available hereunder to any Guarantor against Administrative Agent and/or any Lender. In the defense event that, after payment in full of payment) against the Secured Obligations, any payment or payments received thereon are voided or rescinded, whether as a preference in bankruptcy or otherwise, the amount of any such payment shall be deemed to be Secured Obligations covered by this Guaranty Agreement, this Guaranty Agreement shall be immediately deemed revived as to such amounts and Guarantor shall remain liable for the payment of all such amounts, and shall indemnify Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed Obligationseach Lender, and any of themeach Related Party from such amounts, shall conclusively be deemed together with collection costs and other sums due pursuant to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Guaranty, and all dealings between the Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this GuarantyGuaranty Agreement.
Appears in 2 contracts
Samples: Guaranty Agreement (Omega Protein Corp), Guaranty Agreement (Omega Protein Corp)
Nature of Guaranty. (a) Each Guarantor agrees that this Guaranty is hereby absolutely and unconditionally guarantees, jointly and severally, as a continuing, unconditional guaranty guarantee of payment and performance and not merely as a guarantee of collection, prompt payment when due, whether at stated maturity, upon acceleration or otherwise, and that its obligations at all times thereafter, of any and all existing and future Obligations including, without limitation, all indebtedness and liabilities of every kind, nature and character, direct or indirect, absolute or contingent, liquidated or unliquidated, voluntary or involuntary, of Borrower to the Credit Parties arising under this the Credit Agreement, the other Loan Documents, and the Secured Hedge Agreements (including all renewals, extensions, modifications, amendments, and restatements thereof and all costs, attorneys’ fees and expenses incurred by any Credit Party in connection with the collection or enforcement thereof) (collectively, the “Guaranteed Obligations”) and hereby consents to any extension of the Maturity Date pursuant to Section 2.14 of the Credit Agreement or otherwise. Administrative Agent’s books and records showing the amount of the Guaranteed Obligations under the Loan Documents shall, absent manifest error, 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 such Guaranteed Obligations. The amount of any Guaranteed Obligations under any Secured Hedge Agreement shall be determined in accordance with the terms of such Secured Hedge Agreement. This Guaranty shall not be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) affected by the genuineness, validity, regularity, or enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan Document;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any actioninstrument or agreement evidencing any Guaranteed Obligations, or by the absence existence, validity, enforceability, perfection, or extent of any actioncollateral therefor, or by any fact or circumstance relating to the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(iv) any other action or circumstances Guaranteed Obligations which might otherwise constitute a legal or equitable discharge or defense to the obligations of a surety or guarantor; it being agreed by any Guarantor under this Guaranty. The obligations of each Guarantor that, hereunder shall be limited to an aggregate amount equal to the largest amount that would not render its obligations hereunder subject to the first sentence of avoidance under Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, 548 of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.
Bankruptcy Code (bTitle 11, United States Code) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to or any counterclaims, offsets or defenses comparable provisions of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the futureapplicable state law.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 2 contracts
Samples: Credit Agreement (Ashford Hospitality Prime, Inc.), Credit Agreement (Ashford Hospitality Prime, Inc.)
Nature of Guaranty. (a) Each Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the any Borrower or any other Guarantor or any of their respective Subsidiaries or Affiliates is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or Hedging Agreement, or the waiver or consent by the Administrative Agent or any Lender other Secured Party with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan DocumentDocument or Hedging Agreement;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender other Secured Party in respect of such security or guaranty (including, without limitation, including the release of any such security or guaranty);
(iv) any structural change in, restructuring of or other similar change of any Borrower, any other Guarantor or any of their respective Subsidiaries; or
(ivv) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each such Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until except as provided under the final indefeasible payment terms of Section 2.10 and performance, in full, Section 5.17 of the Guaranteed Obligations and the termination of the Revolving Credit Commitmentsthis Guaranty.
(b) Each Guarantor hereby represents, warrants and agrees that the Guaranteed Obligations and any other obligations hereunder are not, and agrees that its obligations under this Guaranty are not and shall not be be, subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders Secured Parties or the Borrower Borrowers whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower Borrowers and any of the Guarantors, on the one hand, and the Administrative Agent and the Lendersany other Secured Party, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 2 contracts
Samples: Guaranty Agreement (Broadview Networks Holdings Inc), Guaranty Agreement (Broadview Networks Holdings Inc)
Nature of Guaranty. (a) Each Guarantor The U.S. Borrower agrees that this U.S. Borrower Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this U.S. Borrower Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit this Agreement or any other Loan Document or any other agreement, document or instrument to which the U.S. Borrower, the Borrower or any Guarantor of their respective Subsidiaries or Affiliates is or may become a party;
(ii) the absence of any action to enforce this U.S. Borrower Guaranty, the Credit Agreement or this Agreement, any other Loan Document or any Hedging Agreement, or the waiver or consent by the Administrative Agent or any Lender other Secured Party with respect to any of the provisions of this U.S. Borrower Guaranty, the Credit Agreement or this Agreement, any other Loan DocumentDocument or any Hedging Agreement;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Bowater Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender other Secured Party in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty);
(iv) any structural change in, restructuring of or other similar change of the U.S. Borrower, the Borrower or any of their respective Subsidiaries; or
(ivv) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, U.S. Borrower that its obligations under this U.S. Borrower Guaranty shall not be discharged until except as under the final indefeasible payment and performance, in full, terms of the Guaranteed Obligations and the termination of the Revolving Credit CommitmentsSection 11.6 below.
(b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 2 contracts
Samples: Credit Agreement (AbitibiBowater Inc.), Credit Agreement (Bowater Inc)
Nature of Guaranty. (a) Each The Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
by (ia) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit this Agreement or any other Loan Document or any other agreement, document or instrument to which the any such Borrower or any Guarantor is or may become a party;
, (iib) the absence of any action to enforce this Guaranty, the Credit this Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit Agreement (other than an express written waiver of any provision of this Article XI pursuant to Section 14.11) or any other Loan Document;
, (iiic) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
) or (ivd) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each the Guarantor that, subject to the first sentence of Section 2.2, that its obligations under this Guaranty shall not be discharged until the final and indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.
. The Guarantor expressly waives all rights it may now or in the future have under any statute (b) Each including without limitation North Carolina General Statutes Section 26-7, et seq. or similar law), or at law or in equity, or otherwise, to compel the Administrative Agent or any Lender to proceed in respect of the Guaranteed Obligations against any such Borrower or any other party or against any security for or other guaranty of the payment and performance of the Guaranteed Obligations before proceeding against, or as a condition to proceeding against, the Guarantor. The Guarantor represents, warrants further expressly waives and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets assert or defenses take advantage of any kind (other than defense based upon the defense failure of payment) against the Administrative AgentAgent or any Lender to commence an action in respect of the Guaranteed Obligations against any such Borrower, the Lenders Guarantor or any other party or any security for the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees payment and acknowledges that performance of the Guaranteed Obligations. The Guarantor agrees that any notice or directive given at any time to the Administrative Agent or any Lender which is inconsistent with the waivers in the preceding two sentences shall be null and void and may be ignored by the Administrative Agent or Lender, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waivedand, in reliance upon addition, may not be pleaded or introduced as evidence in any litigation relating to this Guaranty for the reason that such pleading or introduction would be at variance with the written terms of this Guaranty, and all dealings between the Borrower and any of the Guarantors, on the one hand, and unless the Administrative Agent and the LendersRequired Lenders have specifically agreed otherwise in writing. The foregoing waivers are of the essence of the transaction contemplated by the Loan Documents and, on but for this Guaranty and such waivers, the other hand, likewise shall be conclusively presumed Administrative Agent and Lenders would decline to have been had or consummated in reliance upon enter into this GuarantyAgreement.
Appears in 2 contracts
Samples: Credit Agreement (Knology Inc), Credit Agreement (Knology Holdings Inc /Ga)
Nature of Guaranty. (a) Each Guarantor hereby acknowledges and agrees that this Guaranty (a) is a continuing, unconditional guaranty of payment and performance and not only of collection, collection and that its obligations under this Guaranty Guarantor is liable hereunder as a primary obligor, (b) shall only be primarydeemed discharged after the indefeasible satisfaction in full of the Debt, absolute and unconditional(c) shall not be reduced, irrespective ofreleased, and unaffected by:
discharged, satisfied or otherwise impacted in connection with (i) the genuinenessany act or occurrence that might, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of but for the provisions of this Guarantyhereof, the Credit Agreement or any other Loan Document;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(iv) any other action or circumstances which might otherwise constitute be deemed a legal or equitable reduction, satisfaction, discharge or defense release and/or (ii) Lender’s enforcement of a surety remedies under the Loan Documents and (d) shall survive the foregoing and shall not merge with any resulting foreclosure, conveyance or guarantor; it being agreed by each Guarantor that, subject assignment in lieu or similar instrument (if any) with respect to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit CommitmentsCollateral.
(b) Each Guarantor represents, warrants and agrees that its obligations shall not have any liability under this Guaranty are for any acts or omissions which arise from and after the date Guarantor no longer Controls Borrower and no longer owns any legal or beneficial interest in Borrower as a result of the earlier to occur of the following: (A) Mortgage Lender or other third party purchaser obtains title to all of the Property by foreclosure (or deed or other transfer in lieu of foreclosure) by Mortgage Lender, (B) (x) Lender (or its agent or designee) obtains title to all of the Collateral by foreclosure (or assignment or other transfer in lieu of foreclosure) or (y) a third party obtains title to all of the Collateral in connection with a foreclosure sale of the Collateral, (C) (x) the Mezzanine B Lender (or its agent or designee) obtains title to all of the equity collateral securing the Mezzanine B Loan by foreclosure (or assignment or other transfer in lieu of foreclosure) or (y) a third party obtains title to all of the equity collateral securing the Mezzanine B Loan in connection with a foreclosure sale of such equity collateral or (D) (x) the holder of the New Mezzanine Loan (or its agent or designee) obtains title to all of the equity collateral securing the New Mezzanine Loan by foreclosure (or assignment or other transfer in lieu of foreclosure) or (y) a third party obtains title to all of the equity collateral securing the New Mezzanine Loan in connection with a foreclosure sale of the equity collateral, provided that (i) in the case of (B), (C) and (D), the result being that neither Guarantor nor any Person that Controls, is Controlled by or is under common Control with Borrower or Guarantor shall hold any direct or indirect equity interest in or Control, Borrower and, (ii) in the case of (A), (B), (C) and (D), that such acts were not committed or directed by Borrower or Guarantor or any Person that Controls, is Controlled by or is under common Control with Borrower or Guarantor. For purposes of this Section: (1) the term “Lender” includes (i) the initially named Lender and its successors and assigns and (ii) any holder of any New Mezzanine Loan and its or their successors and assigns, (2) the term “Mezzanine B Lender” includes (i) the initially named Mezzanine B Lender and its successors and assigns and (ii) any holder of any New Mezzanine Loan (as defined in the Mezzanine B Loan Documents and/or any New Mezzanine Loan documents created pursuant to the Mezzanine B Loan Documents) and its or their successors and assigns. For the avoidance of doubt, a Trigger Date shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and occurred if any of the Guarantorsevents described in (A), on the one hand(B), and the Administrative Agent and the Lenders(C) or (D) are set aside, on the other hand, likewise shall be conclusively presumed to have been had rescinded or consummated in reliance upon this Guarantyinvalidated.
Appears in 2 contracts
Samples: Mezzanine Loan Limited Recourse Guaranty (Brookfield DTLA Fund Office Trust Investor Inc.), Mezzanine Loan Limited Recourse Guaranty (Brookfield DTLA Fund Office Trust Investor Inc.)
Nature of Guaranty. Continuing, Absolute and Unconditional
(a) Each This Guaranty is and is intended to be a continuing guaranty of payment of the Obligations, independent of and in addition to any other guaranty, indorsement, collateral or other agreement held by Agent or any Lender therefor or with respect thereto, whether or not furnished by the Guarantor. The obligations of the Guarantor to repay the Obligations hereunder shall be unlimited. At all times prior to the final payment and performance in full of the Obligations, the Guarantor shall have no right of subrogation with respect to the Obligations or any payments made by the Guarantor hereunder and hereby waives any right to enforce any remedy which Agent or any Lender now have or may hereafter have against Borrowers or any endorser or any other guarantor of all or any part of the Obligations. The Guarantor hereby waives any benefit of, and any right to participate in, any security or collateral given to Agent or Lenders to secure payment of the Obligations or any part thereof, and the Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and it will not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a party;
(ii) the absence of take any action to enforce this Guarantyany obligations of Borrowers to the Guarantor prior to the Obligations being paid in full; provided that, in the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any event of the provisions bankruptcy or insolvency of any Borrower, Agent, and Lenders shall be entitled notwithstanding the foregoing, to file in the name of the Guarantor or in their own name a claim for any and all indebtedness owing to the Guarantor by Borrowers (exclusive of this Guaranty), to vote such claim and to apply the Credit Agreement or any other Loan Document;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release proceeds of any such security or guaranty); or
(iv) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject claim to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit CommitmentsObligations.
(b) Each For the further security of Agent, for its benefit and the benefit of Lenders, and without in any way diminishing the liability of the Guarantor, until all of the Obligations have been paid in full, all debts and liabilities, present or future of Borrowers to the Guarantor representsand, warrants except as otherwise permitted by the Loan Agreement, all monies received from Borrowers or for their account by the Guarantor in respect thereof shall be received in trust for Agent, for its benefit and agrees that the benefit of Lenders, and forthwith upon receipt shall be paid over to Agent, for its obligations benefit and the benefit of Lenders, to be credited and applied, whether the Obligations are matured or unmatured, in accordance with the terms of the Loan Agreement. This assignment and postponement is independent of and severable from this Guaranty and shall remain in full effect whether or not the Guarantor is liable for any amount under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the futureGuaranty.
(c) Each This Guaranty is absolute and unconditional and shall not be changed or affected by any representation, oral agreement, act or thing whatsoever, except as herein provided. This Guaranty is intended by the Guarantor to be the final, complete and exclusive expression of the guaranty agreement between the Guarantor, Agent and Lenders. No modification or amendment of any provision of this Guaranty shall be effective unless in writing and signed by a duly authorized officer of Agent and by the Guarantor.
(d) Until final payment and performance in full of the Obligations, the Guarantor hereby agrees and acknowledges that the Guaranteed Obligationsreleases Borrowers from all, and agrees not to assert or enforce (whether by or in a legal or equitable proceeding or otherwise) any, “claims” (as defined in Section 101(4) of the United States Bankruptcy Code, as amended (the “Bankruptcy Code”)), whether arising under any law, ordinance, rule, regulation, order, policy or other requirement of them, shall conclusively be deemed to have been created, contracted any domestic or incurredforeign government, or renewedany instrumentality or agency thereof, extendedhaving jurisdiction over the conduct of its business or assets or otherwise, amended to which the Guarantor is or waivedwould at any time be entitled by virtue of its obligations hereunder, in reliance upon this Guarantyany payment made pursuant hereto or the exercise by Agent of its rights with respect to the Collateral, and all dealings between including any such claims to which the Borrower and Guarantor may be entitled as a result of any right of the Guarantorssubrogation, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had exoneration or consummated in reliance upon this Guarantyreimbursement.
Appears in 2 contracts
Samples: Guaranty (Houston Wire & Cable CO), Guaranty (Houston Wire & Cable CO)
Nature of Guaranty. (a) Each Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or Agreement, any other Loan Document Document, any Hedging Agreement or any other agreement, document or instrument to which the Borrower or any Guarantor Subsidiary thereof is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document Document, any Hedging Agreement or the waiver or consent by the Administrative Agent or any other Lender Party with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan DocumentDocument or Hedging Agreement;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any other Lender Party in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty);
(iv) any structural change in, restructuring of or other similar organizational change of the Borrower or any Subsidiary thereof;
(v) any manner of application of collateral, or proceeds thereof, to all or any of the Guaranteed Obligations, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or any other Obligations of any Loan Party under the Loan Documents or any other assets of any Loan Party or any of its Subsidiaries;
(vi) any failure of any Lender Party to disclose to any Loan Party any information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Loan Party now or hereafter known to such Lender Party;
(vii) the failure of any other Person (other than, with respect to this Guaranty, the Administrative Agent) to execute or deliver this Guaranty, any Guaranty Agreement Supplement (as hereinafter defined) or any other guaranty or agreement or the release or reduction of liability of any Guarantor or other guarantor or surety with respect to the Guaranteed Obligations (other than any release or reduction described in Section 4.15); or
(ivviii) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.22.2 and to Section 4.15, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations (other than contingent indemnification obligations to the extent no claim giving rise thereto has been asserted) and the termination of the Revolving Credit Commitments.
(b) Each Guarantor represents, warrants and agrees that the Guaranteed Obligations and its obligations under this Guaranty are not and shall not be subject to any counterclaims, counterclaims or offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders other Lender Parties or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lendersother Lender Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 2 contracts
Samples: Senior Unsecured Credit Agreement (Choice Hotels International Inc /De), Senior Unsecured Credit Agreement (Choice Hotels International Inc /De)
Nature of Guaranty. (a) Each The liability of each Guarantor agrees that this hereunder is independent of and not in consideration of or contingent upon the liability of the Issuers or any other Obligor, and a separate action or actions may be brought or prosecuted against any Guarantor, whether or not any action is brought or prosecuted against the Issuers or any other Obligor or whether the Issuers or any other Obligor is joined in any such action or actions. This Guaranty is shall be construed as a continuing, absolute and unconditional guaranty of payment and performance (and not merely of collection), and that its obligations the liability of each Guarantor under this Guaranty shall be primaryirrevocable, absolute and unconditional, irrespective of, without regard to (and unaffected by:each Guarantor irrevocably waives):
(ia) the genuinenesslegality, validity, regularity, voidability or enforceability or any future amendment of, or change inof this Agreement, the Credit Agreement Note or any other Loan Document Investment Document, any of the Guarantied Obligations, any Lien or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a partyCollateral;
(iib) any defense (other than payment), set-off or counterclaim that may at any time be available to any Issuer or other Obligor against, and any right of setoff at any time held by, the absence Purchaser;
(c) any acts of commission or omission of any action to enforce this Guaranty, kind at any time on the Credit Agreement or any other Loan Document or part of the waiver or consent by the Administrative Agent or any Lender Purchaser with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan Documentmatter whatsoever;
(iiid) the existenceliquidation or dissolution of any Issuer or other Obligor, value any bankruptcy, insolvency, reorganization, arrangement, assignment for the benefit of creditors, receivership or condition ofsimilar event or proceeding with respect to any Issuer or other Obligor, or failure to perfect its Lien against, any security for action taken by any trustee or receiver of any Issuer or other guaranty Obligor or by any court or any proceeding with respect to any Issuer or other Obligor;
(e) any change of ownership of the Guaranteed Obligations Capital Stock of any Issuer or other Obligor, or any actionchange in the relationship between any Guarantor on the one hand, and any Issuer or other Obligor, on the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty other hand (including, without limitation, the release termination of any such security or guarantyrelationship); or
(ivf) any other action circumstance whatsoever (with or circumstances which without notice to or knowledge of any Guarantor or any other Obligor), whether or not similar to any of the foregoing, that constitutes, or might otherwise constitute a be construed to constitute, an equitable or legal discharge of the Issuers or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performanceany other Obligor, in fullbankruptcy or in any other instance. Any payment by any Obligor or other circumstance that operates to toll any statute of limitations applicable to such Obligor shall also operate to toll the statute of limitations applicable to each Guarantor. When making any demand hereunder (including by commencement or continuance of any legal proceeding), the Purchaser may, but shall be under no obligation to, make a similar demand on all or any of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.
(b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed ObligationsObligors, and any failure by the Purchaser to make any such demand shall not relieve any Guarantor 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guarantyits obligations hereunder.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Levine Leichtman Capital Partners Ii Lp), Securities Purchase Agreement (Interdent Inc)
Nature of Guaranty. (a) Each Guarantor agrees that this This Guaranty is a continuing, unconditional guaranty of payment payment, performance and performance compliance and not of collectioncollection and the Guarantor expressly agrees that it shall not be necessary or required that the Creditors exercise any right, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability assert any claim or demand or enforce any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which remedy whatsoever against the Borrower or any Guarantor is other Person before or may become as a party;
(ii) condition to the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any obligations of the provisions of this Guaranty, the Credit Agreement or any other Loan Document;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty Guarantor hereunder. This Guaranty is a primary obligation of the Guaranteed Obligations or any actionGuarantor and shall be an absolute, or the absence of any actionunconditional, by the Administrative Agent or any Lender in respect of such security or guaranty (includingpresent, without limitation, the release of any such security or guaranty); or
(iv) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.
(b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not continuing obligation and shall not be subject to any counterclaimscounterclaim, offsets setoff, deduction, diminution, abatement, recoupment, suspension, deferment, reduction, or defenses defense based on any claim the Guarantor or any other Person may have against the Borrower, the Creditors or any other Person. This Guaranty shall only be discharged by the complete and indefeasible satisfaction of all of the Obligations and shall not be released, discharged or affected by any circumstance whatsoever, including without limitation:
(a) the unenforceability, invalidity, irregularity or lack of genuineness of the Transaction Document or any of the obligations under the Transaction Documents;
(b) any amendment, modification, termination, or removal of, or addition or supplement to, the Transaction Documents, or any change in time, manner, or place of payment or performance of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.Obligation;
(c) Each any assignment, mortgage, release, exchange, addition, or transfer of any Collateral;
(d) any failure, refusal, omission or delay on the part of the Borrower, any Creditor or any other Person to conform or comply with any term of the Transaction Documents or any other agreement;
(e) any waiver, consent, extension, indulgence, surrender, settlement, subordination, release, compromise, or other agreement, or the exercise or non-exercise of any right or remedy thereunder, with or without consideration;
(f) the occurrence and/or continuance of any bankruptcy, insolvency, reorganization, liquidation, arrangement, adjustment of debt, relief of debtors, dissolution, or similar proceeding with respect to the Borrower, any Creditor, or any other Person, including without limitation any modification of the Borrower’s obligations under any Transaction Document in connection with any such proceeding;
(g) any defect in the title, condition, compliance with specifications, design, operation, or fitness for use of, or any damage to or loss of, or governmental prohibition or restriction, condemnation, requisition, or seizure of, any Collateral for any reason;
(h) any merger, consolidation, restructuring, termination of existence, sale of assets, or change in the ownership of any membership interests, shares of capital stock or other equity interest of the Borrower or the Guarantor;
(i) any present or future law, regulation, or order in any jurisdiction (whether of right or in fact) or any agency thereof affecting any term of any Obligation or any rights of any Creditor with respect thereto, including, without limitation, any law, regulation or order purporting to vary the terms of payment or to restrict the right or power of the Borrower or of the Guarantor hereby agrees and acknowledges that the Guaranteed Obligations, and or either of them to make payment of any of them, shall conclusively be deemed their respective Obligations to have been created, contracted or incurredthe Creditors; or
(j) any other circumstances whatsoever which might otherwise constitute a defense available to, or reneweda discharge of, extended, amended or waived, in reliance upon this Guaranty, and all dealings between either the Borrower and any of or the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this GuarantyGuarantor.
Appears in 2 contracts
Samples: Guaranty (Gulfmark Offshore Inc), Guaranty (Gulfmark Offshore Inc)
Nature of Guaranty. (a) Each Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that to the extent permitted by Applicable Law, its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, legality, validity, regularity, enforceability or any future amendment of, or change in, or supplement to, the Credit Agreement, any other Loan Document, any Cash Management Agreement or any other Loan Document Hedge Agreement or any other agreement, document or instrument to which the Borrower Borrower, any Guarantor or any Guarantor of their respective Subsidiaries or Affiliates is or may become a party, (including any increase in the Secured Obligations resulting from any extension of additional credit or otherwise);
(ii) any action under or in respect of the Credit Agreement, any other Loan Document, any Cash Management Agreement or any Hedge Agreement in the exercise of any remedy, power or privilege contained therein or available to any of them at law, in equity or otherwise, or waiver 60009077_4 or refraining from exercising any such remedies, power or privileges (including any manner of sale, disposition or any application of any sums by whomever paid or however realized to any Guaranteed Obligations owing by the Borrower or any Guarantor to the Administrative Agent or any other Secured Party in such manner as the Administrative Agent or any other Secured Party shall determine in its reasonable discretion);
(iii) the absence of any action to enforce this Guaranty, the Credit Agreement, any other Loan Document, any Cash Management Agreement or any other Loan Document Hedge Agreement or the waiver or consent by the Administrative Agent or any Lender other Secured Party with respect to any of the provisions of this Guaranty, the Credit Agreement or Agreement, any other Loan Document, any Cash Management Agreement or any Hedge Agreement;
(iiiiv) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender other Secured Party in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty);
(v) any structural change in, restructuring of or other similar organizational change of the Borrower, any Guarantor, any other guarantors or any of their respective Subsidiaries or Affiliates; or
(ivvi) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations (other than (1) contingent indemnification obligations, (2) obligations and liabilities under Secured Cash Management Agreements or Secured Hedge Agreements as to which arrangements satisfactory to the applicable Cash Management Bank or Hedge Bank shall have been made and (3) Letters of Credit that have been Cash Collateralized) and the termination of the Revolving Credit Commitments.
