Common use of Terms of Guaranty Clause in Contracts

Terms of Guaranty. The terms of this Section 15 and Summit’s obligations hereunder are a continuing and irrevocable obligation of Summit and shall remain in full force and effect until payment, performance and/or observation in full of the obligations hereunder. Summit’s guaranty and liability under this Section 15 are absolute and unconditional and shall not be affected, released, terminated, discharged or impaired, in whole or in part, by any or all of the following: (i) any amendment or modification of the terms of this Agreement; (ii) any assignment by Purchaser of this Agreement in whole or in part; (iii) any failure or delay of Purchaser to exercise, or any lack of diligence in exercising, any right or remedy with respect to this Agreement; (iv) any dealings or transactions between Purchaser and any Seller(s) or any of their affiliates relating to this Agreement, whether or not Summit shall be a party to or cognizant of the same; (v) any guaranty now or hereafter executed by Summit or its affiliates or the release of Summit or its affiliates thereunder or the failure of any other party to assume liability for the payment in connection with this Agreement, whether by operation of law or otherwise; (vi) Purchaser’s consent to any assignment or successive assignments of this Agreement; (vii) the failure to give any Seller notice of any breach of this Agreement; and/or (viii) any other circumstance which might constitute a legal or equitable discharge or defense available to Summit, whether similar or dissimilar to the foregoing (including any bankruptcy or insolvency of any Seller). Summit expressly waives the following: (w) notice of acceptance of this Agreement; (x) any requirement of promptness, diligence, presentment, protest, notice of dishonor and notice of demand; (y) the right to trial by jury in any action or proceeding of any kind arising on, under, out of, or by reason of or relating, in any way, to its obligations under this Section 15, or the interpretation, breach or enforcement of such obligations; and (z) all rights of subrogation and any other claims that it may now or hereafter acquire against any Seller or any insider that arise from the existence, payment, performance or enforcement of Summit’s obligations under this Section 15 until such time as Summit’s obligations under this Section 15 are performed and paid in full. Summit’s guaranty under this Section 15 is a present guaranty of payment and performance and not of collection.

Appears in 4 contracts

Samples: Real Estate Purchase and Sale Agreement (Summit Hotel Properties, Inc.), Real Estate Purchase and Sale Agreement (Summit Hotel Properties, Inc.), Real Estate Purchase and Sale Agreement (American Realty Capital Hospitality Trust, Inc.)