(b) Each Guarantor represents, warrants and agrees that to the extent permitted by Applicable Law the Guaranteed Obligations and its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of paymentpayment or performance) against the Administrative Agent, the Lenders other Secured Parties or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 among the Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lendersother Secured Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 2 contracts
Samples: Guaranty Agreement (Realpage Inc), Guaranty Agreement (Realpage Inc)
Nature of Guaranty. (a) Each Guarantor Holdings agrees that this Parent Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Parent Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit this Agreement or any other Bridge Loan Document or any other agreement, document or instrument to which Holdings, the Borrower Borrower, any Subsidiary thereof or any Guarantor Affiliate thereof is or may become a party;
(ii) the absence of any action to enforce this Parent Guaranty, the Credit this Agreement or any other Bridge Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Parent Guaranty, the Credit this Agreement or any other Bridge Loan Document;
(iii) any structural change in, restructuring of or similar change of Holdings, the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations Borrower or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty)their Subsidiaries; or
(iv) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, Holdings that its obligations under this Parent Guaranty shall not be discharged until the final and indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments(other than contingent indemnity obligations).
(b) Each Guarantor Holdings represents, warrants and agrees that its obligations under this Parent Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor Holdings hereby agrees and acknowledges that the Guaranteed 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 Parent Guaranty, and all dealings between Holdings, the Borrower and any of the Subsidiary Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Parent Guaranty.
Appears in 2 contracts
Samples: Bridge Loan Agreement (Digitalnet Holdings Inc), Bridge Loan Agreement (Digitalnet Holdings Inc)
Nature of Guaranty. (a) Each Guarantor agrees that this Guaranty Agreement is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty Agreement shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or Agreement, any other Loan Document Document, any Secured Hedge Agreement, any Secured Cash Management Agreement or any other agreement, document or instrument to which the Borrower Borrower, any Guarantor or any Guarantor of their respective Subsidiaries or Affiliates is or may become a party;
(ii) the absence of any action to enforce this GuarantyAgreement, the Credit Agreement or Agreement, any other Loan Document Document, Secured Hedge Agreement or Secured Cash Management Agreement, or the waiver or consent by the Administrative Agent or any Lender other Secured Party with respect to any of the provisions of this GuarantyAgreement, the Credit Agreement or Agreement, any other Loan Document, Secured Hedge Agreement or Secured Cash Management Agreement;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender other Secured Party in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty);
(iv) any structural change in, restructuring of or other similar organizational change of the Borrower, any Guarantor or any of their respective Subsidiaries or Affiliates; or
(ivv) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty Agreement shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments, provided that a Guarantor may be released from the Guaranteed Obligations pursuant to Section 4.18.
(b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty Agreement are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or other Secured Parties, the Borrower or any Guarantor whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 GuarantyAgreement, and all dealings between the Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lendersother Secured Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this GuarantyAgreement.
Appears in 2 contracts
Samples: Guaranty Agreement (Boot Barn Holdings, Inc.), Guaranty Agreement (Boot Barn Holdings, Inc.)
Nature of Guaranty. (a) Each Subject to Section 12.1 above, each Borrower Guarantor agrees that this its Borrower Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this such Borrower Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
by (ia) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit this Agreement or any other Loan Document or any other agreement, document or instrument to which the such Borrower or any Guarantor is or may become a party;
, (iib) the absence of any action to enforce this its Borrower Guaranty, the Credit this Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender other Guaranteed Party with respect to any of the provisions of this its Borrower Guaranty, the Credit this Agreement or any other Loan Document;
, (iiic) the existence, value or condition of, or failure to perfect its Lien a Lien, if any, against, any security for or other guaranty of the its Borrower Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender other Guaranteed Party in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
, (ivd) any structural change in, restructuring of or other similar change of such Borrower or any of its respective Subsidiaries or (e) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Borrower Guarantor that, subject to the first sentence of Section 2.2, that its obligations under this its Borrower Guaranty shall not be discharged until the final and indefeasible payment and performancepayment, in full, of the its Borrower Guaranteed Obligations and the termination of the Revolving Commitments. To the extent permitted by law, each Borrower Guarantor expressly waives all rights it may now or in the future have under any statute, or at law or in equity, or otherwise, to compel the Administrative Agent or any other Guaranteed Party to proceed in respect of its Borrower Guaranteed Obligations against any other Credit Commitments.
(b) Each Party, any other guarantor or any other party or against any security for or other guaranty of the payment of its Borrower Guaranteed Obligations before proceeding against, or as a condition to proceeding against, any other Borrower. To the extent permitted by law, the each Borrower Guarantor represents, warrants further expressly waives and agrees not to assert or take advantage of any defense based upon the failure of the Administrative Agent or any other Guaranteed Party to commence an action in respect of its Borrower Guaranteed Obligations against any other Borrower, any other guarantor or any other party or any security for the payment of its Borrower Guaranteed Obligations. Each Borrower Guarantor agrees that its obligations under this Guaranty are not any notice or directive given at any time to the Administrative Agent or any other Guaranteed Party that is inconsistent with the waivers in the preceding two sentences shall be null and shall void and may be ignored by the Administrative Agent or such other Guaranteed Party, and, in addition, may not be subject pleaded or introduced as evidence in any litigation relating to any counterclaims, offsets its Borrower Guaranty for the reason that such pleading or defenses introduction would be at variance with the written terms of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the its Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Guarantors, on the one hand, and unless the Administrative Agent and the LendersRequired Lenders have specifically agreed otherwise in writing. The foregoing waivers are of the essence of the transaction contemplated by the Loan Documents and, on but for each applicable Borrower Guaranty and such waivers, the other hand, likewise shall be conclusively presumed Administrative Agent and the Lenders would decline to have been had or consummated in reliance upon enter into this GuarantyAgreement.
Appears in 2 contracts
Samples: Credit Agreement (Pool Corp), Credit Agreement (Pool Corp)
Nature of Guaranty. (a) Each The obligations of the Guarantor agrees that hereunder are primary and not as surety only, and this Guaranty is constitutes a continuing, unconditional guaranty guarantee of payment when due and performance owing only. The Guarantor expressly waives any legal obligations, duty or necessity for any person or entity to proceed first against Obligor or to exhaust any remedy it may have against Obligor. The obligations of the Guarantor hereunder shall not be subject to any counterclaim, setoff, deduction or defense based upon any claim the Guarantor or Obligor may have against the Guaranteed Party (other than any claim that Obligor has under the LLC Agreement) or any of its Affiliates and not shall remain in full force and effect until the full and final payment and satisfaction of collection, and that its obligations under this Guaranty all of the Obligations. Neither the Guarantor nor any Obligations hereunder shall be primaryreleased, absolute and unconditionaldischarged or in any way affected by, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan Document;
(iii) the existence, value circumstance or condition of(whether or not the Guarantor shall have any knowledge or notice thereof), or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation: (i) any waiver, consent, change, extension, indulgence or other action or inaction under or in respect of any Obligation, whether or not Obligor or the Guarantor have notice or knowledge of any of the foregoing; (ii) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation, dissolution or similar proceeding with respect to Obligor or the Guarantor; (iii) any amendment to, or assignment or other transfer of, the release of any such security LLC Agreement by the Guaranteed Party or guaranty)Obligor; or
(iv) any lien, charge, restriction or encumbrance on or affecting Obligor’s estate; (v) any sale or other action disposition of all or circumstances any part of the capital stock or assets of Obligor; (vi) any payment by Obligor which is received by Obligor’s trustee in bankruptcy; or (vii) any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to guarantor (other than the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, full of the Guaranteed Obligations and the termination of the Revolving Credit CommitmentsObligations).
(b) Each To the extent permitted by Law, the Guarantor representsunconditionally waives (i) notice of any of the matters referred to in this Section 3, warrants (excluding the notice of payment demand pursuant to Section 3(c)), and agrees that its obligations (ii) all notices which may be required by statute, rule of law or otherwise to preserve any rights against the Guarantor hereunder, including, without limitation, of demand, presentment, adverse facts, protest, proof or nonpayment of any sums payable under the LLC Agreement (including, without limitation, any indemnity payment), of transfer or other disposition of the LLC Agreement by any party thereto or of this Guaranty are not by Guaranteed Party, of the extension of time for the payment of sums due and shall not be subject payable to the Guaranteed Party under the LLC Agreement, of the creation or any counterclaims, offsets or defenses existence of any kind (other than of the defense Obligations, of payment) against the Administrative Agentenforcement, assertion or exercise of any right, remedy, power or privilege under or in respect of any of the Lenders Obligations, of any requirement of diligence and any requirement to mitigate the damages resulting from a breach of or default under the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that LLC Agreement by Obligor, of acceptance of this Guaranty by the Guaranteed Party, of the entry into any agreement between the Guaranteed Party and its Affiliates and Obligor and its Affiliates and of any modifications thereto of any increase or other modification of the Obligations, and of assignment, transfer or other disposition of the LLC Agreement by any party thereto or of them, this Guaranty by the Guaranteed Party. All of the Obligations shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, incurred in reliance upon this Guaranty, Guaranty and all dealings between the Borrower Guaranteed Party and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, Obligor shall likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
(c) If Obligor fails to pay all or any part of the Obligations when due and owing, Guarantor will pay the same upon receipt of a written demand to Guarantor from the Guaranteed Party.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (PBF Holding Co LLC), Subscription Agreement (PBF Holding Co LLC)
Nature of Guaranty. (a) Each Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower Borrower, any Guarantor, any Subsidiary Guarantor or any Guarantor of their respective Subsidiaries or Affiliates is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan Document;
(iii) the existence, value or condition of, or failure to perfect its the Administrative Agent’s Lien against, any security for or other guaranty of of, the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or;
(iv) any structural change in, restructuring of or other similar change of the Borrower, any Guarantor, any Subsidiary Guarantor or any of their respective Subsidiaries;
(v) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments; provided that notwithstanding anything to the contrary in this Section 2.5, a Guarantor may be released from the Guaranteed Obligations and any other obligations hereunder pursuant to Section 4.16 of this Guaranty.
(b) Each Guarantor representshereby represents and warrants that the Guaranteed Obligations and any other obligations hereunder are not, warrants and agrees that its obligations under this Guaranty are not and shall not be be, subject to any counterclaims, offsets or defenses of any kind (other than the a defense of payment) of any kind against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed Obligations, and any other obligations hereunder, 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 2 contracts
Samples: Credit Agreement (Tuesday Morning Corp/De), Credit Agreement (Tuesday Morning Corp/De)
Nature of Guaranty. (a) Each Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty Agreement shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(ia) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit this Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a party;
(iib) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan Document;
(iiic) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(ivd) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, that its obligations under this Guaranty shall not be discharged until the final and indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.
(b) Aggregate Commitment. Each Guarantor representsexpressly waives all rights it may now or in the future have under any statute (including, warrants without limitation, North Carolina General Statutes Section 26-7, et seq. or similar law), or at law or in equity, or otherwise, to compel the Administrative Agent or any Lender to proceed in respect of the Guaranteed Obligations against the Borrower or any other party or against any security for or other guaranty of the payment and performance of the Guaranteed Obligations before proceeding against, or as a condition to proceeding against, such Guarantor. Each Guarantor further expressly waives and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets assert or defenses take advantage of any kind (other than defense based upon the defense failure of payment) the Administrative Agent or any Lender to commence an action in respect of the Guaranteed Obligations against the Administrative AgentBorrower, any Guarantor or any other party or any security for the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees payment and acknowledges that performance of the Guaranteed Obligations. Each Guarantor agrees that any notice or directive given at any time to the Administrative Agent or any Lender which is inconsistent with the waivers in the preceding two sentences shall be null and void and may be ignored by the Administrative Agent or Lender, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waivedand, in reliance upon addition, may not be pleaded or introduced as evidence in any litigation relating to this Guaranty for the reason that such pleading or introduction would be at variance with the written terms of this Guaranty, and all dealings between the Borrower and any of the Guarantors, on the one hand, and unless the Administrative Agent and the LendersRequired Lenders have specifically agreed otherwise in writing. The foregoing waivers are of the essence of the transaction contemplated by the Loan Documents and, on but for this Guaranty and such waivers, the other hand, likewise shall be conclusively presumed Administrative Agent and Lenders would decline to have been had or consummated in reliance upon enter into this GuarantyAgreement.
Appears in 2 contracts
Samples: Credit Agreement (Golf Trust of America Inc), Credit Agreement (Golf Trust of America Inc)
Nature of Guaranty. (a) Each The Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
by (ia) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit this Agreement or any other Loan Document or any other agreement, document or instrument to which the any such Borrower or any Guarantor is or may become a party;
, (iib) the absence of any action to enforce this Guaranty, the Credit this Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit this Agreement or any other Loan Document;
, (iiic) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
) or (ivd) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each the Guarantor that, subject to the first sentence of Section 2.2, that its obligations under this Guaranty shall not be discharged until the final and indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.
. The Guarantor expressly waives all rights it may now or in the future have under any statute (b) Each including without limitation North Carolina General Statutes Section 26-7, et seq. or similar law), or at law or in equity, or otherwise, to compel the Administrative Agent or any Lender to proceed in respect of the Guaranteed Obligations against any such Borrower or any other party or against any security for or other guaranty of the payment and performance of the Guaranteed Obligations before proceeding against, or as a condition to proceeding against, the Guarantor. The Guarantor represents, warrants further expressly waives and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets assert or defenses take advantage of any kind (other than defense based upon the defense failure of payment) against the Administrative AgentAgent or any Lender to commence an action in respect of the Guaranteed Obligations against any such Borrower, the Lenders Guarantor or any other party or any security for the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees payment and acknowledges that performance of the Guaranteed Obligations. The Guarantor agrees that any notice or directive given at any time to the Administrative Agent or any Lender which is inconsistent with the waivers in the preceding two sentences shall be null and void and may be ignored by the Administrative Agent or Lender, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waivedand, in reliance upon addition, may not be pleaded or introduced as evidence in any litigation relating to this Guaranty for the reason that such pleading or introduction would be at variance with the written terms of this Guaranty, and all dealings between the Borrower and any of the Guarantors, on the one hand, and unless the Administrative Agent and the LendersRequired Lenders have specifically agreed otherwise in writing. The foregoing waivers are of the essence of the transaction contemplated by the Loan Documents and, on but for this Guaranty and such waivers, the other hand, likewise shall be conclusively presumed Agents and Lenders would decline to have been had or consummated in reliance upon enter into this GuarantyAgreement.
Appears in 2 contracts
Samples: Credit Agreement (Acc Corp), Credit Agreement (Acc Corp)
Nature of Guaranty. (a) Each Guarantor agrees that This is a continuing Guaranty of payment and not of collection and remains effective whether the Indebtedness is from time to time reduced and later increased or entirely extinguished and later reincurred. This Guaranty shall remain effective with respect to successive transactions which shall either continue the Indebtedness, increase or decrease it, or from time to time create new Indebtedness after all or any prior Indebtedness has been satisfied, until this Guaranty is a continuing, unconditional guaranty of payment terminated in the manner and performance to the extent provided below. The undersigned acknowledge(s) and not of collection, and agree(s) that its obligations under the liabilities created by this Guaranty shall be primary, absolute are direct and unconditional, irrespective of, and unaffected by:
(i) are not conditioned upon pursuit by the genuineness, validity, regularity, enforceability or Bank of any future amendment of, or change in, remedy the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which Bank may have against the Borrower or any Guarantor is person or may become any security. No invalidity, irregularity or unenforceability of any part or all of the Indebtedness or any documents evidencing the same, by reason of any bankruptcy, insolvency or other law or order of any kind or for any reason, and no defense or setoff available at any time to the Borrower, shall impair, affect or be a party;
defense or setoff to the obligations of the undersigned under this Guaranty. The undersigned deliver(s) this Guaranty based solely on the undersigned’s independent investigation of (iior decision not to investigate) the absence financial condition of Borrower and is (are) not relying on any information furnished by the Bank. The undersigned assume(s) full responsibility for obtaining any further information concerning the Borrower’s financial condition, the status of the Indebtedness or any other matter which the undersigned may deem necessary or appropriate now or later. The undersigned waive(s) any duty on the part of the Bank, and agree(s) that it is not relying upon nor expecting the Bank to disclose to the undersigned any fact now or later known by the Bank, whether relating to the operations or condition of the Borrower, the existence, liabilities or financial condition of any action co-guarantor of the Indebtedness, the occurrence of any default with respect to enforce the Indebtedness, or otherwise, notwithstanding any effect these facts may have upon the undersigned’s risk under this Guaranty or the undersigned’s rights against the Borrower. The undersigned knowingly accept(s) the full range of risk encompassed in this Guaranty, which risk includes, without limit, the Credit Agreement or any other Loan Document or possibility that Borrower may incur Indebtedness to the waiver or consent by Bank after the Administrative Agent or any Lender with respect to any financial condition of the provisions of this Guaranty, the Credit Agreement or any other Loan Document;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any actionBorrower, or the absence Borrower’s ability to pay debts as they mature, has deteriorated. The undersigned represent(s) and warrant(s) that: (a) the Bank has made no representation to the undersigned as to the creditworthiness of the Borrower; and (b) the undersigned has (have) established adequate means of obtaining from the Borrower on a continuing basis financial and other information pertaining to the Borrower’s financial condition. The undersigned agree(s) to keep adequately informed of any actionfacts, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(iv) any other action events or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to in any way affect the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, risks of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.
(b) Each Guarantor represents, warrants and agrees that its obligations undersigned under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 2 contracts
Samples: Guaranty (Manitex International, Inc.), Guaranty (Manitex International, Inc.)
Nature of Guaranty. CONTINUING, ABSOLUTE AND UNCONDITIONAL.
(a) This Guaranty is and is intended to be a continuing guaranty of payment of the Obligations, and not of collectibility, and is and is intended to be independent of and in addition to any other guaranty, indorsement, collateral or other agreement held by the Agent or the Lenders therefor or with respect thereto, whether or not furnished by the Guarantor. Neither Agent nor any Lender shall be required to prosecute collection, enforcement or other remedies against Borrower, any other Guarantor or guarantor of the Obligations or any other Person, or to enforce or resort to any of the Collateral or other rights or remedies pertaining thereto, before calling on a Guarantor for payment. The obligations of each Guarantor to repay the Obligations hereunder shall be unconditional. Each Guarantor shall have no right of subrogation with respect to any payments made by any Guarantor hereunder until the Obligations have been paid in full, and hereby waives any benefit of, and any right to participate in, any security or collateral given to the Agent or any Lender to secure payment of the Obligations, and each Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and it will not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a party;
(ii) the absence of take any action to enforce this Guaranty, any obligations of the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect Borrower to any of the provisions of this Guaranty, the Credit Agreement or any other Loan Document;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(iv) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject prior to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment Obligations being finally and performance, irrevocably paid in full, of the Guaranteed Obligations full and the termination of the Revolving Commitments under the Credit CommitmentsAgreement, PROVIDED that, in the event of the bankruptcy or insolvency of the Borrower, the Agent, on behalf of the Lenders, shall be entitled notwithstanding the foregoing, to file in the name of any Guarantor or in its own name a claim for any and all indebtedness owing to a Guarantor by the Borrower (exclusive of this Guaranty), vote such claim and to apply the proceeds of any such claim to the Obligations.
(b) Each For the further security of the Agent and the Lenders and without in any way diminishing the liability of the Guarantors, following the occurrence and during the continuance of an Event of Default, all debts and liabilities, present or future of the Borrower to the Guarantors and all monies received from the Borrower or for its account by the Guarantors in respect thereof shall be received in trust for the Agent and the Lenders and forthwith upon receipt shall be paid over to the Agent, for the benefit of the Agent and the Lenders, until all of the Obligations has been paid in full. This assignment and postponement is independent of and severable from this Guaranty and shall remain in full effect whether or not any Guarantor represents, warrants and agrees that its obligations is liable for any amount under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the futureGuaranty.
(c) Each This Guaranty is absolute and unconditional and shall not be changed or affected by any representation, oral agreement, act or thing whatsoever, except as herein provided. This Guaranty is intended by the Guarantors to be the final, complete and exclusive expression of the guaranty agreement between the Guarantors and the Agent, for its own benefit and on behalf of the Lenders. No modification or amendment of any provision of this Guaranty shall be effective against Agent or a Guarantor unless in writing and signed by a duly authorized officer of the Agent, individually and on behalf of the Lenders and by such Guarantor.
(d) Prior to the Obligations being finally and irrevocably paid in full and the termination of the Commitments under the Credit Agreement, each Guarantor hereby agrees and acknowledges that the Guaranteed Obligations, and not to assert or enforce (whether by or in a legal or equitable proceeding or otherwise) any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, "claims" (as defined in reliance upon this Guaranty, and all dealings between the Borrower and any Section 101(4) of the GuarantorsBankruptcy Code), on whether arising under any law, ordinance, rule, regulation, order, policy or other requirement of any domestic or foreign government or any instrumentality or agency thereof, having jurisdiction over the one handconduct of its business or assets or otherwise, and to which the Administrative Agent and Guarantors are or would at any time be entitled by virtue of its obligations hereunder, any payment made pursuant hereto or the Lendersexercise by Lender of its rights with respect to the Collateral, on the other handincluding any such claims to which such Guarantors may be entitled as a result of any right of subrogation, likewise shall be conclusively presumed to have been had exoneration or consummated in reliance upon this Guarantyreimbursement.
Appears in 2 contracts
Samples: Guaranty (Packaged Ice Inc), Guaranty (Packaged Ice Leasing Inc)
Nature of Guaranty. (a) Each The obligations hereunder are independent of the obligations of Debtor, or of any other person whomsoever, and a separate action or actions may from time to time be brought and prosecuted against Guarantor or any other guarantor, whether action is or has been brought against Debtor or any other person, or whether Debtor or such other person is joined in any such action or actions. Guarantor agrees that this Guaranty is a continuingits liability hereunder shall not be affected or impaired nor shall Guarantor be discharged in whole or in part, unconditional guaranty by any of payment and performance and not of collectionthe following-described occurrences, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment ofcombination thereof with respect to Debtor or any other guarantor, or change inany partner or affiliate of Debtor: death, incompetency, dissolution, insolvency, bankruptcy (whether or not Debtor or such other guarantor was granted a discharge with respect to the Credit Agreement Loan or this or any other Loan Document Guaranty Agreement), litigation, or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a party;
(ii) the absence of withdrawal; nor shall any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent inaction by the Administrative Agent or any Lender with respect to any such event affect Guarantor’s liability in any manner. In the event of the provisions pendency of this Guarantyany receivership, the Credit Agreement or any other Loan Document;
(iii) the existenceinsolvency, value or condition ofliquidation, or failure to perfect its Lien againstbankruptcy, any security for reorganization, arrangement, adjustment, composition or other guaranty judicial proceeding relative to Guarantor or to the property of Guarantor, Lender shall be entitled and empowered, by intervention in such proceedings or otherwise: (a) to file and prove a claim for the whole amount of the Guaranteed Obligations indebtedness guaranteed hereby and to file such other papers or documents as may be necessary or advisable in order to have the claims of Lender (including any actionclaims for the reasonable compensation, or the absence expenses, disbursements and advances of any action, by the Administrative Agent or any Lender and Lender’s agents and counsel) allowed in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty)judicial proceedings; or
(iv) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.
(b) Each Guarantor represents, warrants to collect and agrees that its obligations under this Guaranty are not and shall not be subject to receive any counterclaims, offsets monies or defenses of other property payable or deliverable on any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the futuresuch claims.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 2 contracts
Samples: Loan Guaranty Agreement (GLADSTONE LAND Corp), Loan Guaranty Agreement (GLADSTONE LAND Corp)
Nature of Guaranty. This Guaranty may not be revoked by Guarantor; provided, however, in the event it shall be determined that Guarantor shall have the right, in accordance with applicable law and notwithstanding its express agreement herein to the contrary, to revoke this Guaranty, Guarantor may deliver to Administrative Agent, at its address for notices set forth in the Credit Agreement, written notice of Guarantor's intention not to be liable hereunder for any Guaranteed Obligations arising, created or incurred after Administrative Agent's receipt of such notice, whereupon such notice shall be effective to the extent (but only to the extent) provided hereinbelow as to Guarantor from and after (but not before) the time when such notice is actually delivered to and received by and receipted for in writing by Administrative Agent (the "Effective Revocation Time"); provided, further, however, that such notice shall not be effective as to, and shall not in any way restrict, limit, impair, release or otherwise affect, the indebtedness, liabilities or obligations of Guarantor under this Guaranty with respect to (a) Each Guarantor agrees that this Guaranty is a continuingany Guaranteed Obligations consisting of indebtedness, unconditional guaranty of payment and performance and not of collection, and that its liabilities or obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change inCredit Agreement, the Credit Agreement Notes or any other Loan Document Document, whether incurred before or after the Effective Revocation Time (including, without limitation, any other agreementloans, document advances or instrument to which the Borrower extensions of credit at any time made or any Guarantor is or may become a party;
(ii) the absence of any action to enforce this Guaranty, created under the Credit Agreement Agreement, whether or any other Loan Document not agreed, committed or the waiver or consent contemplated to be made by the Administrative Agent or any Lender and whether or not discretionary with Administrative Agent or any Lender), (b) any Guaranteed Obligations arising, created or incurred prior to the Effective Revocation Time, (c) any amendments, modifications, renewals, extensions, restatements and/or supplements to or of the indebtedness, liabilities or obligations referred to in clauses (a) and (b) preceding, whether occurring before or after the Effective Revocation Time, or (d) any interest or costs of collection with respect to any of the provisions indebtedness, liabilities or obligations referred to in clauses (a), (b) or (c) preceding. Any revocation or attempted revocation of this Guaranty, the Credit Agreement whether in whole or any other Loan Document;
(iii) the existencein part, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(iv) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.
effective except under limited circumstances (b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed Obligationsif any), and any of themto the limited extent, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, expressly provided in reliance upon this Guaranty, and all dealings between the Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this GuarantyParagraph 26.
Appears in 2 contracts
Samples: Guaranty Agreement (Savvis Communications Corp), Guaranty Agreement (Savvis Communications Corp)
Nature of Guaranty. (a) Each Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the any Borrower or any Guarantor is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan Document;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(iv) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.
(b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the any Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower Borrowers and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 2 contracts
Samples: 364 Day Credit Agreement (Family Dollar Stores Inc), Credit Agreement (Family Dollar Stores Inc)
Nature of Guaranty. (a) Each Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Loan Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Guarantor Subsidiary is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Loan Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit Loan Agreement or any other Loan Document;
(iii) the existence, value or condition of, or failure to perfect its any Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(iv) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantorguarantor (all of which are, to the fullest extent permitted by law, hereby waived); it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit CommitmentsObligations.
(b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses (except payment in full) of any kind (other than the defense of payment) against the Administrative Agent, the Lenders Lender or the Borrower Borrower, whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the LendersLender, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 2 contracts
Samples: Guaranty Agreement (Clearpoint Business Resources, Inc), Guaranty Agreement (General Environmental Management, Inc)
Nature of Guaranty. (a) Each The liability of each Guarantor agrees that this hereunder is independent of and not in consideration of or contingent upon the liability of the Company or any other Obligor, and a separate action or actions may be brought or prosecuted against any Guarantor, whether or not any action is brought or prosecuted against the Company or any other Obligor or whether the Company or any other Obligor is joined in any such action or actions. This Guaranty is shall be construed as a continuing, absolute and unconditional guaranty of payment and performance (and not merely of collection), and that its obligations the liability of each Guarantor under this Guaranty shall be primaryirrevocable, absolute and unconditional, irrespective of, without regard to (and unaffected by:each Guarantor irrevocably waives):
(ia) the genuinenesslegality, validity, regularity, validity or enforceability or any future amendment of, or change inof this Agreement (including this Guaranty), the Credit Agreement Notes or any other Loan Document or any other agreementInvestment Document, document or instrument to which the Borrower or any Guarantor is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this GuarantyGuarantied Obligations, the Credit Agreement any Lien or any other Loan Document;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations Collateral or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(iv) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.Other Guaranty;
(b) Each Guarantor representsany defense (other than payment), warrants set-off or counterclaim that may at any time be available to the Company or any other Obligor against, and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaimsright of setoff at any time held by, offsets the Beneficiary;
(c) any acts of commission or defenses omission of any kind (other than gross negligence) at any time on the defense part of paymentthe Beneficiary with respect to any matter whatsoever;
(d) against the Administrative Agentliquidation or dissolution of the Company or any other Obligor, any bankruptcy, insolvency, reorganization, arrangement, assignment for the benefit of creditors, receivership or similar event or proceeding with respect to the Company or any other Obligor, or any action taken by any trustee or receiver of the Company or any other Obligor or by any court or any proceeding with respect to the Company or any other Obligor;
(e) any change of ownership of the Capital Stock of the Company or any other Obligor, or any change in the relationship between any Guarantor and the Company (including the termination of such relationship); or
(f) any other circumstance whatsoever (with or without notice to or knowledge of any Guarantor or any other Obligor), whether or not similar to any of the foregoing, that constitutes, or might be construed to constitute, an equitable or legal discharge of the Company or any other Obligor, in bankruptcy or in any other instance. Any payment by any Obligor or other circumstance that operates to toll any statute of limitations applicable to such Obligor shall also operate to toll the statute of limitations applicable to each Guarantor. When making any demand hereunder (including by commencement or continuance of any legal proceeding), the Lenders Beneficiary may, but shall be under no obligation to, make a similar demand on all or any of the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed Obligationsother Obligors, and any failure by the Beneficiary to make any such demand shall not relieve any Guarantor 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guarantyits obligations hereunder.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Levine Leichtman Capital Partners Ii Lp), Securities Purchase Agreement (Overhill Farms Inc)
Nature of Guaranty. Guarantor hereby absolutely and unconditionally guarantees, as a guarantee of payment and not merely as a guarantee of collection, the due and punctual payment in full of (a) Each Guarantor agrees that this Guaranty is a continuingthe principal of, unconditional guaranty of payment and performance and not of collectionMake-Whole Amount, if any, and that its interest on (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), and any other amounts due under, the Notes when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), (b) all costs, attorneys’ fees and expenses incurred by any holder in connection with the collection or enforcement thereof, and (c) any other sums which may become due under the terms and provisions of the Notes, the Note Purchase Agreement or any other instrument referred to therein’ (all such obligations under this described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). Issuer’s books and records showing the amount of the Guaranteed Obligations shall be admissible in evidence in any action or proceeding, and shall be binding upon Guarantor and conclusive for the purpose of establishing the amount of the Guaranteed Obligations. This Guaranty shall not be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) affected by the genuineness, validity, regularity, or enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan Document;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any actioninstrument or agreement evidencing any Guaranteed Obligations, or by any fact or circumstance relating to the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(iv) any other action or circumstances Guaranteed Obligations which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence obligations of Section 2.2, its obligations Guarantor under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.
(b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 2 contracts
Samples: Note Purchase Agreement (STAG Industrial, Inc.), Note Purchase Agreement (STAG Industrial, Inc.)
Nature of Guaranty. (a) Each Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower Borrower, any Parental Entity Guarantor, any Guarantor or any Guarantor of their respective Subsidiaries or Affiliates is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan Document;
(iii) the existence, value or condition of, or failure to perfect its the Administrative Agent’s Lien against, any security for for, or other guaranty of of, the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty);
(iv) any structural change in, restructuring of or similar change of the Borrower, the Parental Entity Guarantors, any Guarantor or any of their respective Subsidiaries; or
(ivv) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments; provided that notwithstanding anything to the contrary in this Section 2.5, a Guarantor may be released from the Guaranteed Obligations and any other obligations hereunder pursuant to Section 4.16 of this Guaranty.
(b) Each Guarantor represents, hereby represents and warrants and agrees that its obligations under this Guaranty are not not, and agrees that the Guaranteed Obligations and any other obligations hereunder shall not be be, subject to any counterclaims, offsets or defenses of any kind (other than the a defense of payment) of any kind against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed ObligationsObligations and any other obligations hereunder, 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 2 contracts
Samples: Credit Agreement (Tuesday Morning Corp/De), Credit Agreement (Tuesday Morning Corp/De)
Nature of Guaranty. (a) Each Guarantor agrees This Guaranty shall commence upon execution and delivery of the Lease and shall continue in full force and effect until all of the Obligations are paid and performed in full and are not subject to any right of extension by Lessee; provided, however, in the event the Lease is assigned as permitted under the Lease, and in connection therewith, Lessor receives a replacement Guaranty that this is acceptable to Lessor in its reasonable discretion, then Guarantor’s liability shall be limited to the obligations of Lessee accruing prior to the assignment and effective date of the replacement guaranty. The Obligations shall not be considered fully paid, performed and discharged unless and until all payments by Lessee to Lessor are no longer subject to any right on the part of any Person whomsoever, including but not limited to Lessee, Lessee as a debtor-in-possession and/or any trustee in bankruptcy, to disgorge such payments or seek to recoup the amount of such payments or any part thereof. This Guaranty is a continuingshall remain in full force and effect and continue to be effective upon an Insolvency Event. This Guaranty shall continue to be effective or be reinstated, unconditional guaranty of as applicable, if at any time payment and performance of the Obligations, or any part thereof, are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by Lessor, whether as a “voidable preference,” “fraudulent conveyance” or otherwise, all as though such payment or performance had not been made. In the event that any payment of the Obligations, or any part thereof, is rescinded, reduced, restored or returned, the Obligations shall be reinstated and deemed reduced only by such amount paid to Lessor and not of collectionso rescinded, and that its obligations under this Guaranty shall be primaryreduced, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability restored or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan Document;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(iv) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitmentsreturned.
(b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 2 contracts
Samples: Unconditional Guaranty of Payment and Performance (Ampco Pittsburgh Corp), Unconditional Guaranty of Payment and Performance (Ampco Pittsburgh Corp)
Nature of Guaranty. (a) Each Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty Agreement shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(ia) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit this Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a party;
(iib) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan Document;
(iiic) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(ivd) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, that its obligations under this Guaranty shall not be discharged until the final and indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.
(b) Aggregate Commitment. Each Guarantor representsexpressly waives all rights it may now or in the future have under any statute (including, warrants without limitation, North Carolina General Statutes Section 26-7, ET SEQ. or similar law), or at law or in equity, or otherwise, to compel the Administrative Agent or any Lender to proceed in respect of the Guaranteed Obligations against the Borrower or any other party or against any security for or other guaranty of the payment and performance of the Guaranteed Obligations before proceeding against, or as a condition to proceeding against, such Guarantor. Each Guarantor further expressly waives and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets assert or defenses take advantage of any kind (other than defense based upon the defense failure of payment) the Administrative Agent or any Lender to commence an action in respect of the Guaranteed Obligations against the Administrative AgentBorrower, any Guarantor or any other party or any security for the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees payment and acknowledges that performance of the Guaranteed Obligations. Each Guarantor agrees that any notice or directive given at any time to the Administrative Agent or any Lender which is inconsistent with the waivers in the preceding two sentences shall be null and void and may be ignored by the Administrative Agent or Lender, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waivedand, in reliance upon addition, may not be pleaded or introduced as evidence in any litigation relating to this Guaranty for the reason that such pleading or introduction would be at variance with the written terms of this Guaranty, and all dealings between the Borrower and any of the Guarantors, on the one hand, and unless the Administrative Agent and the LendersRequired Lenders have specifically agreed otherwise in writing. The foregoing waivers are of the essence of the transaction contemplated by the Loan Documents and, on but for this Guaranty and such waivers, the other hand, likewise shall be conclusively presumed Administrative Agent and Lenders would decline to have been had or consummated in reliance upon enter into this GuarantyAgreement.
Appears in 2 contracts
Samples: Credit Agreement (Golf Trust of America Inc), Credit Agreement (Golf Trust of America Inc)
Nature of Guaranty. (a) Each The Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(ia) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a party;
(iib) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent Agents or any Lender with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan Document;
(iiic) the existence, value or condition of, or failure by the Agents to perfect its their Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent Agents or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(ivd) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each the Guarantor that, subject to the first sentence of proviso in Section 2.22 hereof, its obligations under this Guaranty shall not be discharged until the final and indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.
(b) Each . To the extent permitted by law, the Guarantor representsexpressly waives all rights it may now or in the future have under any statute, warrants or at law or in equity, or otherwise, to compel the Agents or any Lender to proceed in respect of the Guaranteed Obligations against the Borrower or any other party or against any security for or other guaranty of the payment and performance of the Guaranteed Obligations before proceeding against, or as a condition to proceeding against, the Guarantor. To the extent permitted by law, the Guarantor further expressly waives and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets assert or defenses take advantage of any kind (other than defense based upon the defense failure of payment) the Agents or any Lender to commence an action in respect of the Guaranteed Obligations against the Administrative AgentBorrower, any other guarantor or any other party or any security for the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees payment and acknowledges that performance of the Guaranteed Obligations. The Guarantor agrees that any notice or directive given at any time to the Agents or any Lender which is inconsistent with the waivers in the preceding two sentences shall be null and void and may be ignored by the Agents or Lender, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waivedand, in reliance upon addition, may not be pleaded or introduced as evidence in any litigation relating to this Guaranty for the reason that such pleading or introduction would be at variance with the written terms of this Guaranty, unless the Agents and all dealings between the Borrower and any Required Lenders have specifically agreed otherwise in writing. The foregoing waivers are of the Guarantorsessence of the transaction contemplated by the Loan Documents and, on but for this Guaranty and such waivers, the one hand, Agents and Lenders would decline to enter into the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this GuarantyCredit Agreement.
Appears in 1 contract
Samples: Unconditional Guaranty Agreement (Insignia Properties Trust /)
Nature of Guaranty. (a) Each The Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(ia) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the Parent, the Borrower or any Guarantor Subsidiary thereof is or may become a party;
(iib) the absence of any action to enforce this Guaranty, the Credit Agreement Agreement, any Term B Note or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan Document;
(iiic) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Guarantor Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty);
(d) any structural change in, restructuring of or other similar change of the Parent, the Borrower or any of its Subsidiaries; or
(ive) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each the Guarantor that, subject to the first sentence of in Section 2.22(b) hereof, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations and Guarantor Obligations. To the termination extent permitted by law, the Guarantor expressly waives all rights it may now or in the future have under any statute (including, without limitation, North Carolina General Statutes Section 26-7, ET SEQ. or similar law), or at law or in equity, or otherwise, to compel the Administrative Agent or any Lender to proceed in respect of the Revolving Credit Commitments.
(b) Each Guarantor representsObligations against the Borrower or any other party or against any security for or other guaranty of the payment and performance of the Guarantor Obligations before proceeding against, warrants or as a condition to proceeding against, the Guarantor. To the extent permitted by law, the Guarantor further expressly waives and agrees not to assert or take advantage of any defense based upon the failure of the Administrative Agent or any Lender to commence an action in respect of the Guarantor Obligations against the Borrower, the Guarantor, any other guarantor or any other party or any security for the payment and performance of the Guarantor Obligations. The Guarantor agrees that its obligations under any notice or directive given at any time to the Administrative Agent or any Lender which is inconsistent with the waivers in the preceding two sentences shall be null and void and may be ignored by the Administrative Agent or such Lender, and, in addition, may not be pleaded or introduced as evidence in any litigation relating to this Guaranty are not and shall not for the reason that such pleading or introduction would be subject to any counterclaims, offsets or defenses at variance with the written terms of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Guarantors, on the one hand, and unless the Administrative Agent and the Lenders, on Required Lenders have specifically agreed otherwise in writing. The foregoing waivers are of the essence of the transaction contemplated by the Credit Agreement and the other handLoan Documents and, likewise shall be conclusively presumed but for this Guaranty and such waivers, the Administrative Agent and Lenders would decline to have been had or consummated in reliance upon this Guarantyenter into the Credit Agreement and the other Loan Documents.
Appears in 1 contract
Samples: Guaranty Agreement (Lecg Corp)
Nature of Guaranty. (a) Each The Guarantor agrees that this Guaranty is a continuing, irrevocable, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) : the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Participation Agreement or any other Loan Document Operative Agreement or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a party;
(ii) ; the absence of any action to enforce this Guaranty, the Credit Participation Agreement or any other Loan Document Operative Agreement or the waiver or consent by the Administrative Agent or any Tranche A Lender with respect to any of the provisions of this Guaranty, the Credit Participation Agreement or any other Loan Document;
(iii) Operative Agreement; the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Tranche A Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(iv) or any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each the Guarantor that, subject to the first sentence of proviso in Section 2.22 hereof, its obligations under this Guaranty shall not be discharged until the final and indefeasible payment and performance, in full, of the Guaranteed Obligations and Obligations. The Guarantor expressly waives all rights it may now or in the termination future have under any statute (including without limitation North Carolina General Statutes Section 26-7 et seq., or similar law), or at law or in equity, or otherwise, to compel the Agent or any Tranche A Lender to proceed in respect of the Revolving Credit Commitments.
(b) Each Guaranteed Obligations against the Borrower or any other party or against any security for or other guaranty of the payment and performance of the Guaranteed Obligations before proceeding against, or as a condition to proceeding against, the Guarantor. The Guarantor represents, warrants further expressly waives and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets assert or defenses take advantage of any kind (other than defense based upon the defense failure of payment) the Agent or any Tranche A Lender to commence an action in respect of the Guaranteed Obligations against the Administrative AgentBorrower, the Lenders Guarantor or any other party or any security for the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees payment and acknowledges that performance of the Guaranteed Obligations. The Guarantor agrees that any notice or directive given at any time to the Agent or any Tranche A Lender which is inconsistent with the waivers in the preceding two sentences shall be null and void and may be ignored by the Agent or such Tranche A Lender, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waivedand, in reliance upon addition, may not be pleaded or introduced as evidence in any litigation relating to this Guaranty for the reason that such pleading or introduction would be at variance with the written terms of this Guaranty, and all dealings between unless the Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the LendersMajority Lenders (as determined with respect to Tranche A Loans only) have specifically agreed otherwise in writing. The foregoing waivers are of the essence of the transaction contemplated by the Operative Agreements and, on but for this Guaranty and such waivers, the other hand, likewise shall be conclusively presumed Agent and Tranche A Lenders would decline to have been had or consummated in reliance upon this Guarantyenter into the Operative Agreements.
Appears in 1 contract
Samples: Unconditional Guaranty Agreement (Lci International Inc /Va/)
Nature of Guaranty. (a) Each Subject to the provision of Section 3 of this Guaranty, the Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that (i) its obligations under with regard to this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) of the genuineness, validity, regularityregularity or enforceability of the Debenture, enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a party;
(ii) the absence of any action to enforce this Guarantythe same, any delays in obtaining or realizing upon (or failures to obtain or realize upon) collateral, the Credit Agreement recovery of any judgment against the Company, any action to enforce the same or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan Document;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(iv) any other action or circumstances which that might otherwise constitute a legal or equitable discharge or defense of a surety guarantor and (ii) this Guaranty will not be discharged except by complete performance of the obligations contained in the Debenture. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or guarantor; bankruptcy of Allied Finance, any right to require a proceeding first against Allied Finance or right to require the prior disposition of the assets of Allied Finance to meet its obligations, protest, notice and all demands whatsoever and covenants that this Guaranty will not be discharged except by complete performance of the obligations contained in the Debenture. If Laidxxx xx required by any court or otherwise to return to either Allied Finance or any trustee or similar official acting with respect to Allied Finance, any amount paid by Allied Finance to Laidxxx, xxis Guaranty, to the extent theretofore discharged, shall be reinstated in full force and effect. The Guarantor agrees that it being agreed by each will not be entitled to any right of subrogation in relation to Laidxxx xx respect of any obligations guaranteed hereby until all such obligations have been paid in full in cash. The Guarantor agrees that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.
(b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.to
Appears in 1 contract
Samples: Stock Purchase Agreement (Allied Waste Industries Inc)
Nature of Guaranty. (a) Each Guarantor agrees that this the Guaranty provided for in Section 7.1 is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this the Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
by (ia) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit this Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a party;
, (iib) the absence of any action to enforce this the Guaranty, the Credit this Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender Bank with respect to any of the provisions of this the Guaranty, the Credit this Agreement or any other Loan Document;
, (iiic) the existence, value or condition of, or failure to perfect its Lien lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender Bank in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
) or (ivd) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, that its obligations under this the Guaranty shall not be discharged until the final and indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.
(b) Facility. Each Guarantor representsexpressly waives all rights it may now or in the future have under any statute (including, warrants without limitation, North Carolina General Statutes Section 26-7, et seq. or similar law), or at law or in equity, or otherwise, to compel the Bank to proceed in respect of the Guaranteed Obligations against Borrower or any other party or against any security for or other guaranty of the payment and performance of the Guaranteed Obligations before proceeding against, or as a condition to proceeding against, the Guarantors. Each Guarantor further expressly waives and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets assert or defenses take advantage of any kind (defense based upon the failure of the Bank to commence an action in respect of the Guaranteed Obligations against Borrower or any other than party or any security for the defense payment and performance of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed Obligations. Each Guarantor agrees that any notice or directive given at any time to the Bank which is inconsistent with the waivers in the preceding two sentences shall be null and void and may be ignored by the Bank, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waivedand, in reliance upon this addition, may not be pleaded or introduced as evidence in any litigation relating to the Guaranty for the reason that such pleading or introduction would be at variance with the written terms of the Guaranty, and all dealings between unless the Borrower and any Bank have specifically agreed otherwise in writing. The foregoing waivers are of the Guarantorsessence of the transaction contemplated by the Loan Documents and, on but for the one handGuaranty and such waivers, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed Bank would decline to have been had or consummated in reliance upon enter into this GuarantyAgreement.
Appears in 1 contract
Samples: Credit Agreement (Commscope Inc)
Nature of Guaranty. (a) Each Guarantor agrees that this This Guaranty Agreement is a continuingintended to be an irrevocable, unconditional absolute, continuing guaranty of payment and performance and is not a guaranty of collection. This Guaranty Agreement may not be revoked by any Guarantor; provided, however, if, according to applicable law, it shall ever be determined or held that a guarantor under a continuing guaranty such as this Guaranty Agreement shall have the absolute right, notwithstanding the express agreement of such a guarantor otherwise, to revoke such guaranty as to Guaranteed Debt which has then not yet arisen, then any Guarantor may deliver to Agent written notice, in addition to giving such notice as provided in SECTION 5.2 hereof, that such Guarantor will not be liable hereunder for any Guaranteed Debt created, incurred, or arising after the giving of such notice, and that its obligations under this Guaranty shall such notice will be primaryeffective as to such Guarantor from and after (but not before) such times as said written notice is actually delivered to, absolute and unconditional, irrespective ofin addition to giving such notice as provided in SECTION 5.2 hereof, and unaffected by:
(i) the genuinenessreceived by and receipted for in writing by Administrative Agent; provided that such notice shall not in anywise affect, validity, regularity, enforceability or any future amendment ofimpair, or change in, limit the Credit Agreement or liability and responsibility of any other Loan Document person or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender entity with respect to any of the provisions of this GuarantyGuaranteed Debt theretofore existing or thereafter existing, the Credit Agreement or any other Loan Document;
(iii) the existencearising, value or condition ofrenewed, extended, or failure to perfect its Lien againstmodified; provided, any security for or other guaranty of the Guaranteed Obligations or any actionfurther, that such notice shall not affect, impair, or release the absence liability and responsibility of any actionsuch Guarantor with respect to Guaranteed Debt created, by the Administrative Agent incurred, or any Lender arising (or in respect of such security any Guaranteed Debt agreed or guaranty (contemplated, in any respect, to be created, whether advanced or not and whether committed to by the Credit Parties or not, including, without limitation, any discretionary advances or extensions of credit which may be made by any Credit Party at its option in the release future under any type of loan or credit agreement, arrangement or undertaking) prior to the receipt of such notice by Administrative Agent as aforesaid, or in respect of any renewals, extensions, or modifications of such security Guaranteed Debt, or guaranty); or
(iv) in respect of interest or costs of collection thereafter accruing on or with respect to such Guaranteed Debt, or with respect to attorneys' fees thereafter becoming payable hereunder with respect to such Guaranteed Debt, and shall continue to be effective with respect to any other action Guaranteed Debt arising or circumstances which might otherwise constitute a legal created after any attempted revocation by any Guarantor. The fact that at any time or equitable discharge from time to time the Guaranteed Debt may be increased, reduced, or defense paid in full shall not release, discharge, or reduce the obligation of a surety Guarantors with respect to indebtedness or guarantor; it being agreed by each Guarantor that, subject obligations of Borrower to the first sentence Credit Parties thereafter incurred (or other Guaranteed Debt thereafter arising) under the Credit Agreement, the Notes, or otherwise. This Guaranty Agreement may be enforced by the Credit Parties and any subsequent holder of Section 2.2, its obligations under this Guaranty the Guaranteed Debt and shall not be discharged until by the final indefeasible payment and performance, in full, assignment or negotiation of all or part of the Guaranteed Obligations and the termination of the Revolving Credit CommitmentsDebt.
(b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 1 contract
Samples: Credit Agreement (Prologis Trust)
Nature of Guaranty. (a) Each The Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
by (ia) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit this Agreement or any other Loan Document or any other agreement, document or instrument to which the any such Borrower or any Guarantor is or may become a party;
, (iib) the absence of any action to enforce this Guaranty, the Credit this Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit this Agreement or any other Loan Document;
, (iiic) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence ab sence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
) or (ivd) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each the Guarantor that, subject to the first sentence of Section 2.2, that its obligations under this Guaranty shall not be discharged until the final and indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.
. The Guarantor expressly waives all rights it may now or in the future have under any statute (b) Each including, without limitation, North Carolina General Statutes Section 26-7, et seq. or similar law), or at law or in equity, or otherwise, to compel the Administrative Agent or any Lender to proceed in respect of the Guaranteed Obligations against any Borrower or any other party or against any security for or other guaranty of the payment and performance of the Guaranteed Obligations before proceeding against, or as a condition to proceeding against, the Guarantor. The Guarantor represents, warrants further expressly waives and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets assert or defenses take advantage of any kind (other than defense based upon the defense failure of payment) against the Administrative Agent, Agent or any Lender to commence an action in respect of the Lenders Guaranteed Obligations against any such Borrower or any other party or any security for the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees payment and acknowledges that performance of the Guaranteed Obligations. The Guarantor agrees that any notice or directive given at any time to the Administrative Agent or any Lender which is inconsistent with the waivers in the preceding two sentences shall be null and void and may be ignored by the Administrative Agent or Lender, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waivedand, in reliance upon addition, may not be pleaded or introduced as evidence in any litigation relating to this Guaranty for the reason that such pleading or introduction would be at variance with the written terms of this Guaranty, and all dealings between the Borrower and any of the Guarantors, on the one hand, and unless the Administrative Agent and the LendersRequired Lenders have specifically agreed otherwise in writing. The foregoing waivers are of the essence of the transaction contemplated by the Loan Documents and, on but for this Guaranty and such waivers, the other hand, likewise shall be conclusively presumed Administrative Agent and Lenders would decline to have been had or consummated in reliance upon enter into this GuarantyAgreement.