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Terms of Guaranty. If at any xxxx Xxxxxx fails, neglects or refuses to perform any of its Obligations as expressly provided in the Supply Agreement after the expiration of any applicable grace or cure period provided therein, then, upon receipt of written notice from a duly authorized officer of Buyer specifying the particular failure, to the extent that Seller has insufficient assets, and is unable to satisfy such Obligations, each Sponsor shall perform, or cause to be performed, any such Obligations on a pro rata basis as set forth on Exhibit A hereto and as thereby required pursuant to and in accordance with the terms and conditions of the Supply Agreement up to the applicable Cap. In connection with this Guaranty, except as otherwise expressly set forth herein: (a) The terms Sponsors hereby waive (i) notice of (x) acceptance hereof, (y) the creation, existence or acquisition of all or any part of the Obligations, or (z) consent to any modifications thereof; (ii) notice of adverse change in Seller’s financial condition or of any other fact which might substantially increase Buyer’s risk; (iii) notice of presentment for payment, demand or protest and notice thereof as to any instrument, except as otherwise expressly set forth herein; (iv) notice of Seller’s default; and (v) all other notices and demands to which Guarantor might otherwise be entitled. (b) To the extent permitted by applicable law, Sponsors hereby further waive any and all rights, by statute or otherwise, to require Buyer to institute suit or otherwise exhaust its rights and remedies against Seller. Sponsors further waive any defense arising by reason of any disability or other defense of Seller or by reason of cessation of any cause whatsoever of the liability of Seller other than through payment or performance of the Obligations. (c) Sponsors hereby consent and agree that, without notice to or subsequent consent by Sponsors and without affecting or impairing the obligations of Sponsors as herein set forth, Buyer may, by action or inaction, compromise, settle, waive, extend, refuse to enforce, release (in whole or in part), or otherwise grant indulgences to Seller in respect to any or all of the Obligations and may amend, modify or extend in any manner the Supply Agreement or any other documents or agreements relating to the Obligations other than this Section 15 Guaranty. (d) Sponsors hereby consent and Summit’s obligations hereunder are a continuing agree that Buyer shall be under no obligation to marshal any assets in favor of Sponsors. (e) Sponsors hereby consent and agree that this Guaranty is an absolute, unconditional, irrevocable obligation of Summit and guaranty (up to the Cap) and, to the extent permitted by applicable law, shall remain in full force and effect until paymentwithout regard to future changes in conditions, performance and/or observation in full including change of the obligations hereunder. Summit’s guaranty and liability under this Section 15 are absolute and unconditional and shall not be affected, released, terminated, discharged or impaired, in whole or in part, by any or all of the following: (i) any amendment or modification of the terms of this Agreement; (ii) any assignment by Purchaser of this Agreement in whole or in part; (iii) any failure or delay of Purchaser to exerciselaw, or any lack of diligence in exercising, any right invalidity or remedy irregularity with respect to this Agreement; (iv) any dealings or transactions between Purchaser the execution and any Seller(s) or any of their affiliates relating to this Agreement, whether or not Summit shall be a party to or cognizant of the same; (v) any guaranty now or hereafter executed by Summit or its affiliates or the release of Summit or its affiliates thereunder or the failure delivery of any other party to assume liability for the payment in connection agreement by buyer with this Agreement, whether by operation of law or otherwise; (vi) Purchaser’s consent to any assignment or successive assignments of this Agreement; (vii) the failure to give any Seller notice of any breach of this Agreement; and/or (viii) any other circumstance which might constitute a legal or equitable discharge or defense available to Summit, whether similar or dissimilar respect to the foregoing (including any bankruptcy or insolvency of any Seller). Summit expressly waives the following: (w) notice of acceptance of this Agreement; (x) any requirement of promptness, diligence, presentment, protest, notice of dishonor and notice of demand; (y) the right to trial by jury in any action or proceeding of any kind arising on, under, out of, or by reason of or relating, in any way, to its obligations under this Section 15, or the interpretation, breach or enforcement of such obligations; and (z) all rights of subrogation and any other claims that it may now or hereafter acquire against any Seller or any insider that arise from the existence, payment, performance or enforcement of Summit’s obligations under this Section 15 until such time as Summit’s obligations under this Section 15 are performed and paid in full. Summit’s guaranty under this Section 15 is a present guaranty of payment and performance and not of collectionObligations.

Appears in 2 contracts

Samples: Supply Agreement (Tpi Composites, Inc), Supply Agreement (Tpi Composites, Inc)