Appears in 1 contract
Nature of Guaranty. (a) Each Guarantor agrees that this This Guaranty Agreement is a continuingintended to be an irrevocable, unconditional absolute, continuing guaranty of payment and performance and is not a guaranty of collection. This Guaranty Agreement may not be revoked by any Guarantor; provided, however, if, according to applicable law, it shall ever be determined or held that a guarantor under a continuing guaranty such as this Guaranty Agreement shall have the absolute right, notwithstanding the express agreement of such a guarantor otherwise, to revoke such guaranty as to Guaranteed Debt which has then not yet arisen, then any Guarantor may deliver to Administrative Agent written notice, in addition to giving such notice as provided in SECTION 5.2 hereof, that such Guarantor will not be liable hereunder for any Guaranteed Debt created, incurred, or arising after the giving of such notice, and that its obligations under this Guaranty such notice will be effective as to such Guarantor from and after (but not before) such times as said written notice is actually delivered to, in addition to giving such notice as provided in SECTION 5.2 hereof, and received by and receipted for in writing by Administrative Agent (unless such notice is refused by Administrative Agent in which case such notice shall be primary, absolute and unconditional, irrespective ofeffective when delivered to, and unaffected rejected by:
(i) the genuineness, validityAdministrative Agent); provided that such notice shall not in anywise affect, regularity, enforceability or any future amendment ofimpair, or change in, limit the Credit Agreement or liability and responsibility of any other Loan Document person or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender entity with respect to any of the provisions of this GuarantyGuaranteed Debt theretofore existing or thereafter existing, the Credit Agreement or any other Loan Document;
(iii) the existencearising, value or condition ofrenewed, extended, or failure to perfect its Lien againstmodified; provided, any security for or other guaranty of the Guaranteed Obligations or any actionfurther, that such notice shall not affect, impair, or release the absence liability and responsibility of any actionsuch Guarantor with respect to Guaranteed Debt created, by the Administrative Agent incurred, or any Lender arising (or in respect of such security any Guaranteed Debt agreed or guaranty (contemplated, in any respect, to be created, whether advanced or not and whether committed to by the Credit Parties or not, including, without limitation, any discretionary advances or extensions of credit which may be made by any Credit Party at its option in the release future under any type of loan or credit agreement, arrangement or undertaking) prior to the receipt of such notice by Administrative Agent as aforesaid, or in respect of any renewals, extensions, or modifications of such security Guaranteed Debt, or guaranty); or
(iv) in respect of interest or costs of collection thereafter accruing on or with respect to such Guaranteed Debt, or with respect to attorneys' fees thereafter becoming payable hereunder with respect to such Guaranteed Debt, and shall continue to be effective with respect to any other action Guaranteed Debt arising or circumstances which might otherwise constitute a legal created after any attempted revocation by any Guarantor. The fact that at any time or equitable discharge from time to time the Guaranteed Debt may be increased, reduced, or defense paid in full shall not release, discharge, or reduce the obligation of a surety Guarantors with respect to indebtedness or guarantor; it being agreed by each Guarantor that, subject obligations of Borrower to the first sentence Credit Parties thereafter incurred (or other Guaranteed Debt thereafter arising) under the Credit Agreement, the Notes, or otherwise. This Guaranty Agreement may be enforced by the Credit Parties and any subsequent holder of Section 2.2, its obligations under this Guaranty the Guaranteed Debt and shall not be discharged until by the final indefeasible payment and performance, in full, assignment or negotiation of all or part of the Guaranteed Obligations and the termination of the Revolving Credit CommitmentsDebt.
(b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 1 contract
Nature of Guaranty. (a) Each Guarantor agrees that this This Guaranty Agreement is a continuingcomplete and continuing one. The obligations, unconditional guaranty covenants, agreements and duties of payment and performance and not of collection, and that its obligations Guarantor under this Guaranty Agreement shall be primaryjoint and several with Obligor and each other Guarantor, shall be irrevocable, absolute and unconditional, irrespective ofshall remain in full force and effect until payment in full of the Secured Obligations, and unaffected by:
(i) shall in no way be affected or impaired by reason of the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or happening from time to time of any other Loan Document or any other agreementevent, document or instrument to which the Borrower or any Guarantor is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan Document;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the following, whether or not any such event shall have occurred without notice to or the consent of any Guarantor:
(a) the waiver, compromise, settlement, termination or other release of the performance or observance by any Guarantor, or any other Person liable or to become liable for repayment of the Loan Agreement or the Notes or any or all of such Guarantor’s or other Person’s agreements, covenants, terms or conditions contained in this Guaranty Agreement;
(b) the extension of the time for payment of any of the Secured Obligations or of the time for performance of any obligations, covenants or agreements under or arising out of this Guaranty Agreement or the Loan Documents;
(c) any failure, omission, delay or lack on the part of Administrative Agent and/or Lenders to enforce, assert or exercise any right, power or remedy conferred on Administrative Agent and/or Lenders in the Loan Agreement, the Notes, any Loan Documents or this Guaranty Agreement, or the inability of Administrative Agent and/or Lenders to enforce any provision of this Guaranty Agreement, the Loan Agreement, the Notes or any of the Loan Documents for any reason, or any other act or omission on the part of Administrative Agent, Lenders or any of the holders from time to time of the Notes;
(d) the transfer, assignment or mortgaging, or the purported transfer, assignment or mortgaging, of all or any part of the interest of Obligor or any Guarantor in the Property or any failure of title with respect to the interest of Obligor or any Guarantor in the Property or the invalidity, unenforceability or termination of the Loan Agreement;
(e) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in this Guaranty Agreement, the Loan Agreement, the Notes or the Loan Documents;
(f) the voluntary or involuntary liquidation, dissolution, sale of all or substantially all of the assets, marshalling of assets and liabilities, receivership, conservatorship, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting Obligor or any Guarantor or any of their respective assets or any allegation or contest of the validity of this Guaranty Agreement, the Loan Agreement, the Notes or the Loan Documents;
(g) the release of any Obligor or any Guarantor (or any other Person liable to perform or observe any agreements, covenants, duties or obligations of any of them) from the performance or observance of any of the agreements, covenants, terms or conditions contained in the Loan Agreement, the Notes, any of the Loan Documents or this Guaranty Agreement;
(h) the surrender or impairment of any security for the performance or observance of any of the agreements, covenants, terms and conditions contained in the Loan Agreement, the Notes, the Loan Documents or this Guaranty Agreement;
(i) any failure of Obligor or any Guarantor to perform and observe any agreement or covenant, or to discharge any duty or obligation, arising out of or connected with the Loan Agreement, the Notes, this Guaranty Agreement or the Loan Documents or the occurrence or pendency of any Default or Event of Default thereunder or any proceedings or actions as a result of, or attendant upon, such security Event of Default;
(j) the invalidity or guaranty)unenforceability of any Loan Party’s obligations under any Loan Document or any other agreement or instrument relating thereto;
(k) the taking or the omission of any of the actions referred to in the Loan Agreement, the Notes, any Loan Documents or of any actions under this Guaranty Agreement; or
(ivl) the failure to give notice to any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense Guarantor of the occurrence of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, its obligations default under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, Agreement or of the Guaranteed Obligations occurrence of an Event of Default under the terms and the termination provisions of the Revolving Credit Commitments.
(b) Each Guarantor representsLoan Agreement, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to the Notes or any counterclaimsof the Loan Documents. No set-off, offsets counterclaim, reduction, or defenses diminution of any obligation, or any defense of any kind or nature (other than performance by a Guarantor of such Guarantor’s obligations hereunder), which Obligor may have or assert against a Guarantor or which a Guarantor may have or assert against Obligor or which Obligor may have or assert against Administrative Agent and/or any Lender shall be available hereunder to any Guarantor against Administrative Agent and/or any Lender. In the defense event that, after payment in full of payment) against the Secured Obligations, any payment or payments received thereon are voided or rescinded, whether as a preference in bankruptcy or otherwise, the amount of any such payment shall be deemed to be Secured Obligations covered by this Guaranty Agreement, this Guaranty Agreement shall be immediately deemed revived as to such amounts and Guarantor shall remain liable for the payment of all such amounts, and shall indemnify Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed Obligationseach Lender, and any of themeach Related Party from such amounts, shall conclusively be deemed together with collection costs and other sums due pursuant to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Guaranty, and all dealings between the Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this GuarantyGuaranty Agreement.
Appears in 1 contract
Nature of Guaranty. (a) Each The liability of each Guarantor agrees that this hereunder is independent of and not in consideration of or contingent upon the liability of the Company or any other Obligor, and a separate action or actions may be brought or prosecuted against any Guarantor, whether or not any action is brought or prosecuted against the Company or any other Obligor or whether the Company or any other Obligor is joined in any such action or actions. This Guaranty is shall be construed as a continuing, absolute and unconditional guaranty of payment and performance (and not merely of collection), and that its obligations the liability of each Guarantor under this Guaranty shall be primaryirrevocable, absolute and unconditional, irrespective of, without regard to (and unaffected by:each Guarantor irrevocably waives):
(ia) the genuinenesslegality, validity, regularity, validity or enforceability or any future amendment of, or change inof this Agreement (including this Guaranty), the Credit Agreement Note or any other Loan Document or any other agreementInvestment Document, document or instrument to which the Borrower or any Guarantor is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this GuarantyGuarantied Obligations, the Credit Agreement any Lien or any other Loan Document;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations Collateral or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(iv) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.Other Guaranty;
(b) Each Guarantor representsany defense (other than payment), warrants set-off or counterclaim that may at any time be available to the Company or any other Obligor against, and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaimsright of setoff at any time held by, offsets the Beneficiary;
(c) any acts of commission or defenses omission of any kind (other than gross negligence) at any time on the defense part of paymentthe Beneficiary with respect to any matter whatsoever;
(d) against the Administrative Agentliquidation or dissolution of the Company or any other Obligor, any bankruptcy, insolvency, reorganization, arrangement, assignment for the benefit of creditors, receivership or similar event or proceeding with respect to the Company or any other Obligor, or any action taken by any trustee or receiver of the Company or any other Obligor or by any court or any proceeding with respect to the Company or any other Obligor;
(e) any change of ownership of the Capital Stock of the Company or any other Obligor, or any change in the relationship between any Guarantor and the Company (including the termination of such relationship); or
(f) any other circumstance whatsoever (with or without notice to or knowledge of any Guarantor or any other Obligor), whether or not similar to any of the foregoing, that constitutes, or might be construed to constitute, an equitable or legal discharge of the Company or any other Obligor, in bankruptcy or in any other instance. Any payment by any Obligor or other circumstance that operates to toll any statue of limitations applicable to such Obligor shall also operate to toll the statute of limitations applicable to each Guarantor. When making any demand hereunder (including by commencement or continuance of any legal proceeding), the Lenders Beneficiary may, but shall be under no obligation to, make a similar demand on all or any of the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed Obligationsother Obligors, and any failure by the Beneficiary to make any such demand shall not relieve any Guarantor 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guarantyits obligations hereunder.
Appears in 1 contract
Nature of Guaranty. (a) Each Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Loan Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Guarantor Subsidiary is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Loan Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit Loan Agreement or any other Loan Document;
(iii) the existence, value or condition of, or failure to perfect its any Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(iv) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit CommitmentsObligations.
(b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders Lender or the Borrower Borrower, whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any either of the Guarantors, on the one hand, and the Administrative Agent and the LendersLender, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 1 contract
Samples: Guaranty Agreement (EVCI Career Colleges Holding Corp)
Nature of Guaranty. (a) Each Guarantor hereby acknowledges and agrees that this Guaranty (a) is a continuing, unconditional guaranty of payment and performance not only of collection and not that Guarantor is liable hereunder as a primary obligor (solely with respect to the Guaranteed Recourse Obligations of collectionBorrower), (b) shall only be deemed discharged after the indefeasible satisfaction in full of the Guaranteed Recourse Obligations of Borrower, and that its obligations under this Guaranty (c) shall not be primaryreduced, absolute and unconditionalreleased, irrespective ofdischarged, and unaffected by:
satisfied or otherwise impacted in connection with (i) the genuinenessany act or occurrence that might, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of but for the provisions of this Guarantyhereof, the Credit Agreement or any other Loan Document;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(iv) any other action or circumstances which might otherwise constitute be deemed a legal or equitable reduction, satisfaction, discharge or defense release and/or (ii) Administrative Agent’s or any Lender’s enforcement of a surety remedies under the Loan Documents and (d) shall survive the foregoing and shall not merge with any resulting foreclosure deed, deed in lieu or guarantor; it being agreed by each Guarantor that, similar instrument (if any) but in all cases subject to the first sentence provisions of Section 2.228 hereof. 8. Governing Law; Forum.
(a) THIS GUARANTY WAS NEGOTIATED IN THE STATE OF NEW YORK, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performanceWHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY, in fullAND IN ALL RESPECTS, of the Guaranteed Obligations and the termination of the Revolving Credit CommitmentsINCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AGREEMENT, THE NOTE AND THE OTHER LOAN DOCUMENTS AND THE OBLIGATIONS ARISING HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF GUARANTOR, AND BY 6 ITS ACCEPTANCE OF THIS GUARANTY, ADMINISTRATIVE AGENT AND LENDERS HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS GUARANTY, THE NOTE AND THE OTHER LOAN DOCUMENTS, AND THIS GUARANTY, THE NOTE AND THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW EXCEPT AS SPECIFICALLY SET FORTH ABOVE.
(b) Each Guarantor representsANY LEGAL SUIT, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaimsACTION OR PROCEEDING AGAINST ADMINISTRATIVE AGENT ANY LENDER OR GUARANTOR ARISING OUT OF OR RELATING TO THIS GUARANTY MAY AT ADMINISTRATIVE AGENT’S OPTION BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN THE CITY OF NEW YORK, offsets or defenses of any kind COUNTY OF NEW YORK, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND BORROWER WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. GUARANTOR DOES HEREBY DESIGNATE AND APPOINT: Xxxxxxxx Xxxxxx Xxxxxxx & Xxxxxxx LLP 00 Xxxxxxxxxxx Xxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxx Xxxxx, Esq. AS ITS AUTHORIZED AGENT TO TAKE, RECEIVE AND FORWARD PROCESS ON ITS BEHALF SERVICE OF ANY AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE MAILED OR DELIVERED TO GUARANTOR IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON GUARANTOR, IN ANY SUCH SUIT, ACTION OR PROCEEDING IN THE STATE OF NEW YORK. GUARANTOR (other than the defense of paymentI) against the Administrative AgentSHALL GIVE PROMPT NOTICE TO ADMINISTRATIVE AGENT OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, the Lenders or the Borrower whether now existing or which may arise in the future(II) MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS), AND (III) SHALL PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN OFFICE IN NEW YORK OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 1 contract
Samples: Guaranty of Recourse Obligations (Pacific Oak Strategic Opportunity REIT, Inc.)
Nature of Guaranty. (a) Each The Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its his obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, legality, validity, regularity, enforceability or any future amendment or modification of, or change in, or supplement to, the Credit Agreement or Purchase Agreement, any other Loan Document or any other agreement, document or instrument to which the Borrower Guarantor or any Guarantor Affiliated Entity is or may become a party;
(ii) any action under or in respect of the Purchase Agreement or any other Document, any exercise of any remedy, power or privilege contained therein or available to any party thereto at law, in equity or otherwise, or waiver or refraining from exercising any such remedies, power or privileges (including any manner of application of any sums by whomever paid or however realized to any Guaranteed Obligations owing by the Company, the Guarantor, any other guarantor or any other Person to any Guaranteed Party in such manner as any Guaranteed Party shall determine in its reasonable discretion);
(iii) the absence of any action to enforce this Guaranty, the Credit Purchase Agreement or any other Loan Document or the waiver or consent by the Administrative Agent any Guaranteed Party or any Lender other Person with respect to any of the provisions of this Guaranty, the Credit Purchase Agreement or any other Loan Document;
(iiiiv) the existence, value or condition of, or failure of any Guaranteed Party to perfect its Lien lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent any Guaranteed Party or any Lender other secured party in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty);
(v) any structural change in, restructuring of or other similar organization change of any Affiliated Entity; or
(ivvi) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantorguarantor (other than payment of the Guaranteed Obligations); it being agreed by each the Guarantor that, subject to the first sentence of Section 2.2, its his obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit CommitmentsObligations.
(b) Each The Guarantor represents, warrants and agrees that its the Guaranteed Obligations and his obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower any Guaranteed Party whether now existing or which may arise in the future.
(c) Each The Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 1 contract
Samples: Share Purchase Agreement (Harvest Natural Resources, Inc.)
Nature of Guaranty. (a) Each Guarantor agrees that this This Guaranty Agreement is a continuingintended to be an irrevocable, unconditional absolute, continuing guaranty of payment and performance and is not a guaranty of collection. This Guaranty Agreement may not be revoked by any Guarantor; provided, however, if, according to applicable law, it shall ever be determined or held that a guarantor under a continuing guaranty such as this Guaranty Agreement shall have the absolute right, notwithstanding the express agreement of such a guarantor otherwise, to revoke such guaranty as to Guaranteed Debt which has then not yet arisen, then any Guarantor may deliver to Administrative Agent written notice, in addition to giving such notice as provided in Section 5.2 hereof, that such Guarantor will not be liable hereunder for any Guaranteed Debt created, incurred, or arising after the giving of such notice, and that its obligations under this Guaranty such notice will be effective as to such Guarantor from and after (but not before) such times as said written notice is actually delivered to, in addition to giving such notice as provided in Section 5.2 hereof, and received by and receipted for in writing by Administrative Agent (unless such notice is refused by Administrative Agent in which case such notice shall be primary, absolute and unconditional, irrespective ofeffective when delivered to, and unaffected rejected by:
(i) the genuineness, validityAdministrative Agent); provided that such notice shall not in anywise affect, regularity, enforceability or any future amendment ofimpair, or change in, limit the Credit Agreement or liability and responsibility of any other Loan Document person or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender entity with respect to any of the provisions of this GuarantyGuaranteed Debt theretofore existing or thereafter existing, the Credit Agreement or any other Loan Document;
(iii) the existencearising, value or condition ofrenewed, extended, or failure to perfect its Lien againstmodified; provided, any security for or other guaranty of the Guaranteed Obligations or any actionfurther, that such notice shall not affect, impair, or release the absence liability and responsibility of any actionsuch Guarantor with respect to Guaranteed Debt created, by the Administrative Agent incurred, or any Lender arising (or in respect of such security any Guaranteed Debt agreed or guaranty (contemplated, in any respect, to be created, whether advanced or not and whether committed to by the Credit Parties or not, including, without limitation, any discretionary advances or extensions of credit which may be made by any Credit Party at its option in the release future under any type of loan or credit agreement, arrangement or undertaking) prior to the receipt of such notice by Administrative Agent as aforesaid, or in respect of any renewals, extensions, or modifications of such security Guaranteed Debt, or guaranty); or
(iv) in respect of interest or costs of collection thereafter accruing on or with respect to Exhibit G such Guaranteed Debt, or with respect to attorneys’ fees thereafter becoming payable hereunder with respect to such Guaranteed Debt, and shall continue to be effective with respect to any other action Guaranteed Debt arising or circumstances which might otherwise constitute a legal created after any attempted revocation by any Guarantor. The fact that at any time or equitable discharge from time to time the Guaranteed Debt may be increased, reduced, or defense paid in full shall not release, discharge, or reduce the obligation of a surety Guarantors with respect to indebtedness or guarantor; it being agreed by each Guarantor that, subject obligations of Borrower to the first sentence Credit Parties thereafter incurred (or other Guaranteed Debt thereafter arising) under the Credit Agreement, the Notes, or otherwise. This Guaranty Agreement may be enforced by the Credit Parties and any subsequent holder of Section 2.2, its obligations under this Guaranty the Guaranteed Debt and shall not be discharged until by the final indefeasible payment and performance, in full, assignment or negotiation of all or part of the Guaranteed Obligations and the termination of the Revolving Credit CommitmentsDebt.
(b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 1 contract
Nature of Guaranty. (a) Each The Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its is obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
by (ia) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit this Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a party;
, (iib) the absence of any action to enforce this Guaranty, the Credit Agreement Guaranty or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender SBA with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan Document;
, (iiic) the existence, value or condition of, or failure to perfect its Lien lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender SBA in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
) or (ivd) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each the Guarantor that, subject to the first sentence of Section 2.2, that its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations and Obligations. The Guarantor expressly waives all rights it may now or in the termination future have under any statute or at law or in equity, or otherwise, to compel the SBA to proceed in respect of the Revolving Credit Commitments.
(b) Each Guaranteed Obligations against the Borrower or any other party or against any security for or other guaranty of the payment and performance of the Guaranteed Obligations before proceeding against, or as a condition to proceeding against, the Guarantor. The Guarantor represents, warrants further expressly waives and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets assert or defenses take advantage of any kind (other than defense based upon the defense failure of payment) the SBA to commence an action in respect of the Guaranteed Obligations against the Administrative AgentBorrower, the Lenders Guarantor or any other party or any security for the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees payment and acknowledges that performance of the Guaranteed Obligations. The Guarantor agrees that any notice or directive given at any time by Borrower or Guarantor to the SBA which is inconsistent with the waivers in the preceding two sentences shall be null and void and may be ignored by the SBA, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waivedand, in reliance upon addition, may not be pleaded or introduced as evidence in any litigation relating to this Guaranty for the reason that such pleading or introduction would be at variance with the written terms of this Guaranty, and all dealings between unless the Borrower and any SBA has specifically agreed otherwise in writing. The foregoing waivers are of the Guarantors, on essence of the one hand, and transaction contemplated by the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this GuarantyLoan Documents.
Appears in 1 contract
Nature of Guaranty. (a) Each Guarantor Obligor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or Agreement, any other Loan Document or any Secured Hedging Agreement or any other agreement, document or instrument to which any of the Borrower Obligors or any Guarantor of their respective Subsidiaries is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or Agreement, any other Loan Document or any Secured Hedging Agreement or the waiver or consent by the Administrative Agent or any Lender other Secured Party with respect to any of the provisions of this Guaranty, the Credit Agreement or Agreement, any other Loan DocumentDocument or any Secured Hedging Agreement;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for (including, without limitation, any Collateral) or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender other Secured Party in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(iv) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor Obligor that, subject to the first sentence of in Section 2.22(b), its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit CommitmentsRelease Date shall have occurred.
(b) Each Guarantor Obligor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders other Secured Parties, the Borrowers or the Borrower other Obligors whether now existing or which may arise in the future.
(c) Each Guarantor Obligor hereby agrees and acknowledges that the Guaranteed 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 any Borrower and any of the Guarantorsother Obligors, on the one hand, and the Administrative Agent and the Lendersother Secured Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 1 contract
Samples: Credit Agreement (Geo Group Inc)
Nature of Guaranty. (a) Each Guarantor agrees that this Guaranty Agreement is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty Agreement shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the any Borrower or any Guarantor or any of their respective Subsidiaries or Affiliates is or may become a party;
(ii) the absence of any action to enforce this GuarantyAgreement, the Credit Agreement or Agreement, any other Loan Document Document, Hedging Agreement or Cash Management Agreement, or the waiver or consent by the Administrative Agent or any Lender other Secured Party with respect to any of the provisions of this GuarantyAgreement, the Credit Agreement or any other Loan Document, Hedging Agreement or Cash Management Agreement;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender other Secured Party in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty);
(iv) any structural change in, restructuring of or other similar changes of a Borrower, any Guarantor or any of their respective Subsidiaries or Affiliates; or
(ivv) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty Agreement shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.
(b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty Agreement are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders other Secured Parties or the Borrower Borrowers whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 GuarantyAgreement, and all dealings between the either Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lendersother Secured Parties, on the other hand, likewise shall conclusively be conclusively presumed to have been had or consummated in reliance upon this GuarantyAgreement.
Appears in 1 contract
Nature of Guaranty. (a) Each Guarantor hereby acknowledges and agrees that this Guaranty (a) is a continuing, unconditional guaranty of payment and performance not only of collection and not that Guarantor is liable hereunder as a primary obligor (solely with respect to the Guaranteed Obligations), (b) shall only be deemed discharged after the indefeasible satisfaction in full of collectionthe Guaranteed Obligations, and that its obligations under this Guaranty (c) shall not be primaryreduced, absolute and unconditionalreleased, irrespective ofdischarged, and unaffected by:
satisfied or otherwise impacted in connection with (i) the genuinenessany act or occurrence that might, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of but for the provisions of this Guarantyhereof, the Credit Agreement or any other Loan Document;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(iv) any other action or circumstances which might otherwise constitute be deemed a legal or equitable reduction, satisfaction, discharge or defense release and/or (ii) Administrative Agent’s or any Lender’s enforcement of a surety remedies under the Loan Documents and (d) shall survive the foregoing and shall not merge with any resulting foreclosure deed, deed in lieu or guarantor; it being agreed by each Guarantor thatsimilar instrument (if any), but in all cases subject to the first sentence provisions of Section 2.230 hereof. 8. Governing Law; Forum.
(a) THIS GUARANTY WAS NEGOTIATED IN THE STATE OF NEW YORK, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performanceWHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY, in fullAND IN ALL RESPECTS, of the Guaranteed Obligations and the termination of the Revolving Credit CommitmentsINCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AGREEMENT, THE NOTE AND THE OTHER LOAN DOCUMENTS AND THE OBLIGATIONS ARISING HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA. TO THE 6 FULLEST EXTENT PERMITTED BY LAW, EACH OF GUARANTOR, AND BY ITS ACCEPTANCE OF THIS GUARANTY, ADMINISTRATIVE AGENT AND LENDERS HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS GUARANTY, THE NOTE AND THE OTHER LOAN DOCUMENTS, AND THIS GUARANTY, THE NOTE AND THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW EXCEPT AS SPECIFICALLY SET FORTH ABOVE.
(b) Each Guarantor representsANY LEGAL SUIT, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaimsACTION OR PROCEEDING AGAINST ADMINISTRATIVE AGENT ANY LENDER OR GUARANTOR ARISING OUT OF OR RELATING TO THIS GUARANTY MAY AT ADMINISTRATIVE AGENT’S OPTION BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN THE CITY OF NEW YORK, offsets or defenses of any kind COUNTY OF NEW YORK, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND BORROWER WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. GUARANTOR DOES HEREBY DESIGNATE AND APPOINT: Xxxxxxxx Xxxxxx Xxxxxxx & Xxxxxxx LLP 00 Xxxxxxxxxxx Xxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxx Xxxxx, Esq. AS ITS AUTHORIZED AGENT TO TAKE, RECEIVE AND FORWARD PROCESS ON ITS BEHALF SERVICE OF ANY AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE MAILED OR DELIVERED TO GUARANTOR IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON GUARANTOR, IN ANY SUCH SUIT, ACTION OR PROCEEDING IN THE STATE OF NEW YORK. GUARANTOR (other than the defense of paymentI) against the Administrative AgentSHALL GIVE PROMPT NOTICE TO ADMINISTRATIVE AGENT OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, the Lenders or the Borrower whether now existing or which may arise in the future(II) MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS), AND (III) SHALL PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN OFFICE IN NEW YORK OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 1 contract
Samples: Funding Guaranty (Pacific Oak Strategic Opportunity REIT, Inc.)
Nature of Guaranty. (a) Each Guarantor agrees that this This Guaranty Agreement is a continuingintended to be an irrevocable, unconditional absolute, continuing guaranty of payment and performance and is not a guaranty of collection. This Guaranty Agreement may not be revoked by any Guarantor; provided, however, if, according to applicable Legal Requirements, it shall ever be determined or held that a guarantor under a continuing guaranty such as this Guaranty Agreement shall have the absolute right, notwithstanding the express agreement of such a guarantor otherwise, to revoke such guaranty as to Guaranteed Debt which has then not yet arisen, then any Guarantor may deliver to Administrative Agent written notice, in addition to giving such notice as provided in Section 5.2 hereof, that such Guarantor will not be liable hereunder for any Guaranteed Debt created, incurred, or arising after the giving of such notice, and that its obligations under this Guaranty shall such notice will be primaryeffective as to such Guarantor from and after (but not before) such times as said written notice is actually delivered to, absolute and unconditional, irrespective ofin addition to giving such notice as provided in Section 5.2 hereof, and unaffected by:
(i) the genuinenessreceived by and receipted for in writing by Administrative Agent; provided that such notice shall not in anywise affect, validity, regularity, enforceability or any future amendment ofimpair, or change in, limit the Credit Agreement or liability and responsibility of any other Loan Document person or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender entity with respect to any of the provisions of this GuarantyGuaranteed Debt theretofore existing or thereafter existing, the Credit Agreement or any other Loan Document;
(iii) the existencearising, value or condition ofrenewed, extended, or failure to perfect its Lien againstmodified; provided, any security for or other guaranty of the Guaranteed Obligations or any actionfurther, that such notice shall not affect, impair, or release the absence liability and responsibility of any actionsuch Guarantor with respect to Guaranteed Debt created, by the Administrative Agent incurred, or any Lender arising (or in respect of such security any Guaranteed Debt agreed or guaranty (contemplated, in any respect, to be created, whether advanced or not and whether committed to by the Loan Parties or not, including, without limitation, any discretionary advances or extensions of credit which may be made by any Loan Party at its option in the release future under any type of loan or credit agreement, arrangement, or undertaking) prior to the receipt of such notice by Administrative Agent as aforesaid, or in respect of any renewals, extensions, or modifications of such security Guaranteed Debt, or guaranty); or
(iv) in respect of interest or costs of collection thereafter accruing on or with respect to such Guaranteed Debt, or with respect to attorneys' fees thereafter becoming payable hereunder with respect to such Guaranteed Debt, and shall continue to be effective with respect to any other action Guaranteed Debt arising or circumstances which might otherwise constitute a legal created after any attempted revocation by any Guarantor. The fact that at any time or equitable discharge from time to time the Guaranteed Debt may be increased, reduced, or defense paid in full shall not release, discharge, or reduce the obligation of a surety Guarantors with respect to indebtedness or guarantor; it being agreed by each Guarantor that, subject obligations of Borrower to the first sentence Loan Parties thereafter incurred (or other Guaranteed Debt thereafter arising) under the Credit Agreement, the Notes, or otherwise. This Guaranty Agreement may be enforced by the Loan Parties and any subsequent holder of Section 2.2, its obligations under this Guaranty the Guaranteed Debt and shall not be discharged until by the final indefeasible payment and performance, in full, assignment or negotiation of all or part of the Guaranteed Obligations and the termination of the Revolving Credit CommitmentsDebt.
(b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 1 contract
Samples: Credit Agreement (Trammell Crow Co)
Nature of Guaranty. (a) Each Subsidiary Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by, and each Subsidiary Guarantor hereby irrevocably waives, to the extent not prohibited by Applicable Law, any defenses to enforcement it may have (now or in the future) by reason of:
(i) the genuineness, legality, validity, regularity, enforceability or any future amendment of, or change in, or supplement to, the Credit Agreement, any other Loan Document, any Cash Management Agreement or any other Loan Document Hedge Agreement or any other agreement, document or instrument to which the Borrower either Borrower, any Subsidiary Guarantor or any Guarantor of their respective Subsidiaries or Affiliates is or may become a party, (including any change in the time, place or manner of payment of, or in any other term of, the Obligations or any other obligation of any Credit Party under any Loan Document, or any rescission, waiver, amendment or other modification of any Loan Document or any other agreement, including any increase in the Secured Obligations resulting from any extension of additional credit or otherwise);
(ii) any action under or in respect of the Credit Agreement, any other Loan Document, any Cash Management Agreement or any Hedge Agreement in the exercise of any remedy, power or privilege contained therein or available to any of them at law, in equity or otherwise, or waiver or refraining from exercising any such remedies, powers or privileges (including any manner of sale, disposition or any application of any sums by whomever paid or however realized to any Guaranteed Obligations owing by either Borrower, any Subsidiary Guarantor, any other guarantor or any other Person to the Administrative Agent or any other Secured Party in such manner as the Administrative Agent or any other Secured Party shall determine in its reasonable discretion);
(iii) the absence of any action to enforce this Guaranty, the Credit Agreement, any other Loan Document, any Cash Management Agreement or any other Loan Document Hedge Agreement or the waiver or consent by the Administrative Agent or any Lender other Secured Party with respect to any of the provisions of this Guaranty, the Credit Agreement or Agreement, any other Loan Document, any Cash Management Agreement or any Hedge Agreement;
(iiiiv) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender other Secured Party in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or;
(ivv) any structural change in, restructuring of or other similar organizational change of either Borrower, any Subsidiary Guarantor, any other guarantors or any of their respective Subsidiaries or Affiliates;
(vi) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; or
(vii) any other circumstance (including, without limitation, any statute of limitations) or manner of administering the Loans or any existence of or reliance on any representation by any Secured Party that might vary the risk of any guarantor or otherwise operate as a defense available to, or a legal or equitable discharge of, any Credit Party or any other guarantor or surety; it being agreed by each Subsidiary Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations (other than (1) contingent indemnification obligations, (2) obligations and liabilities under Secured Cash Management Agreements or Secured Hedge Agreements as to which arrangements satisfactory to the applicable Cash Management Bank or Hedge Bank shall have been made and (3) Letters of Credit that have either been Cash Collateralized or as to which arrangements satisfactory to the Issuing Lender have been made) and the termination of the Revolving Credit Commitments.
(b) Each Subsidiary Guarantor represents, warrants and agrees that the Guaranteed Obligations and its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders other Secured Parties or the Borrower Borrowers whether now existing or which may arise in the future.
(c) Each Subsidiary Guarantor hereby agrees and acknowledges that the Guaranteed 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 among the Borrower Borrowers and any of the Subsidiary Guarantors, on the one hand, and the Administrative Agent and the Lendersother Secured Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 1 contract
Nature of Guaranty. (a) Each Guarantor agrees that this This Guaranty is a continuing, unconditional guaranty of payment and performance of the Guaranteed Obligation when due and not of collection, and that its collection or collectibility thereof. The obligations of each Guarantor under this Guaranty shall be primary, absolute and unconditional, irrespective ofare independent of the Guaranteed Obligation, and unaffected by:
(i) the genuineness, validity, regularity, enforceability a separate action or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any actions may be brought and prosecuted against each Guarantor is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement irrespective of whether any action is brought against Parent, Merger Sub, any other Guarantor or other guarantor or any other Loan Document Person or whether Parent, Merger Sub, any other Guarantor or other guarantor or any other Person is joined in any such action or actions. The liability of each Guarantor under this Guaranty shall (a) be joint and several with each other Guarantor, (b) be irrevocable, absolute, and unconditional, (c) remain in full force and effect until consummation of the transactions contemplated by the Merger Agreement, and (d) in no way be affected or impaired by reason of, and each Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to, the happening from time to time of any other event, including, without limitation, any one or more of the following:
(a) any failure, omission, or delay on the part of STR to enforce, assert or exercise any right, power, or remedy conferred in the Merger Agreement or this Guaranty, or the waiver inability of STR to enforce any provision of this Guaranty or consent by the Administrative Agent Merger Agreement, or any Lender with respect to other act or omission on the part of STR;
(b) the extension of time for the payment or performance of the Guaranteed Obligation or of the time for performance of any obligation, covenant, or agreement arising under this Guaranty;
(c) the modification or amendment of the Guaranteed Obligation or the modification or amendment of any obligation, covenant, or agreement set forth in this Guaranty;
(d) the disability, voluntary or involuntary liquidation, dissolution, sale of all or substantially all of the assets, marshalling of assets and liabilities, receivership, conservatorship, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting Parent or Merger Sub or any of their respective assets or any allegation or contest of the validity of this Guaranty or the Merger Agreement;
(e) the release of Parent or Merger Sub from the performance or observance of any of the provisions agreements, covenants, terms, or conditions contained in the Merger Agreement, or the release of any other Guarantor from the performance or observance of any of the agreements, covenants, terms, or conditions contained in this Guaranty, the Credit Agreement or any other Loan Document;
(iiif) any failure of Parent or Merger Sub to perform and observe any agreement or covenant, or to discharge any duty or obligation, arising out of or connected with the existenceMerger Agreement or the occurrence, value of any breach or condition default thereunder or any proceedings or actions as a result of, or attendant upon, such breach or default;
(g) the taking or the omission by Parent or Merger Sub of any action referred to in the Merger Agreement or of any action under this Guaranty;
(h) the failure to perfect its Lien againstgive notice to Guarantors, or any of them, of the occurrence of a breach or default under this Guaranty or of the occurrence of a breach or default under the Merger Agreement;
(i) any taking, release or non-perfection of any lien or collateral security for or other guaranty interest to secure payment of the Guaranteed Obligations Obligation or the obligation of any guarantor thereof, including any Guarantor, or any actiontaking, release or amendment or waiver of any other guaranty for all or any part of the Guaranteed Obligation;
(j) any action or omission by any Guarantor, Parent or Merger Sub that impairs or destroys any right to reimbursement from Parent or Merger Sub, or right to contribution by any other Guarantor, or right to subrogation to the absence rights of STR, that any action, by the Administrative Agent Guarantor has or any Lender might have in respect of such security any payment made or guaranty that might be made by it hereunder in respect of the Guaranteed Obligation, or
(k) the existence of any other fact or the existence or occurrence of any other circumstance (including, without limitation, the release expiration of any such security or guaranty); or
(ivstatute of limitations) any other action or circumstances which that might otherwise constitute a legal defense available to, or equitable a discharge of, or defense exonerate, a guarantor or surety in respect of a surety or guarantor; the Guaranteed Obligation (it being understood and agreed by each Guarantor that, subject that any claim which Parent or Merger Sub might have to the first sentence of Section 2.2, its effect that the Termination Fee is not in fact payable under the Merger Agreement may be asserted by the Guarantors in any action to enforce their obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit CommitmentsGuaranty).
(b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 1 contract
Samples: Agreement and Plan of Merger (STR Holdings (New) LLC)
Nature of Guaranty. Continuing, Absolute and --------------------------------------------- Unconditional. --------------
(a) Each Guarantor agrees that this This Guaranty is and is intended to be a continuing, unconditional continuing guaranty of payment of the Obligations, independent of and performance and in addition to any other guaranty, endorsement, collateral or other agreement held by Agent or the Lenders therefor or with respect thereto, whether or not furnished by the Guarantors. The obligations of collection, and that its obligations under this Guaranty the Guarantors to repay the Obligations hereunder shall be primary, absolute and unconditional, irrespective of, and unaffected by:unlimited.
(ib) Until the genuinenessObligations have been paid in full, validitythe Guarantors shall have no right, regularityclaim or remedy of subrogation, enforceability reimbursement, contribution or any future amendment of, or change in, the Credit Agreement similar rights against Borrower or any other Loan Document or guarantor with respect to the Obligations and hereby waive any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a party;
(ii) the absence of any action right to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative remedy which Agent or any Lender now has or may hereafter have against Borrower, any endorser or any other guarantor of all or any part of the Obligations, and the Guarantors hereby waive any benefit of, and any right to participate in, any security or collateral given to Agent, on behalf of the Lenders, to secure payment of the Obligations or any part thereof or any other liability of Borrower to Agent or the Lenders. If any amount shall be paid to the Guarantors on account of any payment made hereunder at any time when the Obligations shall not have been paid in full, such amount shall be held in trust for the benefit of Agent and the Lenders and shall forthwith be paid to Agent to be credited and applied, whether the Obligations are matured or unmatured, in accordance with the terms of the Credit Agreement. The Guarantors authorize Agent, on behalf of the Lenders, to take any action or exercise any remedy with respect to any the Collateral which Agent, on behalf of the provisions Lenders, in its sole discretion shall determine, without notice to the Guarantors. The Guarantors further agree that any and all claims of this Guarantyany Guarantor against Borrower, the Credit Agreement any endorser or any other Loan Document;
(iii) guarantor of all or any part of the existence, value or condition ofObligations, or failure against any of their respective properties, whether arising by reason of any payment by any Guarantor to perfect its Lien againstAgent, any security for or other guaranty on behalf of the Guaranteed Obligations or any actionLenders, pursuant to the provisions hereof, or the absence otherwise, shall be subordinate and subject in right of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(iv) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject payment to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performanceprior payment, in full, of the Guaranteed Obligations any and the termination all principal and interest, all fees, all reasonable costs of the Revolving Credit Commitments.
collection (bincluding reasonable attorneys' fees and time charges) Each Guarantor represents, warrants and agrees that its any other liabilities or obligations under this Guaranty are not and shall not be subject owing to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the by Borrower whether now existing or which may arise either with respect to or on any note, instrument, document, item, agreement or other writing heretofore, now or hereafter delivered to any Lender or Agent. In the event Agent, on behalf of the Lenders, in its sole discretion elects to give notice of any action with respect to the futureCollateral securing the Obligations or any part thereof, ten (10) days' written notice mailed to the Guarantors by ordinary mail at the address shown hereon shall be deemed reasonable notice of any matters contained in such notice. The Guarantors consent and agree that Agent, on behalf of the Lenders, shall be under no obligation to xxxxxxxx any assets in favor of the Guarantors or against or in payment of any or all of the Obligations.
(c) Each Guarantor hereby agrees For the further security of the Lenders and acknowledges that without in any way diminishing the Guaranteed 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 Borrower and any liability of the Guarantors, on following the one handoccurrence of an Event of Default and acceleration of the Obligations of Borrower, all debts and liabilities, present or future of Borrower to any Guarantor and all monies received from Borrower or for its account by any Guarantor in respect thereof shall be received in trust for the Administrative Agent Lenders and forthwith upon receipt shall be paid over to Agent, for the benefit of the Lenders, until all of such Obligations have been paid in full.
(d) This Guaranty and the Guarantors' obligations hereunder are absolute and unconditional and shall not be changed or affected by any representation, oral agreement, act or thing whatsoever, except as herein provided. This Guaranty is intended by the Guarantors to be the final, complete and exclusive expression of the guaranty agreement between the Guarantors and Agent, on behalf of the other hand, likewise Lenders. No modification or amendment of any provision of this Guaranty shall be conclusively presumed to have been had or consummated effective unless in reliance upon this Guarantywriting and signed by a duly authorized officer of Agent, on its behalf and the ratable benefit of the Lenders.
Appears in 1 contract
Nature of Guaranty. (a) Each Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that to the extent permitted by Applicable Law, its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by, and each Guarantor hereby irrevocably waives, to the extent not prohibited by Applicable Law, any defenses to enforcement it may have (now or in the future) by reason of:
(i) the genuineness, legality, validity, regularity, enforceability or any future amendment of, or change in, or supplement to, the Credit Agreement, any other Loan Document, any Secured Cash Management Agreement or any other Loan Document Secured Hedge Agreement or any other agreement, document or instrument to which the Borrower Borrower, any Guarantor or any Guarantor of their respective Subsidiaries or Affiliates is or may become a party, (including any increase in the Guaranteed Obligations resulting from any extension of additional credit or otherwise);
(ii) any action under or in respect of the Credit Agreement, any other Loan Document, any Secured Cash Management Agreement or any Secured Hedge Agreement in the exercise of any remedy, power or privilege contained therein or available to any of them at law, in equity or otherwise, or waiver or refraining from exercising any such remedies, powers or privileges (including any change in the time, place or manner of payment of, or in any other term of, the Guaranteed Obligations or any other obligation of any Credit Party under any Loan Document, any Secured Cash Management Agreement, any Secured Hedge Agreement or any rescission, waiver, amendment or other modification of any Loan Document or any other agreement, including any increase in the Guaranteed Obligations resulting from any extension of additional credit or otherwise);
(iii) the absence of any action to enforce this Guaranty, the Credit Agreement, any other Loan Document, any Secured Cash Management Agreement or any other Loan Document Secured Hedge Agreement or the waiver or consent by the Administrative Agent or any Lender other Secured Party with respect to any of the provisions of this Guaranty, the Credit Agreement or Agreement, any other Loan Document, any Secured Cash Management Agreement or any Secured Hedge Agreement;
(iiiiv) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender other Secured Party in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or;
(ivv) any structural change in, restructuring of or other similar organizational change of the Borrower, any Guarantor, any other guarantors or any of their respective Subsidiaries or Affiliates;
(vi) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; or
(vii) any other circumstance (including, without limitation, any statute of limitations) or manner of administering the Loans or any existence of or reliance on any representation by any Secured Party that might vary the risk of any guarantor or otherwise operate as a defense available to, or a legal or equitable discharge of, any Credit Party or any other guarantor or surety; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations (other than (1) contingent indemnification obligations, (2) Secured Cash Management Obligations or Secured Hedge Obligations as to which arrangements satisfactory to the applicable holders thereof shall have been made and (3) Letters of Credit that have either been Cash Collateralized or as to which arrangements satisfactory to the Issuing Lender have been made) and the termination of the Revolving Credit Commitments.
(b) Each Guarantor represents, warrants and agrees that to the extent permitted by Applicable Law the Guaranteed Obligations and its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of paymentpayment or performance) against the Administrative Agent, the Lenders other Secured Parties, any Guarantor or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 among the Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lendersother Secured Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 1 contract
Samples: Guaranty Agreement (RealPage, Inc.)
Nature of Guaranty. (a) Each Subsidiary Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(ia) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the either Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the any Borrower or any Guarantor Subsidiary thereof is or may become a party;
(iib) any structural change in, restructuring of or other similar change of any Borrower or any of their Subsidiaries (including, without limitation, each Subsidiary Guarantor);
(c) the absence of any action to enforce this Guaranty, the either Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the either Credit Agreement or any other Loan Document;
(iiid) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(ive) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Subsidiary Guarantor that, subject to the first sentence of proviso in Section 2.22 hereof, its obligations under this Guaranty shall not be discharged until the final and indefeasible payment and performanceperfor mance, in full, of the Guaranteed Guaxxxxxed Obligations and the termination of the Revolving Credit Commitments.
(b) Each . To the extent permitted by law, each Subsidiary Guarantor representsexpressly waives all rights it may now or in the future have under any statute, warrants or at law or in equity, or otherwise, to compel the Administrative Agent or any Lender to proceed in respect of the Guaranteed Obligations against any Borrower or any other party or against any security for or other guaranty of the payment and perfor mance of the Guaranteed Obxxxxxions before proceeding against, or as a condition to proceeding against, such Subsidiary Guarantor. To the extent permitted by law, each Subsidiary Guarantor further expressly waives and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets assert or defenses take advantage of any kind (other than defense based upon the defense failure of payment) against the Administrative AgentAgent or any Lender to commence an action in respect of the Guaranteed Obligations against any Borrower, such Subsidiary Guarantor, any other guarantor or any other party or any security for the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees payment and acknowledges that performance of the Guaranteed Obligations. Each Subsidiary Guarantor agrees that any notice or directive given at any time to the Administrative Agent or any Lender which is inconsistent with the waivers in the preceding two sentences shall be null and void and may be ignored by the Administrative Agent or Lender, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waivedand, in reliance upon addi tion, may not be pleaded or introduced as evidence in any litigation relating to this Guaranty for the reason that such pleading or introduction would be at variance with the written terms of this Guaranty, and all dealings between the Borrower and any of the Guarantors, on the one hand, and unless the Administrative Agent and the LendersRequired Lenders have specifically agreed otherwise in writing. The foregoing waivers are of the essence of the transaction contemplated by the Loan Documents and, on but for this Guaranty and such waivers, the other hand, likewise shall be conclusively presumed Administrative Agent and Lenders would decline to have been had or consummated in reliance upon this Guarantyenter into the Credit Agreements.
Appears in 1 contract
Nature of Guaranty. (a) Each The liability and obligation of Guarantor agrees that this Guaranty is a continuinghereunder shall, unconditional guaranty whether or not Guarantor shall have notice or knowledge of payment and performance and not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guarantyfollowing, the Credit Agreement remain in full force and effect without regard to, and shall not be affected or released, discharged or in any other Loan Document;
(iii) the existence, value way affected or condition of, or failure to perfect its Lien againstimpaired by, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(iv) any other action or circumstances circumstance whatsoever which might otherwise constitute a legal or equitable discharge or defense of a surety guarantor or surety, including, but not limited to, (a) any amendment or modification of, or supplement to, or extension or renewal of, any of the Loan Documents or any assignment or transfer thereof or of any interest therein without the consent of Guarantor; (b) any exercise, delay in exercising or non-exercise of any right, power, remedy or privilege under or in respect of the Loan Documents or this Agreement, or any security held by NCBDC with respect thereto, or any waiver, consent or approval by NCBDC with respect to any of the covenants, terms, conditions or agreements contained in the Loan Documents or any indulgences, forbearances or extensions of time for performance or observance allowed to Borrower, from time to time and for any length of time; (c) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding relating to Borrower, or Guarantor, or any other Guarantor, if there be more than one, or its or their properties or creditors; (d) any limitation on the liability or obligation of Borrower under the Loan Documents or its or their estate in bankruptcy, any remedy for the enforcement thereof, which may now or hereafter be imposed by any statute, regulation, rule of law or decision of any court; (e) any illegality, invalidity, irregularity or unenforceability, in whole or in part, of the Loan Documents or any term, condition or provision thereof; (f) any substitution, exchange, surrender, subordination, addition to or release, in whole or in part, of any security for the Loan Documents or this Agreement which may be held at any time by NCBDC; (g) The making of advances by NCBDC for the purpose of performing any term or covenant contained in any of the Loan Documents with respect to which the Borrower or the then owner of the Property shall be in default; or (h) engage in any other act or permit any other circumstance or condition which might otherwise constitute a legal or equitable release or discharge of a guarantor; it being agreed by each . The obligations and liability of the Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty Agreement shall be primary, direct and immediate; shall not be discharged until conditional or contingent upon pursuit by NCBDC of any remedies it may have against the final indefeasible payment and performanceBorrower with respect to the Loan Documents, in fullwhether pursuant to the terms thereof or by law, of or against any other Guarantor, if there be more than one, with respect to this Agreement, whether pursuant to the Guaranteed Obligations and the termination of the Revolving Credit Commitments.
(b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not terms hereof or by law; and shall not be subject to any counterclaimscounterclaim, offsets recoupment, set-off, reduction or defenses of defense based upon any kind (other than the defense of payment) claim that any Guarantor may have against the Administrative AgentBorrower, NCBDC or any other Guarantor, if there be one. Without limiting the Lenders generality of the foregoing, NCBDC shall not be required to make any demand on the Borrower and/or the then owner of the Property, or against any other Guarantor, if there be more than one, or to sell at foreclosure or otherwise pursue or exhaust its remedies against the Property or any part thereof and/or against the Borrower or the Borrower whether now existing or which may arise in then owner of the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurredProperty, or renewedagainst any other Guarantor, extended, amended or waived, in reliance upon this Guaranty, and all dealings between the Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall if there be conclusively presumed to have been had or consummated in reliance upon this Guaranty.more than one,
Appears in 1 contract
Nature of Guaranty. (a) Each Guarantor agrees that this This Guaranty is constitutes a continuing, unconditional guaranty of payment and performance when due and not merely of collection, and that its . The Guarantor's obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender hereunder with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan Document;
(iii) Obligation shall not be affected by the existence, value validity, enforceability, perfection or condition ofextent of any collateral for such Obligation, any change in or amendment to the Purchase Agreements or the LLC Agreements, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(iv) any other action or circumstances which relating to such Obligation that might otherwise constitute a legal or equitable discharge of or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty Guarantor not available to MHSI. The Guarantied Party shall not be discharged until obligated to file any claim relating to the final indefeasible payment and performance, Obligations in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.