Terms of Guaranty. The terms (a) This Guaranty is one of payment and performance, not of collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Guaranty, regardless of whether an action is brought against Parent, Merger Sub or the Surviving Corporation. (b) Except as otherwise provided herein and without amending or limiting the other provisions of this Section 15 and Summit’s obligations hereunder are a continuing and irrevocable obligation of Summit and shall remain in full force and effect until paymentGuaranty, performance and/or observation in full the liability of the Guarantor under this Guaranty shall, to the fullest extent permitted under applicable Law, be absolute, irrevocable and unconditional irrespective of: (i) any change in the corporate existence, structure or ownership of Parent, Merger Sub, the Surviving Corporation or the Guarantor, or any insolvency, bankruptcy, reorganization, moratorium or other similar proceeding affecting Parent, Merger Sub, the Surviving Corporation or the Guarantor or any of their respective assets; (ii) the existence of any claim, set-off or other right that (x) the Guarantor may have at any time against Parent, Merger Sub, the Surviving Corporation, the Guaranteed Parties or the Company or (y) Parent or Merger Sub may have at any time against the Company or the Guaranteed Parties, in each case, whether in connection with any Guaranteed Obligations or otherwise; or (iii) the addition, substitution or release of any Person now or hereafter liable with respect to the Guaranteed Obligations or otherwise interested in the transactions contemplated by the Merger Agreement. (c) The Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of any of the Guaranteed Obligations and notice of or proof of reliance by the Company or the Guaranteed Parties upon this Guaranty or acceptance of this Guaranty. The Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guaranty, and all dealings between Parent, Merger Sub or the Guarantor, on the one hand, and the Company, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. (d) The Guaranteed Parties shall not be obligated to file any claim relating to any Guaranteed Obligations in the event that the Surviving Corporation becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Parties to so file shall not affect the Guarantor’s obligations hereunder. Summit’s guaranty In the event that any payment to the Guaranteed Parties in respect of any Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligations as if such payment had not been made. (e) The Guarantor will not exercise any rights of subrogation or contribution against the Surviving Corporation, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of this Guaranty unless and liability under this until the Guaranteed Obligations have been indefeasibly paid in full. (f) Subject to the terms of Section 15 are absolute 1 herein above, if the Surviving Corporation fails to discharge its Guaranteed Obligations when due in accordance with the applicable terms of the Merger Agreement, then the Guaranteed Parties may at any time and unconditional and shall not be affected, released, terminated, discharged or impairedfrom time to time, in whole their sole discretion, and so long as the Surviving Corporation has failed to discharge the Guaranteed Obligations, take any and all actions available hereunder or under applicable Law to collect any of the Guarantor’s liabilities hereunder in partrespect of the Guaranteed Obligations. The Guarantor shall pay, or cause to be paid, to the Guaranteed Parties not later than the third (3rd) day following receipt of a written notice by the Guaranteed Parties of the failure of the Surviving Corporation to pay any or all of the following: Guaranteed Obligations in accordance with the Merger Agreement, the full amount then due and payable by the Surviving Corporation under the Merger Agreement in cash by wire transfer to the account set forth in such notice. (ig) any amendment No delay or modification failure on the part of the terms Guaranteed Parties in the exercise of this Agreement; (ii) any assignment by Purchaser of this Agreement in whole or in part; (iii) any failure or delay of Purchaser to exercise, or any lack of diligence in exercising, any right or remedy with respect to this Agreement; (iv) shall operate as a waiver thereof, and no single or partial exercise by the Guaranteed Parties of any dealings right or transactions between Purchaser and any Seller(s) remedy shall preclude other or any of their affiliates relating to this Agreement, whether or not Summit shall be a party to or cognizant of the same; (v) any guaranty now or hereafter executed by Summit or its affiliates further exercise thereof or the release of Summit or its affiliates thereunder or the failure exercise of any other party to assume liability for right or remedy. (h) The Guarantor agrees, in the payment in connection with event that this Agreement, whether Guaranty is enforced or collected by operation of law or otherwise; (vi) Purchaser’s consent to any assignment or successive assignments of this Agreement; (vii) the failure to give any Seller notice of any breach of this Agreement; and/or (viii) any other circumstance which might constitute a legal or equitable discharge or defense available to Summit, whether similar or dissimilar to the foregoing (including any bankruptcy or insolvency of any Seller). Summit expressly waives the following: (w) notice of acceptance of this Agreement; (x) any requirement of promptness, diligence, presentment, protest, notice of dishonor and notice of demand; (y) the right to trial by jury in any action or proceeding of any kind arising on, under, out of, or by reason of or relating, in any waythrough an attorney at law, to its obligations under this Section 15pay all costs of collection incurred by the Guaranteed Parties, or the interpretationincluding, breach or enforcement of such obligations; and (z) all rights of subrogation and any other claims that it may now or hereafter acquire against any Seller or any insider that arise from the existencewithout limitation, payment, performance or enforcement of Summit’s obligations under this Section 15 until such time as Summit’s obligations under this Section 15 are performed and paid in full. Summit’s guaranty under this Section 15 is a present guaranty of payment and performance and not of collectionreasonable attorneys’ fees.