(b) Each Guarantor represents, warrants and agrees event that its obligations under this Guaranty are not and shall not be MHSI becomes subject to any counterclaimsa bankruptcy, offsets reorganization or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Guarantors, on the one handsimilar proceeding, and the Administrative Agent failure of the Guarantied Party to so file shall not affect the Guarantor's obligations hereunder. In the event that any payment by MHSI in respect of any Obligations is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to such Obligations as if such payment had not been made. The Guarantor reserves the right to assert defenses which MHSI may have to the payment of any Obligation other than defenses (A) arising from the bankruptcy or insolvency of MHSI, (B) based on (1) the corporate or limited liability company status of MHSI, (2) the power and authority of MHSI to enter into the LendersPurchase Agreements and/or the LLC Agreements and to perform its obligations thereunder or (3) the legality, validity and enforceability of MHSI's obligations under the Purchase Agreements and/or the LLC Agreements, including any amendments thereto (except to the extent relating to any action taken or omitted to be taken on the other hand, likewise part of the Guarantied Party in violation of the LLC Agreements or the Purchase Agreements as otherwise permitted hereunder) or (C) expressly waived hereby. The Guarantor shall be conclusively presumed not have the right to have been had set-off against any payment owing hereunder any amounts owing by the Guarantied Party or consummated in reliance upon this Guarantythe Buyer Parent pursuant to the Transaction Documents.
Appears in 1 contract
Nature of Guaranty. (a) Each Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or Agreement, any other Loan Document Document, any Secured Hedge Agreement, any Secured Cash Management Agreement or any other agreement, document or instrument to which the Borrower Borrower, any Guarantor or any Guarantor of their respective Subsidiaries or Affiliates is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or Agreement, any other Loan Document Document, Secured Hedge Agreement or Secured Cash Management Agreement or the waiver or consent by the Administrative Agent or any Lender other Secured Party with respect to any of the provisions of this Guaranty, the Credit Agreement or Agreement, any other Loan Document, Secured Hedge Agreement or Secured Cash Management Agreement;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations Liabilities or any action, or the absence of any action, by the Administrative Agent or any Lender other Secured Party in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty);
(iv) any structural change in, restructuring of or other similar organizational change of the Borrower, any Guarantor, any other guarantors or any of their respective Subsidiaries or Affiliates; or
(ivv) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations and Liabilities (other than contingent obligations not then due), the termination of the Revolving Credit CommitmentsCommitments and the termination or expiration (or Cash Collateralization) of the Letters of Credit.
(b) Each Guarantor represents, warrants and agrees that the Guaranteed Liabilities and its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders other Secured Parties or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed ObligationsLiabilities, 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lendersother Secured Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 1 contract
Samples: Credit Agreement (Cirrus Logic Inc)
Nature of Guaranty. (a) Each Guarantor hereby acknowledges and agrees that this Guaranty (a) is a continuing, unconditional guaranty of payment and performance and not only of collection, collection and that its obligations under this Guaranty Guarantor is liable hereunder as a primary obligor (solely with respect to the Guaranteed Obligations), (b) shall only be primarydeemed discharged after the indefeasible satisfaction in full of the Guaranteed Obligations, absolute and unconditional(c) shall not be reduced, irrespective ofreleased, and unaffected by:
discharged, satisfied or otherwise impacted in connection with (i) the genuinenessany act or occurrence that might, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of but for the provisions of this Guarantyhereof, the Credit Agreement or any other Loan Document;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(iv) any other action or circumstances which might otherwise constitute be deemed a legal or equitable reduction, satisfaction, discharge or defense release and/or (ii) Administrative Agent’s or any Lender’s enforcement of a surety remedies under the Loan Documents and (d) shall survive the foregoing and shall not merge with any resulting foreclosure deed, deed in lieu or guarantor; it being agreed by each Guarantor that, similar instrument (if any) but in all cases subject to the first sentence provisions of Section 2.229 hereof. 9. Governing Law; Forum.
(a) THIS GUARANTY WAS NEGOTIATED IN THE STATE OF NEW YORK, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performanceWHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY, in fullAND IN ALL RESPECTS, of the Guaranteed Obligations and the termination of the Revolving Credit CommitmentsINCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AGREEMENT, THE NOTE AND THE OTHER LOAN DOCUMENTS AND THE OBLIGATIONS ARISING HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF GUARANTOR, AND BY ITS ACCEPTANCE OF THIS GUARANTY, ADMINISTRATIVE AGENT AND LENDERS HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS GUARANTY, THE NOTE AND THE OTHER LOAN DOCUMENTS, AND THIS GUARANTY, THE NOTE AND THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW EXCEPT AS SPECIFICALLY SET FORTH ABOVE.
(b) Each Guarantor representsANY LEGAL SUIT, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaimsACTION OR PROCEEDING AGAINST ADMINISTRATIVE AGENT ANY LENDER OR GUARANTOR ARISING OUT OF OR RELATING TO THIS GUARANTY MAY AT ADMINISTRATIVE AGENT’S OPTION BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN THE CITY OF NEW YORK, offsets or defenses of any kind COUNTY OF NEW YORK, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND BORROWER WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. GUARANTOR DOES HEREBY DESIGNATE AND APPOINT: Xxxxxxxx Xxxxxx Xxxxxxx & Xxxxxxx LLP 00 Xxxxxxxxxxx Xxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxx Xxxxx, Esq. AS ITS AUTHORIZED AGENT TO TAKE, RECEIVE AND FORWARD PROCESS ON ITS BEHALF SERVICE OF ANY AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE MAILED OR DELIVERED TO GUARANTOR IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON GUARANTOR, IN ANY SUCH SUIT, ACTION OR PROCEEDING IN THE STATE OF NEW YORK. GUARANTOR (other than the defense of paymentI) against the Administrative AgentSHALL GIVE PROMPT NOTICE TO ADMINISTRATIVE AGENT OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, the Lenders or the Borrower whether now existing or which may arise in the future(II) MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS), AND (III) SHALL PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN OFFICE IN NEW YORK OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR. 10.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 1 contract
Samples: Completion Guaranty (Pacific Oak Strategic Opportunity REIT, Inc.)
Nature of Guaranty. (a) Each The Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
by (ia) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit this Agreement or any other Loan Document or any other agreement, document or instrument to which the any such Borrower or any Guarantor is or may become a party;
, (iib) the absence of any action to enforce this Guaranty, the Credit this Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit this Agreement or any other Loan Document;
, (iiic) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
) or (ivd) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each the Guarantor that, subject to the first sentence of Section 2.2, that its obligations under this Guaranty shall not be discharged until the final and indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.
. The Guarantor expressly waives all rights it may now or in the future have under any statute (b) Each including without limitation North Carolina General Statutes Section 26-7, ET SEQ. or similar law), or at law or in equity, or otherwise, to compel the Administrative Agent or any Lender to proceed in respect of the Guaranteed Obligations against any such Borrower or any other party or against any security for or other guaranty of the payment and performance of the Guaranteed Obligations before proceeding against, or as a condition to proceeding against, the Guarantor. The Guarantor represents, warrants further expressly waives and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets assert or defenses take advantage of any kind (other than defense based upon the defense failure of payment) against the Administrative AgentAgent or any Lender to commence an action in respect of the Guaranteed Obligations against any such Borrower, the Lenders Guarantor or any other party or any security for the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees payment and acknowledges that performance of the Guaranteed Obligations. The Guarantor agrees that any notice or directive given at any time to the Administrative Agent or any Lender which is inconsistent with the waivers in the preceding two sentences shall be null and void and may be ignored by the Administrative Agent or Lender, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waivedand, in reliance upon addition, may not be pleaded or introduced as evidence in any litigation relating to this Guaranty for the reason that such pleading or introduction would be at variance with the written terms of this Guaranty, and all dealings between the Borrower and any of the Guarantors, on the one hand, and unless the Administrative Agent and the LendersRequired Lenders have specifically agreed otherwise in writing. The foregoing waivers are of the essence of the transaction contemplated by the Loan Documents and, on but for this Guaranty and such waivers, the other hand, likewise shall be conclusively presumed Agents and Lenders would decline to have been had or consummated in reliance upon enter into this GuarantyAgreement.
Appears in 1 contract
Samples: Credit Agreement (Acc Corp)
Nature of Guaranty. (a) Each Guarantor agrees that this Guaranty This is a continuing, an unconditional guaranty of payment the Obligations, including any and performance all Obligations which are modified, renewed, comprised or restructured from time to time. This Guaranty may not be revoked and shall not otherwise terminate unless and until all of the Obligations have been indefeasibly paid and performed in full. The parties acknowledge and agree that the liability of Guarantor hereunder is independent of and not in consideration of collectionor contingent upon the liability of the Obligor or any other guarantor and a separate action or actions may be brought and prosecuted against any guarantor, and whether or not any action is brought or prosecuted against the Obligor or any guarantor or whether the Obligor or any other guarantor is joined in any such action or actions. To the extent that its obligations under performance of this Guaranty or the Obligations requires the payment of money, this Guaranty shall be primary, absolute construed as a guaranty of payment (and unconditional, irrespective of, not merely of collection). By this Guaranty the Guarantor guaranties the performance and unaffected bypayment of the Obligations without regard to:
(i) 2.1 the genuinenesslegality, validity, regularity, validity or enforceability or any future amendment of, or change inof the Master Agreement, the Credit Agreement Implantable Pump Documents or the Lease or any other Loan Document document entered into in connection therewith, any of the Obligations or the obligations of Guarantor under this Guaranty;
2.2 any defense (other than performance), set-off or counterclaim that may at any time be available to the Obligor or Guarantor against the Beneficiary; or
2.3 any other agreement, document circumstance whatsoever (with or instrument without notice to which the Borrower or any knowledge of Guarantor is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver Obligor), whether or consent by the Administrative Agent or any Lender with respect not similar to any of the provisions foregoing, that constitutes, or might be construed to constitute, an equitable or legal discharge of the Obligor or Guarantor, in bankruptcy or in any other instance. Any payment by the Obligor or any other guarantor or other circumstance that operates to toll any statute of limitations applicable to such party shall also operate to toll the statute of limitations applicable to the Guarantor. When making any demand hereunder (including by commencement or continuance of any legal proceeding), the Beneficiary may, but shall be under no obligation to, make a similar demand on the Obligor and all or any of any other guarantors, and any failure by the Beneficiary to make any such demand shall not relieve Guarantor of his obligations hereunder. Beneficiary may bring and prosecute a separate action against Guarantor to enforce its liabilities under this Guaranty, the Credit Agreement whether or not any other Loan Document;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(iv) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.
(b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) is brought against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.the
Appears in 1 contract
Samples: Guaranty (Minimed Inc)
Nature of Guaranty. (a) Each Guarantor hereby acknowledges and agrees that this Guaranty (a) is a continuing, unconditional guaranty of payment and performance and not only of collection, collection and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become liable hereunder as a party;
primary obligor (ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender solely with respect to any the Guaranteed Obligations or the Obligations of Borrower), (b) shall only be deemed discharged after the provisions of this Guaranty, the Credit Agreement or any other Loan Document;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty indefeasible satisfaction in full of the Guaranteed Obligations or any actionthe Obligations of Borrower, and (c) shall not be reduced, released, discharged, satisfied or the absence of any action, by the Administrative Agent or any Lender otherwise impacted in respect of such security or guaranty connection with (including, without limitation, the release of any such security or guaranty); or
(ivi) any other action act or circumstances which might otherwise constitute occurrence that might, but for the provisions hereof, be deemed a legal or equitable reduction, satisfaction, discharge or defense release and/or (ii) Administrative Agent’s or any Lender’s enforcement of a surety remedies under the Loan Documents and (d) shall survive the foregoing and shall not merge with any resulting foreclosure deed, deed in lieu or guarantor; it being agreed by each Guarantor thatsimilar instrument (if any), but in all cases subject to the first sentence provisions of Section 2.230 hereof. 8. Governing Law; Forum.
(a) THIS GUARANTY WAS NEGOTIATED IN THE STATE OF NEW YORK, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performanceWHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY, in fullAND IN ALL RESPECTS, of the Guaranteed Obligations and the termination of the Revolving Credit CommitmentsINCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AGREEMENT, THE NOTE AND THE OTHER LOAN DOCUMENTS AND THE OBLIGATIONS ARISING HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF GUARANTOR, AND BY ITS ACCEPTANCE OF THIS GUARANTY, ADMINISTRATIVE AGENT AND LENDERS HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS GUARANTY, THE NOTE AND THE OTHER LOAN DOCUMENTS, AND THIS GUARANTY, THE NOTE AND THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW EXCEPT AS SPECIFICALLY SET FORTH ABOVE.
(b) Each Guarantor representsANY LEGAL SUIT, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaimsACTION OR PROCEEDING AGAINST ADMINISTRATIVE AGENT ANY LENDER OR GUARANTOR ARISING OUT OF OR RELATING TO THIS GUARANTY MAY AT ADMINISTRATIVE AGENT’S OPTION BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN THE CITY OF NEW YORK, offsets or defenses of any kind COUNTY OF NEW YORK, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND BORROWER WAIVES ANY 7 OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. GUARANTOR DOES HEREBY DESIGNATE AND APPOINT: Xxxxxxxx Xxxxxx Xxxxxxx & Xxxxxxx LLP 00 Xxxxxxxxxxx Xxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxx Xxxxx, Esq. AS ITS AUTHORIZED AGENT TO TAKE, RECEIVE AND FORWARD PROCESS ON ITS BEHALF SERVICE OF ANY AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE MAILED OR DELIVERED TO GUARANTOR IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON GUARANTOR, IN ANY SUCH SUIT, ACTION OR PROCEEDING IN THE STATE OF NEW YORK. GUARANTOR (other than the defense of paymentI) against the Administrative AgentSHALL GIVE PROMPT NOTICE TO ADMINISTRATIVE AGENT OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, the Lenders or the Borrower whether now existing or which may arise in the future(II) MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS), AND (III) SHALL PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN OFFICE IN NEW YORK OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR. 9.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 1 contract
Samples: Guaranty of Interest and Carry Costs (Pacific Oak Strategic Opportunity REIT, Inc.)
Nature of Guaranty. (a) Each The Guarantied Obligations are the immediate, direct, primary and absolute liabilities of the Guarantors. The liability of each Guarantor agrees that this hereunder is independent of, and not in consideration of or contingent upon the liability of any other Obligor, and a separate action or actions may be brought or prosecuted against a Guarantor, whether or not any action is brought or prosecuted against any other Obligor or whether any other Obligor is joined in any such action or actions. This Guaranty is shall be construed as a continuing, absolute and unconditional guaranty of payment and performance (and not of collection) and performance, and that its obligations the liability of each Guarantor under this Guaranty shall be primaryirrevocable, absolute and unconditional, irrespective of, without regard to (and unaffected by:each Guarantor irrevocably waives):
(ia) the genuinenesslegality, validity, regularity, validity or enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit Agreement Notes or any other Loan Investment Document, any of the Guarantied Obligations, any Lien or any Collateral;
(iiib) any defense (other than payment), set-off or counterclaim that may be available to any Obligor at any time against, or any right of setoff at any time held by, the Beneficiary;
(c) any acts of commission or omission of any kind at any time on the part of the Beneficiary with respect to any matter whatsoever;
(d) the existenceliquidation or dissolution of any Guarantor or any Obligor, value any bankruptcy, insolvency, reorganization, arrangement, assignment for the benefit of creditors, receivership or condition ofsimilar event or proceeding with respect to any Guarantor or any Obligor, or failure any action taken by any trustee or receiver of any Guarantor or any Obligor or by any court or any proceeding with respect to perfect its Lien against, any security for Guarantor or other guaranty any Obligor;
(e) any change of ownership of the Guaranteed Obligations Capital Stock of any Guarantor or any actionother Obligor, or any change in the absence of relationship between any action, by the Administrative Agent or any Lender in respect of Guarantor and such security or guaranty other Obligor (including, without limitation, the release termination of such relationship);
(f) any assignment or other transfer, in whole or in part, of the Beneficiary’s interest in and rights under the Securities Purchase Agreement, the Notes or any other Investment Document, including this Guaranty, or of the Beneficiary’s interest in the Guarantied Obligations, the Obligations or the Collateral;
(g) any cancellation, renunciation or surrender of any such security pledge, guaranty or guaranty)any debt instrument evidencing the Obligations or the Guarantied Obligations; or
(ivh) any other action circumstance whatsoever (with or circumstances which without notice to or knowledge of any Guarantor or any other Obligor), other than payment, whether or not similar to any of the foregoing, that constitutes, or might otherwise constitute a be construed to constitute, an equitable or legal discharge of any Guarantor or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performanceany other Obligor, in full, bankruptcy or in any other instance. Any payment by any Obligor or other circumstance that operates to toll any statue of limitations applicable to such Obligor shall also operate to toll the Guaranteed Obligations and the termination statute of the Revolving Credit Commitments.
limitations applicable to a Guarantor. When making any demand hereunder (b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets including by commencement or defenses continuance of any kind (other than the defense of payment) against the Administrative Agentlegal proceeding), the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed ObligationsBeneficiary may, but shall be under no obligation to, make a similar demand on all other Obligors, and any failure by the Beneficiary to make any such demand shall not relieve a Guarantor 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guarantyits obligations hereunder.
Appears in 1 contract
Samples: General and Continuing Guaranty (Butler International Inc /Md/)
Nature of Guaranty. (a) Each Subsidiary Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(ia) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Guarantor Subsidiary thereof is or may become a party;
(iib) any structural change in, restructuring of or other similar change of the Borrower or any of its Subsidiaries (including, without limitation, each Subsidiary Guarantor);
(c) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan Document;
(iiid) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(ive) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantorguarantor (other than payments not then due and owing or payments already made); it being agreed by each Subsidiary Guarantor that, subject to the first sentence of proviso in Section 2.22 hereof, its obligations under this Guaranty shall not be discharged until the final and indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Commitments; PROVIDED, as long as such sale is permitted by the Credit Commitments.
(b) Each Agreement, any Subsidiary Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and which is sold shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 released from this Guaranty, and this Guaranty shall terminate with respect to such Subsidiary Guarantor upon any such permitted sale. To the extent permitted by law, each Subsidiary Guarantor expressly waives all dealings between rights it may now or in the future have under any statute (including without limitation North Carolina General Statutes Section 26-7, et. seq. or similar law), or at law or in equity, or otherwise, to compel the Administrative Agent or any Lender to proceed in respect of the Guaranteed Obligations against the Borrower and or any other party or against any security for or other guaranty of the Guarantorspayment and performance of the Guaranteed Obligations before proceeding against, on or as a condition to proceeding against, such Subsidiary Guarantor. To the one handextent permitted by law, each Subsidiary Guarantor further expressly waives and agrees not to assert or take advantage of any defense based upon the failure of the Administrative Agent or any Lender to commence an action in respect of the Guaranteed Obligations against the Borrower, such Subsidiary Guarantor, any other guarantor or any other party or any security for the payment and performance of the Guaranteed Obligations. Each Subsidiary Guarantor agrees that any notice or directive given at any time to the Administrative Agent or any Lender which is inconsistent with the waivers in the preceding two sentences shall be null and void and may be ignored by the Administrative Agent or Lender, and, in addition, may not be pleaded or introduced as evidence in any litigation relating to this Guaranty for the reason that such pleading or introduction would be at variance with the written terms of this Guaranty, unless the Administrative Agent and the LendersRequired Lenders have specifically agreed otherwise in writing. The foregoing waivers are of the essence of the transaction contemplated by the Loan Documents and, on but for this Guaranty and such waivers, the other hand, likewise shall be conclusively presumed Administrative Agent and Lenders would decline to have been had or consummated in reliance upon this Guarantyenter into the Credit Agreement.
Appears in 1 contract
Nature of Guaranty. (a) Each Guarantor agrees that this This Guaranty Agreement is a continuingintended to be an irrevocable, unconditional absolute, continuing guaranty of payment and performance and is not a guaranty of collection. This Guaranty Agreement may not be revoked by Guarantor; provided, however, if, according to applicable law, it shall ever be determined or held that a guarantor under a continuing guaranty such as this Guaranty Agreement shall have the absolute right, notwithstanding the express agreement of such a guarantor otherwise, to revoke such guaranty as to Guaranteed Debt which has then not yet arisen, then Guarantor may deliver to the Administrative Agent written notice, in addition to giving such notice as provided in SECTION 5.02 hereof, that Guarantor will not be liable hereunder for any Guaranteed Debt created, incurred, or arising after the giving of such notice, and that its obligations under this Guaranty shall such notice will be primaryeffective as to Guarantor from and after (but not before) such times as said written notice is actually delivered to, absolute and unconditional, irrespective ofin addition to giving such notice as provided in SECTION 5.02 hereof, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent received by and receipted for in writing by the Administrative Agent Agent; provided that such notice shall not in anywise affect, impair, or limit the liability and responsibility of any Lender other person or entity with respect to any of the provisions of this GuarantyGuaranteed Debt theretofore existing or thereafter existing, the Credit Agreement or any other Loan Document;
(iii) the existencearising, value or condition ofrenewed, extended, or failure to perfect its Lien againstmodified; provided, any security for or other guaranty of the Guaranteed Obligations or any actionfurther, that such notice shall not affect, impair, or release the absence liability and responsibility of any actionGuarantor with respect to Guaranteed Debt created, by the Administrative Agent incurred, or any Lender arising (or in respect of such security any Guaranteed Debt agreed or guaranty (contemplated, in any respect, to be created, whether advanced or not and whether committed to by the Loan Parties or not, including, without limitation, any discretionary advances or extensions of credit which may be made by any Loan Party at its option in the release future under any type of loan or credit agreement, arrangement or undertaking) prior to the receipt of such notice by the Administrative Agent as aforesaid, or in respect of any renewals, extensions, or modifications of such security Guaranteed Debt, or guaranty); or
(iv) in respect of interest or costs of collection thereafter accruing on or with respect to such Guaranteed Debt, or with respect to attorneys' fees thereafter becoming payable hereunder with respect to such Guaranteed Debt, and shall continue to be effective with respect to any other action Guaranteed Debt arising or circumstances which might otherwise constitute a legal created after any attempted revocation by Guarantor. The fact that at any time or equitable discharge from time-to-time the Guaranteed Debt may be increased, reduced, or defense paid in full shall not release, discharge, or reduce the obligation of a surety Guarantor with respect to indebtedness or guarantor; it being agreed by each Guarantor that, subject obligations of Borrower to the first sentence Loan Parties thereafter incurred (or other Guaranteed Debt thereafter arising) under the Credit Agreement, the Notes, or otherwise. This Guaranty Agreement may be enforced by the Loan Parties and any subsequent holder of Section 2.2, its obligations under this Guaranty the Guaranteed Debt and shall not be discharged until by the final indefeasible payment and performance, in full, assignment or negotiation of all or part of the Guaranteed Obligations and the termination of the Revolving Credit CommitmentsDebt.
(b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 1 contract
Nature of Guaranty. (a) Each Guarantor agrees that this This Guaranty is a an absolute, unconditional, continuing, unconditional direct and immediate guaranty of payment and performance not just of collection and not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected is no way conditioned upon or limited by or in any other way affected by:
(ia) the genuineness, validity, regularity, enforceability any attempt by Lender to pursue Lender’s rights against Borrower or any future amendment of, Obligor;
(b) any attempt by Lender to pursue Lender’s rights against Borrower’s real or change in, the Credit Agreement personal property or any other Loan Document Obligor’s real or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a partypersonal property;
(iic) the absence any recourse against or foreclosure of any action security or collateral now or hereafter pledged, assigned or granted to enforce this Guaranty, Lender under the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to provisions of any of the provisions Loan Documents;
(d) any action taken or not taken by Lender (other than the express release by the Lender of this Guaranty, the Credit Agreement or any other Loan Document);
(iiie) the existencepartial or complete unenforceability or invalidity of any other guaranty or surety agreement, value pledge, assignment or condition of, or failure to perfect its Lien against, any other security for the Borrower’s Obligations;
(f) the invalidity or other guaranty unenforceability of any provision of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty)Loan Documents; or
(ivg) any other action defense asserted or circumstances which might otherwise constitute a legal claimed by Borrower with respect to Borrower’s Obligations including, but not limited to, failure or equitable discharge or defense lack of a surety or guarantor; it being agreed by each consideration, breach of warranty, fraud, payment, accord and satisfaction, strict foreclosure, statute of frauds, bankruptcy, insolvency, infancy, incompetency, statute of limitations, lender liability and usury. The obligations of Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.
(b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaimscounterclaim, offsets recoupment, setoff, reduction or defenses defense based upon any claim that Guarantor may have against Borrower or Lender, are independent of any kind (other than the defense guaranty or guaranties at any time in effect with respect to any of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed Borrower’s Obligations, and any of them, shall conclusively may be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Guaranty, and all dealings between the Borrower and any enforced regardless of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the existence of such other hand, likewise shall be conclusively presumed to have been had guaranty or consummated in reliance upon this Guarantyguaranties.