Appears in 2 contracts

Samples: Merger Agreement (A.C. Moore Arts & Crafts, Inc.), Limited Guaranty (A.C. Moore Arts & Crafts, Inc.)

Terms of Guaranty. Guarantor absolutely, unconditionally and irrevocably guarantees to Purchaser the prompt payment and performance when due of the Guaranteed Obligations. (a) The terms obligations, covenants, agreements and duties of Guarantor under this Section 15 and Summit’s obligations hereunder are a continuing and irrevocable Guaranty shall in no way be affected or impaired by reason of the occurrence, from time to time, of any of the following with respect to the Contract, even though notice may not have been given to, or received from, Guarantor, or the further consent of Guarantor thereto may not have been obtained: (i) The waiver by Purchaser of the performance or observance of any agreement, covenant, term or condition to be performed or observed by Seller; (ii) The extension of the time for the payment of any sums owing or payable under the Contract or the time for the performance of any other obligation under or arising out of Summit and shall remain in full force and effect until paymentor on account of the Contract; (iii) The supplementing, performance and/or observation in full modification or amendment (whether material or otherwise) of the Contract or any of the obligations hereunder. Summit’s guaranty and liability under this Section 15 are absolute and unconditional and shall not be affectedof Seller or Purchaser set forth in the Contract; (iv) Any failure, releasedomission, terminateddelay or lack on the part of Purchaser or any other person to enforce, discharged assert or impairedexercise any right, power or remedy conferred on such person in whole or in part, by any or all virtue of the following: (i) any amendment or modification of the terms of this Agreement; (ii) any assignment by Purchaser of this Agreement in whole or in part; (iii) any failure or delay of Purchaser to exerciseContract, or any lack action on Purchaser’s or such person’s part granting indulgence or extension in any form; (v) The voluntary or involuntary liquidation, dissolution, marshalling of diligence in exercisingassets and liabilities, any right receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or remedy with respect to this Agreement; (iv) any dealings readjustment of, or transactions between Purchaser and any Seller(s) other similar application, action or proceeding affecting Seller or Guarantor, or any of their affiliates relating to this Agreement, whether assets; (vi) The release of Seller from the performance or not Summit shall be a party to or cognizant observance of any of the same; (v) any guaranty now agreements, covenants, terms or hereafter executed by Summit or its affiliates or conditions contained in the release of Summit or its affiliates thereunder or the failure of any other party to assume liability for the payment in connection with this Agreement, whether Contract by operation of law or otherwise; (vi) Purchaser’s consent to any assignment or successive assignments of this Agreement; or (vii) The termination of the failure to give any Seller Contract. (b) Guarantor hereby acknowledges that this Guaranty (i) is an absolute and unconditional guaranty of payment, and not merely of collection; and (ii) is a direct and primary obligation of Guarantor (and Guarantor’s obligations hereunder are not as a surety). Guarantor hereby waives diligence and all demands, protests, presentments and notices of every kind and nature, including, but not limited to, notices of presentment, demand for payment or performance, protest, notice of any breach default or nonpayment, notice of dishonor, notice of protest and notice of acceptance of this Agreement; and/or Guaranty and the creation, renewal, extension, modification or accrual of any of the obligations Guarantor has hereby guaranteed. (viiic) Guarantor hereby waives any other circumstance and all legal requirements that Purchaser institute any action or proceeding, at law or in equity, against Seller or anyone else, or exhausts its remedies against Seller or anyone else, in respect of the Guaranteed Obligations as a condition precedent to bringing an action or proceeding against Guarantor under this Guaranty, and Guarantor hereby acknowledges that Guarantor shall remain liable hereunder jointly and severally with Seller and as a principal until the Guaranteed Obligations