Appears in 1 contract
Nature of Guaranty. (a) Each Guarantor agrees that this Guaranty is a continuingCamera hereby absolutely and unconditionally guarantees to the Xxxx Parties, unconditional guaranty of as primary obligor and not merely as surety, the full and prompt payment and performance and not when due of collectionall of Xxxxxx’x duties, agreements, covenants, terms, and obligations under the Binding Agreements to Purchase (the “Guaranteed Obligations”). Camera guarantees that its the Guaranteed Obligations will be paid and performed strictly in accordance with the terms of the Binding Agreements to Purchase. The obligations of Camera hereunder are absolute, present, and continuing obligations which are not conditional upon the exercise of any remedies against Xxxxxx or the making of a demand against Xxxxxx or the filing of a suit to obtain or assert a claim for personal judgment against Xxxxxx for the Guaranteed Obligations or the making of an effort at collecting the Guaranteed Obligations from Xxxxxx, or any attempt to foreclose or realize upon any security for obligations of Xxxxxx or the taking of any other action with respect to Xxxxxx, it being expressly acknowledged and agreed that Camera shall be directly obligated hereunder for all amounts payable by Xxxxxx under the Binding Agreements to Purchase and for breaches of or failures to perform or observe, or any other noncompliance with any covenant, condition, or agreement or other obligation to be performed by Xxxxxx under the Binding Agreements to Purchase or the inaccuracy (in any material respect) of any representation or warranty of Xxxxxx in the Binding Agreements to Purchase. The liability of Camera under this Guaranty shall not be primarysubject to any counterclaim, setoff, deduction, release, recoupment, or defense and shall remain in full force and effect and shall be irrevocable, absolute and unconditional, irrespective of: (a) any lack of validity, and unaffected by:
(i) the genuineness, validity, regularity, or enforceability of the Binding Agreements to Purchase or any future amendment other agreement or instrument relating thereto; (b) any change in the time, manner, or place of payment of, or change inin any other term of, all or any of the Credit Agreement Guaranteed Obligations, or any other Loan Document amendment or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan Document;
(iii) the existence, value or condition of, or any consent to departure from, the Binding Agreements to Purchase; (c) any bankruptcy or insolvency of, or any merger or consolidation of, or any sale of shares in, Xxxxxx; (d) any failure by either of the Xxxx Parties to perfect its Lien againstpursue remedies against Xxxxxx; (e) the pursuit by either Xxxx Party of whatsoever remedies there may be against Xxxxxx, any other guarantor or any security for any or other guaranty all of the Guaranteed Obligations or Obligations; (f) any action, or the absence claim as a result of any action, by the Administrative Agent other dealing between either Xxxx Party and Xxxxxx; or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(ivg) any other action occurrence or circumstances which whatsoever, whether similar or dissimilar to the foregoing and any other circumstances (other than actual payment or performance) that might otherwise constitute a legal or equitable defense or discharge or defense of the liabilities of a guarantor or surety or guarantor; it being agreed that might otherwise limit recourse against Xxxxxx. Indefeasible fulfillment by each Guarantor that, subject to the first sentence Xxxxxx or Camera of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, any of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.
(b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses dispose of any kind (other than claim hereunder with respect to, and to the defense extent of, such of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 1 contract
Nature of Guaranty. This Guaranty is in no way conditioned upon any attempt to collect from any Guaranteed Party or upon any other event or contingency, and shall be binding upon and enforceable against each Guarantor without regard to the validity, regularity or enforceability of any Facility Sublease Document, any Operative Document or of any term thereof. In the event that any payment to the Guaranty Beneficiary in respect of the Obligations is rescinded or must otherwise be returned for any reason whatsoever, each of the Guarantors shall remain liable hereunder with respect to the Obligations as if such payment had not been made. This Guaranty is an absolute, unlimited, continuing and unconditional guarantee of performance and payment (but not of collection) of the Obligations. The liability of each Guarantor under this Guaranty shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional. This Guaranty is a primary and original obligation of each Guarantor and is not merely the creation of a surety relationship. The obligations of each Guarantor set forth herein constitute the full recourse obligations of such Guarantor enforceable against it to the full extent of all its assets and properties. Without limiting the foregoing, it is agreed and understood that (a) Each Guarantor agrees that this Guaranty is a continuingrepeated and successive demands may be made and recoveries may be had hereunder as and when, unconditional guaranty from time to time, any Guaranteed Party shall be in default with respect to the Obligations under the terms of payment and performance and not of collectionthe Facility Sublease Documents or the Operative Documents, and that its obligations (b) notwithstanding the recovery hereunder for or in respect of any given default with respect to the Obligations of any Guaranteed Party under any Facility Sublease Document or any Operative Document, this Guaranty shall be primary, absolute remain in full force and unconditional, irrespective of, effect and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument shall apply to which the Borrower or any Guarantor is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender each and every subsequent default with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan Document;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(iv) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit CommitmentsObligations.
(b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 1 contract
Samples: Membership Interest and Stock Purchase Agreement (Transcanada Corp)
Nature of Guaranty. (a) Each Subsidiary Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or Agreement, any other Loan Document Document, any Hedging Agreement or any other agreement, document or instrument to which the Borrower any Borrower, any Subsidiary Guarantor or any Guarantor of their respective Subsidiaries or Affiliates is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or Agreement, any other Loan Document or any Hedging Agreement or the waiver or consent by the Administrative Agent or any Lender other Secured Party with respect to any of the provisions of this Guaranty, the Credit Agreement or Agreement, any other Loan DocumentDocument or any Hedging Agreement;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender other Secured Party in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty);
(iv) any structural change in, restructuring of or other similar organizational change of any Borrower, any Subsidiary Guarantor, any other guarantors or any of their respective Subsidiaries or Affiliates; or
(ivv) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Subsidiary Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment in cash and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments, provided that a Subsidiary Guarantor may be released from the Guaranteed Obligations pursuant to Section 4.16 of this Guaranty.
(b) Each Subsidiary Guarantor represents, warrants and agrees that the Guaranteed Obligations and its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders other Secured Parties or the Borrower Borrowers whether now existing or which may arise in the future.
(c) Each Subsidiary Guarantor hereby agrees and acknowledges that the Guaranteed 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 any Borrower and any of the GuarantorsSubsidiary Guarantor, on the one hand, and the Administrative Agent and the Lendersother Secured Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 1 contract
Nature of Guaranty. (a) Each Guarantor The US Borrower agrees that this US Borrower Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this US Borrower Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
by (ia) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit this Agreement or any other Loan Document or any other agreement, document or instrument to which the Canadian Borrower or any Guarantor is [Second Amendment – SCP Pool Corporation] 92 or may become a party;
, (iib) the absence of any action to enforce this US Borrower Guaranty, the Credit this Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this US Borrower Guaranty, the Credit this Agreement or any other Loan Document;
, (iiic) the existence, value or condition of, or failure to perfect its Lien a Lien, if any, against, any security for or other guaranty of the US Borrower Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
, (ivd) any structural change in, restructuring of or other similar change of the Canadian Borrower or any of its Subsidiaries or (e) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, US Borrower that its obligations under this US Borrower Guaranty shall not be discharged until the final and indefeasible payment and performancepayment, in full, of the US Borrower Guaranteed Obligations and the termination of the Revolving Credit Commitments.
. To the extent permitted by law, the US Borrower expressly waives all rights it may now or in the future have under any statute (b) Each Guarantor representsincluding, warrants without limitation, North Carolina General Statutes Section 26-7, et seq. or similar law), or at law or in equity, or otherwise, to compel the Administrative Agent or any Lender to proceed in respect of the US Borrower Guaranteed Obligations against the Canadian Borrower, any other guarantor or any other party or against any security for or other guaranty of the payment of the US Borrower Guaranteed Obligations before proceeding against, or as a condition to proceeding against, the US Borrower. To the extent permitted by law, the US Borrower further expressly waives and agrees not to assert or take advantage of any defense based upon the failure of the Administrative Agent or any Lender to commence an action in respect of the US Borrower Guaranteed Obligations against the Canadian Borrower, the US Borrower, any other guarantor or any other party or any security for the payment of the US Borrower Guaranteed Obligations. The US Borrower agrees that its obligations under this Guaranty are not any notice or directive given at any time to the Administrative Agent or any Lender which is inconsistent with the waivers in the preceding two sentences shall be null and shall void and may be ignored by the Administrative Agent or such Lender, and, in addition, may not be subject pleaded or introduced as evidence in any litigation relating to any counterclaims, offsets this US Borrower Guaranty for the reason that such pleading or defenses introduction would be at variance with the written terms of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the this US Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Guarantors, on the one hand, and unless the Administrative Agent and the LendersRequired Lenders have specifically agreed otherwise in writing. The foregoing waivers are of the essence of the transaction contemplated by the Loan Documents and, on but for this US Borrower Guaranty and such waivers, the other hand, likewise shall be conclusively presumed Administrative Agent and the Lenders would decline to have been had or consummated in reliance upon enter into this GuarantyAgreement.
Appears in 1 contract
Nature of Guaranty. (a) Each The Parent Guarantor agrees that this Parent Guaranty is a an absolute, continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Parent Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit this Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower Parent Guarantor, the Borrower, any Subsidiary thereof or any Guarantor Affiliate thereof is or may become a party;
(ii) the absence of any action to enforce this Parent Guaranty, the Credit this Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Parent Guaranty, the Credit this Agreement or any other Loan Document;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty);
(iv) any structural change in, restructuring of or similar change of the Parent Guarantor, the Borrower or any of their Subsidiaries; or
(ivv) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each the Parent Guarantor that, subject to the first sentence of Section 2.2, that its obligations under this Parent Guaranty shall not be discharged until the final and indefeasible payment and performance, in full, of the Guaranteed Obligations (other than contingent indemnity obligations) and the termination of the Revolving Credit Commitments.
(b) Each The Parent Guarantor represents, warrants and agrees that its obligations under this Parent Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each The Parent Guarantor hereby agrees and acknowledges that the Guaranteed 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 Parent Guaranty, and all dealings between the Parent Guarantor, the Borrower and any of the GuarantorsSubsidiary thereof, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Parent Guaranty.
Appears in 1 contract
Samples: Credit Agreement (Medcath Corp)
Nature of Guaranty. (a) Each Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty Agreement shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(ia) the genuineness, validity, regularity, enforceability enforce- ability or any future amendment of, or change in, the Credit this Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a party;
(iib) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan Document;
(iiic) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(ivd) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, that its obligations under this Guaranty shall not be discharged until the final and indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.
(b) Aggregate Commitment. Each Guarantor representsexpressly waives all rights it may now or in the future have under any statute (including, warrants without limitation, North Carolina General Statutes Section 26-7, et seq. or similar law), or at law or in equity, or otherwise, to compel the Agent or any Lender to proceed in respect of the Guaranteed Obligations against the Borrower or any other party or against any security for or other guaranty of the payment and performance of the Guaranteed Obligations before proceeding against, or as a condition to proceeding against, such Guarantor. Each Guarantor further expressly waives and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets assert or defenses take advantage of any kind (other than defense based upon the defense failure of payment) the Agent or any Lender to commence an action in respect of the Guaranteed Obligations against the Administrative AgentBorrower, any Guarantor or any other party or any security for the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees payment and acknowledges that performance of the Guaranteed Obligations. Each Guarantor agrees that any notice or directive given at any time to the Agent or any Lender which is inconsistent with the waivers in the preceding two sentences shall be null and void and may be ignored by the Agent or Lender, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waivedand, in reliance upon addition, may not be pleaded or introduced as evidence in any litigation relating to this Guaranty for the reason that such pleading or introduction would be at variance with the written terms of this Guaranty, and all dealings between unless the Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the LendersRequired Lenders have specifically agreed otherwise in writing. The foregoing waivers are of the essence of the transaction contemplated by the Loan Documents and, on but for this Guaranty and such waivers, the other hand, likewise shall be conclusively presumed Agent and Lenders would decline to have been had or consummated in reliance upon enter into this GuarantyAgreement.
Appears in 1 contract
Nature of Guaranty. (a) Each Subsidiary Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or Agreement, any other Loan Document Document, any Cash Management Agreement, any Hedging Agreement or any other agreement, document or instrument to which the Borrower any Borrower, any Subsidiary Guarantor or any Guarantor of their respective Subsidiaries or Affiliates is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement, any other Loan Document, any Cash Management Agreement or any other Loan Document Hedging Agreement or the waiver or consent by the Administrative Agent or any Lender other Guaranteed Party with respect to any of the provisions of this Guaranty, the Credit Agreement or Agreement, any other Loan DocumentDocument or any Hedging Agreement;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender other Guaranteed Party in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty);
(iv) any structural change in, restructuring of or other similar organizational change of any Borrower, any Subsidiary Guarantor, any other guarantors or any of their respective Subsidiaries or Affiliates; or
(ivv) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Subsidiary Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment in cash and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments, provided that a Subsidiary Guarantor may be released from the Guaranteed Obligations pursuant to Section 4.16 of this Guaranty.
(b) Each Subsidiary Guarantor represents, warrants and agrees that the Guaranteed Obligations and its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders other Guaranteed Parties or the Borrower Borrowers whether now existing or which may arise in the future.
(c) Each Subsidiary Guarantor hereby agrees and acknowledges that the Guaranteed 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 any Borrower and any of the GuarantorsSubsidiary Guarantor, on the one hand, and the Administrative Agent and the Lendersother Guaranteed Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 1 contract
Nature of Guaranty. (a) Each The Guarantied Obligations are the immediate, direct, primary and absolute liabilities of Guarantor. The liability of Guarantor agrees that this hereunder is independent of, and not in consideration of or contingent upon the liability of any other Obligor, and a separate action or actions may be brought or prosecuted against Guarantor, whether or not any action is brought or prosecuted against any other Obligor or whether any other Obligor is joined in any such action or actions. This Guaranty is shall be construed as a continuing, absolute and unconditional guaranty of payment and performance (and not of collection) and performance, and that its obligations the liability of Guarantor under this Guaranty shall be primaryirrevocable, absolute and unconditional, irrespective of, without regard to (and unaffected by:Guarantor irrevocably waives):
(ia) the genuinenesslegality, validity, regularity, validity or enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit Agreement Unsecured Notes or any other Loan DocumentInvestment Document giving rise to Guarantied Obligations, any of the Guarantied Obligations, any Lien or any Collateral;
(iiib) any defense (other than payment), set-off or counterclaim that may be available to any Obligor at any time against, or any right of setoff at any time held by, the Beneficiary;
(c) any acts of commission or omission of any kind at any time on the part of the Beneficiary with respect to any matter whatsoever;
(d) the existenceliquidation or dissolution of any Obligor, value any bankruptcy, insolvency, reorganization, arrangement, assignment for the benefit of creditors, receivership or condition ofsimilar event or proceeding with respect to Guarantor (as applicable) or any Obligor, or failure any action taken by any trustee or receiver of Guarantor or any Obligor or by any court or any proceeding with respect to perfect its Lien against, Guarantor or any security for or other guaranty Obligor;
(e) any change of ownership of the Guaranteed Obligations Capital Stock of any Obligor, or any action, or change in the absence of any action, by the Administrative Agent or any Lender in respect of relationship between Guarantor and such security or guaranty other Obligor (including, without limitation, the release termination of such relationship);
(f) any assignment or other transfer, in whole or in part, of the Beneficiary’s interest in and rights under the Securities Purchase Agreement, the Unsecured Notes or any other Investment Document giving rise to Guarantied Obligations, including this Guaranty, or of the Beneficiary’s interest in the Guarantied Obligations, the Obligations or the Collateral;
(g) any cancellation, renunciation or surrender of any such security pledge, guaranty or guaranty)any debt instrument evidencing the Obligations or the Guarantied Obligations; or
(ivh) any other action circumstance whatsoever (with or circumstances which without notice to or knowledge of Guarantor or any other Obligor), other than payment, whether or not similar to any of the foregoing, that constitutes, or might otherwise constitute a be construed to constitute, an equitable or legal discharge of Guarantor or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performanceany other Obligor, in full, bankruptcy or in any other instance. Any payment by any Obligor or other circumstance that operates to toll any statue of limitations applicable to such Obligor shall also operate to toll the Guaranteed Obligations and the termination statute of the Revolving Credit Commitments.
limitations applicable to Guarantor. When making any demand hereunder (b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets including by commencement or defenses continuance of any kind (other than the defense of payment) against the Administrative Agentlegal proceeding), the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed ObligationsBeneficiary may, but shall be under no obligation to, make a similar demand on all other Obligors, and any failure by the Beneficiary to make any such demand shall not relieve Guarantor 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guarantyhis obligations hereunder.
Appears in 1 contract
Samples: General and Continuing Guaranty (Butler International Inc /Md/)
Nature of Guaranty. (a) Each The liability of each Guarantor agrees that this hereunder is ------------------ independent of and not in consideration of or contingent upon the liability of the Company or any other Obligor, and a separate action or actions may be brought or prosecuted against any Guarantor, whether or not any action is brought or prosecuted against the Company or any other Obligor or whether the Company or any other Obligor is joined in any such action or actions. This Guaranty is shall be construed as a continuing, absolute and unconditional guaranty of payment and performance (and not merely of collection), and that its obligations the liability of each Guarantor under this Guaranty shall be primaryirrevocable, absolute and unconditional, irrespective of, without regard to (and unaffected by:each Guarantor irrevocably waives):
(ia) the genuinenesslegality, validity, regularity, validity or enforceability or any future amendment of, or change inof this Agreement, the Credit Agreement Note or any other Loan Document Investment Document, any of the Guarantied Obligations, any Lien or any Collateral;
(b) any defense (other than payment), set-off or counterclaim that may at any time be available to the Company or any other agreementObligor against, document or instrument to which and any right of setoff at any time held by, the Borrower or any Guarantor is or may become a partyBeneficiary;
(iic) the absence any acts of commission or omission of any action to enforce this Guaranty, kind (other than gross negligence) at any time on the Credit Agreement or any other Loan Document or part of the waiver or consent by the Administrative Agent or any Lender Beneficiary with respect to any matter whatsoever;
(d) the liquidation or dissolution of the provisions of this Guaranty, the Credit Agreement Company or any other Loan DocumentObligor, any bankruptcy, insolvency, reorganization, arrangement, assignment for the benefit of creditors, receivership or similar event or proceeding with respect to the Company or any other Obligor, or any action taken by any trustee or receiver of the Company or any other Obligor or by any court or any proceeding with respect to the Company or any other Obligor;
(iiie) any change of ownership of the existence, value Capital Stock of the Company or condition ofany other Obligor, or failure to perfect its Lien against, any security for or other guaranty of change in the Guaranteed Obligations or relationship between any action, or Guarantor and the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty Company (including, without limitation, the release termination of any such security or guarantyrelationship); or
(ivf) any other action circumstance whatsoever (with or circumstances which without notice to or knowledge of any Guarantor or any other Obligor), whether or not similar to any of the foregoing, that constitutes, or might otherwise constitute a be construed to constitute, an equitable or legal discharge of the Company or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performanceany other Obligor, in fullbankruptcy or in any other instance. Any payment by any Obligor or other circumstance that operates to toll any statue of limitations applicable to such Obligor shall also operate to toll the statute of limitations applicable to each Guarantor. When making any demand hereunder (including by commencement or continuance of any legal proceeding), the Beneficiary may, but shall be under no obligation to, make a similar demand on all or any of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.
(b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed ObligationsObligors, and any failure by the Beneficiary to make any such demand shall not relieve any Guarantor 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guarantyits obligations hereunder.
Appears in 1 contract
Nature of Guaranty. (a) Each Guarantor Holdings agrees that this Parent Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Parent Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit this Agreement or any other Loan Document or any other agreement, document or instrument to which Holdings, the Borrower Borrower, any Subsidiary thereof or any Guarantor Affiliate thereof is or may become a party;
(ii) the absence of any action to enforce this Parent Guaranty, the Credit this Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Parent Guaranty, the Credit this Agreement or any other Loan Document;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty);
(iv) any structural change in, restructuring of or similar change of Holdings, the Borrower or any of their Subsidiaries; or
(ivv) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, Holdings that its obligations under this Parent Guaranty shall not be discharged until the final and indefeasible payment and performance, in full, of the Guaranteed Obligations (other than contingent indemnity obligations) and the termination of the Revolving Credit Commitments.
(b) Each Guarantor Holdings represents, warrants and agrees that its obligations under this Parent Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor Holdings hereby agrees and acknowledges that the Guaranteed 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 Parent Guaranty, and all dealings between Holdings, the Borrower and any of the Subsidiary Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Parent Guaranty.
Appears in 1 contract
Nature of Guaranty. (a) Each This is an absolute, present and continuing guaranty of payment and not merely of collection. Guarantor agrees that this Guaranty is a continuingmay be enforced by Agent or any Lenders without the necessity at any time of resorting to or exhausting any other security or collateral given in connection herewith or with the Notes, unconditional guaranty Credit Agreement or any of payment and performance and not of collectionthe other Financing Documents through foreclosure or sale proceedings, as the case may be, under the Financing Documents or otherwise, or resorting to any other guaranties, and Guarantor hereby waives any right to require Agent or Lenders to join Borrower in any action brought hereunder or to commence any action against or obtain any judgment against Borrowers or to pursue any other remedy or enforce any other right. Guarantor further agrees that its obligations nothing contained herein or otherwise shall prevent Agent or Lenders from pursuing concurrently or successively all rights and remedies available to it at law and/or in equity or under this Guaranty shall be primarythe Notes, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreementFinancing Documents, document or instrument to which and the Borrower or any Guarantor is or may become a party;
(ii) the absence exercise of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document of its rights or the waiver or consent by the Administrative Agent or any Lender with respect to completion of any of the provisions of this Guaranty, the Credit Agreement or any other Loan Document;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender remedies that do not result in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(iv) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible full payment and performance, in full, of the Guaranteed Obligations and complete satisfaction of Borrowers’ Obligations under the termination Financing Documents shall not constitute a discharge of Guarantor’s obligations hereunder, it being the Revolving Credit Commitments.
(b) Each purpose and intent of Guarantor representsthat the obligations of Guarantor hereunder shall be absolute, warrants independent and agrees that its unconditional under any and all circumstances whatsoever. None of Guarantor’s obligations under this Guaranty are or any remedy for the enforcement thereof shall be impaired, modified, changed or released in any manner whatsoever by any impairment, modification, change, release or limitation of the liability of Borrowers under the Notes, Credit Agreement or other Financing Documents or by reason of the bankruptcy of Borrowers or by reason of any creditor or bankruptcy proceeding instituted by or against Borrowers. To the extent permitted under applicable law, this Guaranty shall continue to be effective or be reinstated (as the case may be) if at any time payment of all or any part of any sum payable pursuant to the Notes, Credit Agreement, or any other Financing Document is rescinded or otherwise required to be returned by Agent or Lenders upon the insolvency, bankruptcy, dissolution, liquidation, or reorganization of Borrowers, or upon or as a result of the appointment of a receiver, intervenor, custodian or conservator of or trustee or similar officer for, Borrowers or any substantial part of its property, or otherwise, all as though such payment to Agent or Lenders had not been made, regardless of whether Agent or Lenders contested the order requiring the return of such payment. In the event of the foreclosure of the Financing Documents and of a deficiency, subject to the limitations in Section 1, Guarantor hereby promises and agrees forthwith to pay the amount of such deficiency notwithstanding the fact that recovery of said deficiency against Borrowers would not be allowed by applicable law; provided, however, that the foregoing shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted require that Agent or incurred, Lenders institute foreclosure proceedings or renewed, extended, amended otherwise resort to or waived, in reliance upon this Guaranty, and all dealings between the Borrower and exhaust any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed collateral or security prior to have been had or consummated in reliance upon concurrently with enforcing this Guaranty.
Appears in 1 contract
Nature of Guaranty. (a) Each Guarantor agrees that this This Guaranty is a continuing, unlimited, unconditional and absolute guaranty of payment and performance and not of collection, and that its obligations . The liability of Guarantors under this Guaranty shall be primary, absolute direct and unconditional, irrespective of, immediate and unaffected by:
(i) the genuineness, validity, regularity, enforceability not conditional or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a party;
(ii) the absence contingent upon pursuit by Lender of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender remedies it may have against either Borrower with respect to the Loan Documents or upon Lender taking any steps to perfect and/or maintain perfected its security interest in, or preserve its rights to, any security or collateral for the Obligations. No exercise or non-exercise by Lender of any right given to it hereunder or under the Loan Documents shall affect any of Guarantors’ obligations hereunder or give Guarantors any recourse against Lender. Without limiting the generality of the foregoing, Lender shall not be required to make any demand on either Borrower, or otherwise pursue or exhaust its remedies against either Borrower, or any collateral securing any of the provisions of this GuarantyObligations, the Credit Agreement before, simultaneously with or any other Loan Document;
(iii) the existenceafter, value or condition of, or failure to perfect enforcing its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(iv) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment rights and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitmentsremedies hereunder against Guarantors.
(b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not Any one or more successive and/or concurrent actions may be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) brought hereon against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise Guarantors either in the futuresame action, if any, brought against either Borrower, or in separate actions, as often as Lender, in its sole discretion, may deem advisable.