shall have been satisfied, notwithstanding any fact, act, event or occurrence which might constitute otherwise operate as a legal or equitable discharge of a surety or defense available guarantor. All rights and remedies afforded to Summit, whether similar or dissimilar to the foregoing (including any bankruptcy or insolvency of any Seller). Summit expressly waives the following: (w) notice of acceptance of this Agreement; (x) any requirement of promptness, diligence, presentment, protest, notice of dishonor and notice of demand; (y) the right to trial by jury in any action or proceeding of any kind arising on, under, out of, or Purchaser by reason of this Guaranty are separate and cumulative rights and remedies and it is agreed that no one of such rights or relatingremedies, in whether exercised by Purchaser or not, shall be deemed to be an exclusion of any wayof the other rights or remedies available to Purchaser and shall not limit or prejudice any other legal or equitable right or remedy which Purchaser may have. (d) Guarantor understands that the exercise by Purchaser of certain rights and remedies may affect or eliminate Guarantor’s right of subrogation against Seller and that Guarantor may therefore incur partially or totally nonreimbursable liability hereunder. Nevertheless, Guarantor hereby authorizes and empowers Purchaser, its successors, endorsees and/or assigns, to exercise in its or their sole discretion, any rights and remedies, or any combination thereof, which may then be available, it being the purpose and intent of Guarantor that the obligations hereunder shall be absolute, continuing, independent and unconditional under any and all circumstances. Guarantor subordinates all indebtedness owing to Guarantor from Seller to the payment of any amounts due to Purchaser with respect to the Guaranteed Obligations. In the event that Guarantor shall advance or become obligated to pay any sums under this Guaranty, Guarantor agrees that Guarantor shall have no right of subrogation or reimbursement against Seller unless and until all amounts due under this Guaranty shall have been paid in full and all of Guarantor’s obligations under the Guaranty shall have been fully performed. To the extent Guarantor’s waiver of these rights of subrogation or reimbursement as set forth in this Section 15Guaranty are found by a court of competent jurisdiction to be void or voidable for any reason, or the interpretation, breach or enforcement of such obligations; and (z) all Guarantor agrees that its rights of subrogation and reimbursement against Seller shall be junior and subordinate as to lien, time of payment and in all other respects to Purchaser’s rights against Seller and to Purchaser’s right, title and interest in such collateral or security. Nothing herein contained is intended or shall be construed to give Guarantor any other claims that it may now right of subrogation in or hereafter acquire against any Seller under the Contracts or any insider that arise from right to participate in any way therein, or in the existenceright, paymenttitle or interest of Purchaser in or to the Contracts, performance or notwithstanding any payments made by Guarantor under this Guaranty, all such rights of subrogation and participation being hereby expressly waived and released. (e) Guarantor unconditionally waives any defense to the enforcement of Summitthis Guaranty, including, without limitation, the right to plead any and all statutes of limitations as a defense to Guarantor’s liability under this Guaranty, other than the defense that the Guaranteed Obligations have been performed in full or that the Guaranteed Obligations are not due and payable or performable pursuant to the express terms of the Contract. (f) This Guaranty shall survive the exercising of Purchaser’s rights and remedies under the Contract, it being agreed that this Guaranty shall terminate only upon the earlier to occur of (i) full payment and performance of the Guaranteed Obligations, (ii) the full satisfaction and performance of all of Seller’s obligations under this the Contract or (iii) a termination of the Contract pursuant to Section 15 until such time as Summit’s obligations under this Section 15 are performed and paid in full. Summit’s guaranty under this Section 15 is a present guaranty of payment and performance and not of collection20(a) thereof.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Sothebys)

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Terms of Guaranty. The terms (a) This Guaranty is one of this Section 15 and Summit’s obligations hereunder are a continuing and irrevocable obligation of Summit and shall remain in full force and effect until payment, performance and/or observation not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Guaranty, irrespective of whether any action is brought against the Buyer or any other Person or whether Buyer or any other Person are joined in full any such action or actions. (b) The liability of the obligations hereunder. Summit’s guaranty and liability Guarantor under this Section 15 are Guaranty shall, to the fullest extent permitted under applicable law, be absolute and unconditional and shall not be affected, released, terminated, discharged or impaired, in whole or in part, by any or all of the followingirrespective of: (i) any amendment the value, genuineness, validity, regularity, illegality or modification enforceability of the terms of this AgreementNote; (ii) any assignment by Purchaser change in the manner, place or terms of this Agreement payment or performance, or any change or extension of the time of payment or performance of, renewal or alteration of, any Guaranteed Obligation, any escrow arrangement or other security therefor, any liability incurred directly or indirectly in whole respect thereof, or in partany amendment or waiver of or any consent to any departure from the terms of the Note; (iii) the existence of any failure claim, set-off or delay of Purchaser to exerciseother right that the Guarantor may have at any time against Buyer or the Seller, whether in connection with any Guaranteed Obligation or any lack of diligence in exercising, any right otherwise; or remedy with respect to this Agreement; (iv) any dealings other act or transactions between Purchaser omission that may or might in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than payment of the Guaranteed Obligations). (c) The Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of any of the Guaranteed Obligations and notice of or proof of reliance by the Seller upon this Guaranty or acceptance of this Guaranty. The Guaranteed Obligations, and any Seller(s) of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guaranty, and all dealings between Buyer or the Guarantor, on the one hand, and the Seller, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. When pursuing its rights and remedies hereunder against the Guarantor, the Seller shall be under no obligation to pursue such rights and remedies it may have against Buyer or any other Person for the Guaranteed Obligations or any right of their affiliates offset with respect thereto, and any failure by the Seller to pursue such other rights or remedies or to collect any payments from Buyer or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Seller of Buyer or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Seller. (d) The Seller shall not be obligated to file any claim relating to this Agreementany Guaranteed Obligation in the event that Buyer becomes subject to a bankruptcy, whether reorganization or not Summit shall be a party to or cognizant of the same; (v) any guaranty now or hereafter executed by Summit or its affiliates or the release of Summit or its affiliates thereunder or similar proceeding, and the failure of the Seller to so file shall not affect the Guarantor’s obligations hereunder. In the event that any other party payment to assume liability for the payment Seller in connection with this Agreement, whether by operation of law or otherwise; (vi) Purchaser’s consent to any assignment or successive assignments of this Agreement; (vii) the failure to give any Seller notice respect of any breach of this Agreement; and/or (viii) Guaranteed Obligation is rescinded or must otherwise be returned for any other circumstance which might constitute a legal or equitable discharge or defense available to Summitreason whatsoever, whether similar or dissimilar the Guarantor shall remain liable hereunder with respect to the foregoing (including any bankruptcy or insolvency of any Seller). Summit expressly waives the following: (w) notice of acceptance of this Agreement; (x) any requirement of promptness, diligence, presentment, protest, notice of dishonor and notice of demand; (y) the right to trial by jury in any action or proceeding of any kind arising on, under, out of, or by reason of or relating, in any way, to its obligations under this Section 15, or the interpretation, breach or enforcement of Guaranteed Obligation as if such obligations; and (z) all rights of subrogation and any other claims that it may now or hereafter acquire against any Seller or any insider that arise from the existence, payment, performance or enforcement of Summit’s obligations under this Section 15 until such time as Summit’s obligations under this Section 15 are performed and paid in full. Summit’s guaranty under this Section 15 is a present guaranty of payment and performance and had not of collectionbeen made.

Appears in 1 contract

Samples: Guaranty (Phoenix Footwear Group Inc)

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