(c) Lender shall be under no obligation to marshal any assets in favor of Guarantors, or against or in payment of any or all of the Obligations. Guarantors hereby waive any rights to interpose any defense, counterclaim or offset of any nature and description which they may have or which may exist between and among Lender, Borrowers and/or Guarantors with respect to Guarantors’ obligations under this Guaranty, or which either Borrower may assert on the underlying debt, including but not limited to failure of consideration, breach of warranty, fraud, payment (other than cash payment in full of the Obligations then due), statute of frauds, bankruptcy, infancy, statute of limitations, accord and satisfaction, and usury. Each Guarantor hereby agrees expressly waives notice of the acceptance of this Guaranty and acknowledges any notice or demand to which it would otherwise be entitled hereunder solely by reason of the fact that its position is one of suretyship, including without limitation notice of non-performance of either Borrower under any of the Guaranteed Loan Documents and presentment for payment, protest, or notice of protest for any obligation created under any of the Loan Documents (except as otherwise provided in the Loan Documents).
(d) Notwithstanding any payment or payments made by Guarantors hereunder, Guarantors (and Guarantors’ successors and assigns) shall not be entitled to be subrogated to any of the rights of Lender against either Borrower or against any collateral or guarantee or right of offset held by Lender for the payment of the Obligations, nor shall any Guarantor (or its successors or assigns) seek or be entitled to seek any contribution or reimbursement from either Borrower or the other Guarantor in respect of payments made by such Guarantor hereunder, until all amounts owing to Lender by either Borrower on account of the Obligations are paid and satisfied in full. If, notwithstanding the foregoing, any amount shall be paid to a Guarantor on account of them, such subrogation rights at any time when all of the Obligations shall conclusively be deemed to not have been createdpaid and satisfied in full, contracted such amount shall be held by such Guarantor in trust for Lender, segregated from any other funds of such Guarantor, and shall forthwith upon, and in any event within two (2) Business Days following, receipt by such Guarantor, be turned over to Lender in the exact form received by Guarantors (duly endorsed by such Guarantor to Lender, if required), to be applied against the Obligations, whether matured or incurred, or renewed, extended, amended or waivedunmatured, in reliance upon this Guarantysuch order as Lender may determine.
(e) Nothing shall discharge or satisfy the liabilities of Guarantors hereunder, except the full payment and performance of the Obligations.
(f) Any and all dealings between present and future debts and obligations of either Borrower to any Guarantor are hereby postponed in favor of and subordinated to the full payment of all present and future Obligations of either Borrower to Lender; and all sums at any time to the credit of such Guarantor and any of the Guarantorsproperty rights and interests and evidences thereof of such Guarantor now or at any time in Lender’s possession, on the one handcustody or control or held for its account may be held by Lender as security, and the Administrative Agent Lender shall have and the Lendersis hereby granted a general and continuing lien upon and a right of set off against such sums, on the other handproperty rights and interests and evidences thereof, likewise shall be conclusively presumed for any and all Obligations of such Guarantor to have been had or consummated in reliance upon Lender under this Guaranty.
Appears in 1 contract
Nature of Guaranty. (a) Each Guarantor agrees that this This Guaranty is a continuingan irrevocable, unconditional absolute, continuing guaranty of payment and performance performance, is joint and several, and is not a guaranty of collection, and that its obligations under this . This Guaranty shall continue to be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender effective with respect to any of the provisions Guaranteed Obligations arising or created after any attempted revocation by Guarantor and after (if Guarantor is a natural person) Guarantor’s death (in which event this Guaranty shall be binding upon Guarantor’s estate and Guarantor’s legal representatives and heirs until a replacement guarantor has been provided pursuant to Section 20 hereof). Unless agreed to in writing by Lender, liability of Guarantor under this Guaranty, Guaranty shall in no way be limited or impaired by (i) any amendment or modification of the Credit Agreement or Loan Documents; (ii) any other extensions of time for performance required by any of the Loan Document;
Documents; (iii) any sale, assignment or foreclosure pursuant to the existence, value Loan Documents or condition of, any sale or failure to perfect its Lien against, transfer of all or any security for or other guaranty part of the Guaranteed Obligations or any actionProperty, or the absence of any action, except as may be released by the Administrative Agent or any Lender in respect connection with a “Permitted Disposition” pursuant to Section 7.2 of such security or guaranty (including, without limitation, the release of any such security or guaranty)Loan Agreement; or
(iv) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, exculpatory provision in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.
(b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the GuarantorsLoan Documents limiting Lender’s recourse to the Property or to any other security, on or limiting Lender’s rights to a deficiency judgment against Borrower; (v) the one handaccuracy or inaccuracy of the representations and warranties made by Borrower under the Loan Documents; (vi) the release of Borrower or any other person from performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law, Lender’s voluntary act, or otherwise; (vii) the release or substitution in whole or in part, of any security for the Note or other evidence of debt issued pursuant to the Loan Documents; or (viii) Lender’s failure to record any of the Loan Documents (or improper recording or filing of any thereof) or to otherwise perfect, protect, secure or insure any security interest or lien given as security for the Note or other evidence of indebtedness under the Loan Documents; and the Administrative Agent in any of such cases, whether with or without notice to Guarantor and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had with or consummated in reliance upon this Guarantywithout consideration.
Appears in 1 contract
Nature of Guaranty. (a) Each Subsidiary Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Subsidiary Guarantor is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan Document;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(iv) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Subsidiary Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.
(b) Each Subsidiary Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future, except as provided in the Loan Documents.
(c) Each Subsidiary Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Subsidiary Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 1 contract
Samples: Subsidiary Guaranty Agreement (Cross Country Healthcare Inc)
Nature of Guaranty. (a) Each Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which Holdings, the Borrower Borrower, any Subsidiary thereof or any Guarantor Affiliate thereof is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan Document;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Subsidiary Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty);
(iv) any structural change in, restructuring of or other similar change of Holdings, the Borrower or any of their Subsidiaries; or
(ivv) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of in Section 2.22.01(b) hereof, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Subsidiary Guaranteed Obligations (other than contingent indemnity obligations) and the termination of the Revolving Credit Commitments.
(b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Subsidiary Guaranteed 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 Holdings, the Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 1 contract
Samples: Subsidiary Guaranty Agreement (Digitalnet Holdings Inc)
Nature of Guaranty. (a) Each Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty shall be exclusive and independent of any security for or other guaranty of the Guaranteed Obligations whether executed by any such Guarantor, any other guarantor or by any other party and shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower Borrower, any Guarantor or any Guarantor of their respective Subsidiaries or Affiliates is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender Secured Party CHAR2\1570214v4 with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan Document;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender Secured Party in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or;
(iv) any structural change in, restructuring of or similar change of the Borrower, any Guarantor or any of their respective Subsidiaries;
(v) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantorguarantor (other than the defense of payment or performance); or
(vi) any direction as to application of payment by the Borrower or by any other party; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment (or, in the case of Letters of Credit, cash collateralized in accordance with the terms of the Credit Agreement) and performance, in full, of the Guaranteed Obligations (other than contingent indemnification obligations not yet due and Bank Product Debt) and the termination Commitments are terminated; provided that a Guarantor may be released from the Guaranteed Obligations pursuant to Section 4.16 of the Revolving Credit Commitmentsthis Guaranty.
(b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders Secured Parties or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the GuarantorsGuarantor, on the one hand, and the Administrative Agent and the LendersSecured Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 1 contract
Samples: Credit Agreement (Blackbaud Inc)
Nature of Guaranty. (a) Each Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty shall be exclusive and independent of any security for or other guaranty of the Guaranteed Obligations whether executed by any such Guarantor, any other guarantor or by any other party and shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower Borrower, any Guarantor or any Guarantor of their respective Subsidiaries or Affiliates is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender Secured Party with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan Document;; CHAR2\1571985v3
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender Secured Party in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or;
(iv) any structural change in, restructuring of or similar change of the Borrower, any Guarantor or any of their respective Subsidiaries;
(v) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantorguarantor (other than the defense of payment or performance); or
(vi) any direction as to application of payment by the Borrower or by any other party; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment (or, in the case of Letters of Credit, cash collateralized in accordance with the terms of the Credit Agreement) and performance, in full, of the Guaranteed Obligations (other than contingent indemnification obligations not yet due and Bank Product Debt) and the termination Commitments are terminated; provided that a Guarantor may be released from the Guaranteed Obligations pursuant to Section 4.16 of the Revolving Credit Commitmentsthis Guaranty.
(b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders Secured Parties or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the GuarantorsGuarantor, on the one hand, and the Administrative Agent and the LendersSecured Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 1 contract
Samples: Guaranty Agreement (Blackbaud Inc)
Nature of Guaranty. (a) Each Guarantor agrees that The guarantees provided in this Guaranty is a are absolute, unconditional, continuing, unconditional guaranty direct, and immediate guaranties of payment and performance not just of collection and not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected are no way conditioned upon or limited by or in any other way affected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement attempt by Lender to pursue Lender’s rights against Borrower or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a partyObligor;
(ii) the absence any attempt by Lender to pursue Lender’s rights against any of any action to enforce this Guaranty, the Credit Agreement Customer #47856 Loan #71329 Borrower’s real or personal property or any other Loan Document Obligor’s real or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan Documentpersonal property;
(iii) the existence, value any recourse against or condition of, or failure to perfect its Lien against, foreclosure of any security for or other guaranty collateral now or hereafter pledged, assigned or granted to Lender under the provisions of any of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); orLoan Documents;
(iv) any action taken or not taken by Lender;
(v) the partial or complete unenforceability or invalidity of any other action guaranty or circumstances which might otherwise constitute a legal surety agreement, pledge, assignment or equitable discharge other security for any of Borrower’s Obligations;
(vi) the invalidity or unenforceability of any provision of the Loan Documents; or
(vii) any defense asserted or claimed by Borrower with respect to Borrower’s Obligations including, but not limited to, failure or lack of a surety or guarantor; it being agreed by each consideration, breach of warranty, payment, accord and satisfaction, strict foreclosure, statute of frauds, bankruptcy, insolvency, infancy, incompetency, statute of limitations, lender liability and usury. The obligations of Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.
(b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaimscounterclaim, offsets recoupment, set-off, reduction, or defenses defense based upon any claim that Guarantor may have against Borrower or Lender, are independent of any kind (other than the defense guaranty or guaranties at any time in effect with respect to any of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed Borrower’s Obligations, and any of them, shall conclusively may be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Guaranty, and all dealings between the Borrower and any enforced regardless of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the existence of such other hand, likewise shall be conclusively presumed to have been had guaranty or consummated in reliance upon this Guarantyguaranties.
Appears in 1 contract
Nature of Guaranty. (a) Each Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations Guarantor's liability under this Guaranty shall be primarycontinuous for so long as any Obligation remains unfulfilled. Guarantor guarantees at all times the full performance and prompt payment when due, whether at maturity or earlier by reason of acceleration or otherwise, of all Obligations. Accordingly, no payments made by any person upon one portion of the Obligations will discharge or diminish the continuing liability of Guarantor in connection with any remaining portions of the Obligations. If any one or more of Debtor or Guarantor are corporations, limited liability companies, or partnerships, it is not necessary for Creditor to inquire into the powers of Debtor or Guarantor or of the officers, directors, managers, members, partners, or agents acting or purporting to act on their behalf, and any Obligations made or created in reliance upon the professed exercise of such powers shall be guaranteed under this Guaranty.
5.1 The Guarantor guarantees that the Obligations will be paid strictly in accordance with the terms of the Loan Documents or other source of liability relating to them, regardless of any law, regulation, or order now or later in effect in any jurisdiction affecting any of such terms or the rights of the Creditor with respect to them. The liability of the Guarantor under this Guaranty shall be absolute and unconditional, unconditional irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, any lack of validity or enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document agreement or instrument relating to which the Borrower or any Guarantor is or may become a partythem;
(ii) any change in the absence time, manner, or place of payment of, or in any action to enforce this Guarantyother term of, all or any of the Credit Agreement Obligations, or any other Loan Document amendment or the waiver or consent by the Administrative Agent of, or any Lender with respect consent to departure from, any of the provisions of this Guaranty, the Credit Agreement agreement or any other Loan Documentinstrument relating to them;
(iii) the existenceany exchange, value release, or condition non-perfection of any collateral, or any release or amendment or waiver of, or failure consent to perfect its Lien againstdeparture from, any security other guaranty, for all or other guaranty any of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); orObligations;
(iv) any time or other action bar, including but not limited to any statute of limitations or circumstances the doctrine of laches, which may bar enforcement of any of the Obligations; or
(v) any other circumstance which might otherwise constitute a legal defense available to, or equitable a discharge of, the Debtor or defense Guarantor.
5.2 Notwithstanding any other provision of this instrument or of any of the Obligations, this Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Obligations is rescinded, recovered as a surety preferential transfer or guarantor; it being agreed fraudulent conveyance, or must otherwise be returned by each the Creditor upon the insolvency, bankruptcy, or reorganization of the Debtor or otherwise all as though such payment had not been made.
5.3 The obligations of the Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until altered, limited, or affected by any proceeding, voluntary or involuntary, involving the final indefeasible payment and performancebankruptcy, in fullinsolvency, receivership, reorganization, liquidation, composition, assignment for the benefit of creditors, dissolution, foreclosure, execution, creditor arrangement, or similar proceeding (an “insolvency proceeding”) of or relating to the Debtor, or by any defense which the Debtor may have by reason of the Guaranteed Obligations and the termination order, decree, or decision of the Revolving Credit Commitments.
(b) Each any court, tribunal, or administrative body resulting from any such insolvency proceeding. The Guarantor represents, warrants acknowledges and agrees that its obligations any interest on the Obligations which accrue after the commencement of any such proceeding (or, if interest on any portion of the Obligations ceases to accrue by operation of law by reason of the commencement of such proceeding, such interest as would have accrued on any such portion of the Obligations if such proceedings had not been commenced) shall be included in the Obligations and payable under this Guaranty are Guaranty.
5.4 Any successor to the Debtor in any bankruptcy, insolvency, receivership, reorganization, liquidation, creditor arrangement, or other insolvency proceeding, including but not and limited to Debtor as a debtor in possession under Chapter 11 of the U.S. Bankruptcy Code, a trustee in bankruptcy, a receiver, an assignee for the benefit of creditors, or a similar fiduciary, shall not be subject deemed a separate entity, but the obligation to repay any sums advanced to, or Obligations of, such successor shall be unconditionally guaranteed by Guarantor under the terms of this Guaranty and no change in the dealings between Debtor or such successor and the Creditor arising out of any such insolvency proceeding shall discharge Guarantor's obligations with respect to any counterclaims, offsets Obligations of Debtor or defenses such successor whether arising before or after the commencement of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the futuresuch a proceeding.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 1 contract
Samples: Guaranty Agreement
Nature of Guaranty. Each Guarantor hereby absolutely and unconditionally guarantees, jointly and severally, as a guarantee of payment and not merely as a guarantee of collection, the due and punctual payment in full of (a) Each Guarantor agrees that this Guaranty is a continuingthe principal of, unconditional guaranty of payment and performance and not of collectionMake-Whole Amount, if any, and that its interest on (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), and any other amounts due under, the Notes when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), (b) all costs, attorneys’ fees and expenses incurred by any holder in connection with the collection or enforcement thereof, and (c) any other sums which may become due under the terms and provisions of the Notes, the Note Purchase Agreement or any other instrument referred to therein’ (all such obligations under this described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). Issuer’s books and records showing the amount of the Guaranteed 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 Guaranteed Obligations. This Guaranty shall not be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) affected by the genuineness, validity, regularity, or enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan Document;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any actioninstrument or agreement evidencing any Guaranteed Obligations, or by any fact or circumstance relating to the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(iv) any other action or circumstances Guaranteed Obligations which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.
(b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon under this Guaranty.
Appears in 1 contract
Nature of Guaranty. (a) Each Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(ia) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Guarantor Subsidiary thereof is or may become a party;
(iib) any structural change in, restructuring of or other similar change of the Borrower or any of its Subsidiaries (including, without limitation, each Guarantor);
(c) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan Document;
(iiid) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(ive) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of proviso in Section 2.22 hereof, its obligations under this Guaranty shall not be discharged until the final and indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.
(b) Each . To the extent permitted by law, each Guarantor representsexpressly waives all rights it may now or in the future have under any statute, warrants or at law or in equity, or otherwise, to compel the Administrative Agent or any Lender to proceed in respect of the Guaranteed Obligations against the Borrower or any other party or against any security for or other guaranty of the payment and performance of the Guaranteed Obligations before proceeding against, or as a condition to proceeding against, such Guarantor. To the extent permitted by law, each Guarantor further expressly waives and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets assert or defenses take advantage of any kind (other than defense based upon the defense failure of payment) the Administrative Agent or any Lender to commence an action in respect of the Guaranteed Obligations against the Administrative AgentBorrower, such Guarantor, any other guarantor or any other party or any security for the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees payment and acknowledges that performance of the Guaranteed Obligations. Each Guarantor agrees that any notice or directive given at any time to the Administrative Agent or any Lender which is inconsistent with the waivers in the preceding two sentences shall be null and void and may be ignored by the Administrative Agent or Lender, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waivedand, in reliance upon addition, may not be pleaded or introduced as evidence in any litigation relating to this Guaranty for the reason that such pleading or introduction would be at variance with the written terms of this Guaranty, and all dealings between the Borrower and any of the Guarantors, on the one hand, and unless the Administrative Agent and the LendersRequired Lenders have specifically agreed otherwise in writing. The foregoing waivers are of the essence of the transaction contemplated by the Loan Documents and, on but for this Guaranty and such waivers, the other hand, likewise shall be conclusively presumed Administrative Agent and Lenders would decline to have been had or consummated in reliance upon this Guarantyenter into the Credit Agreement.
Appears in 1 contract
Nature of Guaranty. (a) Each Guarantor The Company agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
by (ia) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit this Agreement or any other Loan Document or any other agreement, document or instrument to which the any such Borrower or any Guarantor is or may become a party;
, (iib) the absence of any action to enforce this Guaranty, the Credit this Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit this Agreement or any other Loan Document;
, (iiic) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
) or (ivd) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, Company that its obligations under this Guaranty shall not be discharged until the final and indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.
(b) Each Guarantor represents. The Company expressly waives all rights it may now or in the future have under any statute, warrants or at law or in equity, or otherwise, to compel the Administrative Agent or any Lender to proceed in respect of the Guaranteed Obligations against any such Borrower or any other party or against any security for or other guaranty of the payment and performance of the Guaranteed Obligations before proceeding against, or as a condition to proceeding against, the Company. The Company further expressly waives and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets assert or defenses take advantage of any kind (other than defense based upon the defense failure of payment) against the Administrative AgentAgent or any Lender to commence an action in respect of the Guaranteed Obligations against any such Borrower, the Lenders Company or any other party or any security for the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees payment and acknowledges that performance of the Guaranteed Obligations. The Company agrees that any notice or directive given at any time to the Administrative Agent or any Lender which is inconsistent with the waivers in the preceding two sentences shall be null and void and may be ignored by the Administrative Agent or Lender, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waivedand, in reliance upon addition, may not be pleaded or introduced as evidence in any litigation relating to this Guaranty for the reason that such pleading or introduction would be at variance with the written terms of this Guaranty, and all dealings between the Borrower and any of the Guarantors, on the one hand, and unless the Administrative Agent and the LendersRequired Lenders have specifically agreed otherwise in writing. The foregoing waivers are of the essence of the transaction contemplated by the Loan Documents and, on but for this Guaranty and such waivers, the other hand, likewise shall be conclusively presumed Agents and Lenders would decline to have been had or consummated in reliance upon enter into this GuarantyAgreement.
Appears in 1 contract
Nature of Guaranty. (a) Each Guarantor hereby acknowledges and agrees that this Guaranty (a) is a continuing, unconditional guaranty of payment and performance and not only of collection, collection and that its obligations under this Guaranty Guarantor is liable hereunder as a primary obligor, (b) shall only be primary, absolute and unconditional, irrespective of, and unaffected by:
deemed discharged after the earlier of (i) such time as the genuinenessDebt has been indefeasibly paid in full, validity, regularity, enforceability or and there has expired the maximum possible period thereafter during which any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the payment made by Borrower or any Guarantor is others to Administrative Agent (for the benefit of the Lenders) with respect to the Loan could be deemed a preference under the Bankruptcy Code or may become a party;
(ii) the absence of any action subject to enforce this GuarantyBorrower confirming in writing to Administrative Agent, the Credit Agreement or any other Loan Document or the waiver or consent by the in a manner reasonably satisfactory to Administrative Agent or (which may include, at Administrative Agent’s request, a modification to the Loan Documents reflecting the same), that Borrower waives the right to perform any Lender with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan Document;
additional Permitted Alteration either (iiiA) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty payment and/or performance in full of the Guaranteed Obligations or (B) the payment of all costs incurred in connection with the Work without any actionlien having been filed, and the expiration of the statutory mechanic’s lien period applicable to such work without any lien having been filed, provided, however, that if a lien is filed during such period (or after such period, but only if under applicable law such lien “relates back” to the absence date of the filing of any action, by prior lien) then this Guaranty shall survive as to such claim of lien (and any other lien which may “relate back” as a result of the Administrative Agent or any Lender in respect filing of such security lien) until such claim is finally resolved and, if applicable, paid in full and such lien is discharged, (c) shall not be reduced, released, discharged, satisfied or guaranty otherwise impacted in connection with (including, without limitation, the release of any such security or guaranty); or
(ivi) any other action act or circumstances which might otherwise constitute occurrence that might, but for the provisions hereof, be deemed a legal or equitable reduction, satisfaction, discharge or defense release and/or (ii) Administrative Agent’s and/or Lender’s enforcement of a surety or guarantor; it being agreed by each Guarantor that, subject to remedies under the first sentence of Section 2.2, its obligations under this Guaranty Loan Documents and (d) shall not be discharged until survive the final indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.
(b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not foregoing and shall not be subject to merge with any counterclaimsresulting foreclosure deed, offsets deed in lieu or defenses of any kind similar instrument (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the futureif any).
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 1 contract
Samples: Completion Guaranty (Brookfield DTLA Fund Office Trust Investor Inc.)
Nature of Guaranty. (a) Each Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty Agreement shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(ia) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit this Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Guarantor is or may become a party;
(iib) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan Document;
(iiic) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(ivd) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, that its obligations under this Guaranty shall not be discharged until the final and indefeasible payment and performance, in full, of the Guaranteed Obligations and Obligations. Each Guarantor expressly waives all rights it may now or in the termination future have under any statute (including, without limitation, North Carolina General Statutes Section 26-7, ET SEQ. or similar law), or at law or in equity, or otherwise, to compel the Administrative Agent or any Lender to proceed in respect of the Revolving Credit Commitments.
(b) Guaranteed Obligations against the Borrower or any other party or against any security for or other guaranty of the payment and performance of the Guaranteed Obligations before proceeding against, or as a condition to proceeding against, such Guarantor. Each Guarantor represents, warrants further expressly waives and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets assert or defenses take advantage of any kind (other than defense based upon the defense failure of payment) the Administrative Agent or any Lender to commence an action in respect of the Guaranteed Obligations against the Administrative AgentBorrower, any Guarantor or any other party or any security for the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees payment and acknowledges that performance of the Guaranteed Obligations. Each Guarantor agrees that any notice or directive given at any time to the Administrative Agent or any Lender which is inconsistent with the waivers in the preceding two sentences shall be null and void and may be ignored by the Administrative Agent or Lender, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waivedand, in reliance upon addition, may not be pleaded or introduced as evidence in any litigation relating to this Guaranty for the reason that such pleading or introduction would be at variance with the written terms of this Guaranty, and all dealings between the Borrower and any of the Guarantors, on the one hand, and unless the Administrative Agent and the LendersRequired Lenders have specifically agreed otherwise in writing. The foregoing waivers are of the essence of the transaction contemplated by the Loan Documents and, on but for this Guaranty and such waivers, the other hand, likewise shall be conclusively presumed Administrative Agent and Lenders would decline to have been had or consummated in reliance upon enter into this GuarantyAgreement.
Appears in 1 contract
Nature of Guaranty. (a) Each Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Guarantor Subsidiary thereof is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan Document;; \
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(iv) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; it being agreed by each Guarantor that, subject to the first sentence of proviso in Section 2.23.01, its obligations under this Guaranty shall not be discharged until except pursuant to the final indefeasible payment and performance, in full, terms of the Guaranteed Obligations and the termination of the Revolving Credit CommitmentsSection 3.09.
(b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 GuarantyGuaranty contained in this, and all dealings between the Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 1 contract
Samples: Guaranty Agreement (Blue Rhino Corp)
Nature of Guaranty. (a) Each Subsidiary Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(i) : the genuineness, validity, regularity, enforceability or any future amendment of, or change in, the Credit Agreement or any other Loan Document or any other agreement, document or instrument to which the Borrower or any Subsidiary Guarantor is or may become a party;
(ii) ; the absence of any action to enforce this Guaranty, the Credit Agreement or any other Loan Document or the any waiver or consent by the Administrative Agent or any Lender with respect to any of the provisions of this Guaranty, the Credit Agreement or any other Loan Document;
(iii) ; the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any Lender in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty); or
(iv) or any other action or circumstances which that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantorSubsidiary Guarantor; it being agreed by each Subsidiary Guarantor that, subject to the first sentence of Section 2.2, its obligations under this Guaranty shall not be discharged until the final indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Revolving Credit Commitments.
(ba) Each Subsidiary Guarantor represents, warrants and agrees that its obligations under this Guaranty are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in the future.
(cb) Each Subsidiary Guarantor hereby agrees and acknowledges that the Guaranteed 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 Borrower and any of the Subsidiary Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
Appears in 1 contract
