The Guaranty. Subject to Section 2(j) below: (a) Each Pledgor hereby jointly and severally with the other Pledgor guarantees, as a primary obligor and not merely as a surety to the Secured Party and its successors and permitted assigns, the prompt payment in full when due (whether at stated maturity, by required prepayment, declaration, demand, by acceleration or otherwise) of the Borrower’s obligations under the Facility Letter and in accordance with the terms thereof (such obligations being herein collectively called the “Guaranteed Obligations”). Each Pledgor hereby jointly and severally agrees that if the Borrower or other Pledgor shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of the Guaranteed Obligations, such Pledgor will promptly pay the same in cash, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal. (b) The obligations of the Pledgors under Section 2(a) shall constitute a guarantee of payment and, to the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Pledgors under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full). (c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise. (d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations. (e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, the obligations of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a). (f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213. (g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash. (h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding. (i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks. (j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement. (k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement. (l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the amount of the Guaranteed Obligations, whether matured or unmatured. (m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
Appears in 3 contracts
Samples: Guarantee and Pledge Agreement (Carlyle Group Management L.L.C.), Guarantee and Pledge Agreement (Carlyle Financial Services, Ltd.), Guarantee and Pledge Agreement (Carlyle Financial Services, Ltd.)
The Guaranty. Subject In order to Section 2(j) below:
(a) Each Pledgor induce the Lenders to enter into this Agreement and any Bank Product Provider to enter into any Bank Product and to extend credit hereunder and thereunder and in recognition of the direct benefits to be received by the Guarantors from the Extensions of Credit hereunder and any Bank Product, each of the Guarantors hereby agrees with the Administrative Agent, the Lenders and the Bank Product Provider as follows: each Guarantor hereby unconditionally and irrevocably jointly and severally with the other Pledgor guarantees, guarantees as a primary obligor and not merely as a surety to the Secured Party full and its successors and permitted assigns, the prompt payment in full when due (due, whether at stated maturity, by required prepayment, declaration, demand, by acceleration or otherwise) of the Borrower’s obligations under the Facility Letter and in accordance with the terms thereof (such obligations being herein collectively called the “Guaranteed Obligations”). Each Pledgor hereby jointly and severally agrees that if the Borrower or other Pledgor shall fail to pay in full when due (whether at stated upon maturity, by acceleration or otherwise) , of any and all Obligations. If any or all of the Guaranteed Obligations, such Pledgor will promptly pay the same in cash, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
(b) The obligations of the Pledgors under Section 2(a) shall constitute a guarantee of payment and, to the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Pledgors under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, the obligations of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant hereunder or under any Bank Product, each Guarantor unconditionally promises to pay such Obligations to the terms of this Agreement shall Administrative Agent, the Lenders, the Bank Product Providers, or their respective order, on demand, together with any and all reasonable expenses which may be shared as between the Pledgors as determined in good faith incurred by the general partners of Administrative Agent or the Pledgors, such that each Pledgor shall bear its share of any such obligation Lenders in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by collecting any of the Pledgors Obligations. The Guaranty set forth in respect thereof, then each Pledgor agrees this Article X is a guaranty of timely payment and not of collection. Notwithstanding any provision to make such payment(s) as between themselves so that following such payment(s) each the contrary contained herein or in any other of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this AgreementCredit Documents, to the indefeasible payment in full in cash extent the obligations of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor Guarantor shall be enforced and performance received by adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of each such Pledgor as trustee for the Secured Party and the proceeds thereof Guarantor hereunder shall be paid over limited to the Secured Party on account of the Guaranteed Obligationsmaximum amount that is permissible under applicable law (whether federal or state and including, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the amount of the Guaranteed Obligations, whether matured or unmaturedBankruptcy Code).
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
Appears in 2 contracts
Samples: Credit Agreement (Enova International, Inc.), Credit Agreement (Cash America International Inc)
The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor The Guarantors hereby unconditionally jointly and severally with the other Pledgor guarantees, as a primary obligor and not merely as a surety guarantee to the Secured Party Administrative Agent and its the Lenders, and their successors and permitted assigns, the prompt full and punctual payment in full when due or performance (whether at stated maturity, by required prepayment, declaration, demand, by acceleration or otherwise) of the Borrower’s obligations Obligations, including (i) principal of and interest on the Loans, (ii) all fees and other amounts and Obligations from time to time owing to the Administrative Agent and the Lenders by the Borrower and each other Obligor under the Facility Letter and this Agreement or under any other Loan Document, in each case strictly in accordance with the terms hereof and thereof and (iii) the punctual and faithful performance, keeping, observance and fulfillment by the Borrower and Guarantors of all the agreements, conditions, covenants and obligations of the Borrower and Guarantors contained in the Loan Documents (such obligations being herein collectively called the “Guaranteed Obligations”). Each Pledgor The Guarantors hereby further jointly and severally agrees agree that if the Borrower or any other Pledgor Obligor shall fail to pay any amount in full when due or perform any such obligation (whether at stated maturity, by acceleration or otherwise) any of ), the Guaranteed Obligations, such Pledgor Guarantors will promptly pay the same or perform such obligation at the place and in cashthe manner specified herein or in the relevant Loan Document, as the case may be, without any demand or notice whatsoever, and that in the case of any extension of time of payment or performance or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full or performed when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
(b) The obligations of the Pledgors under Section 2(a) shall constitute a guarantee of payment and, to the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Pledgors under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, the obligations of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
Appears in 2 contracts
Samples: Credit Agreement (Harrow Health, Inc.), Credit Agreement (Establishment Labs Holdings Inc.)
The Guaranty. Subject The Guarantor guarantees to Section 2(j) below:
the Lender and becomes surety to the Lender for: (a) Each Pledgor hereby jointly payment of any and severally with the other Pledgor guarantees, as a primary obligor all sums now or hereafter due and not merely as a surety owing to the Secured Party and its successors and permitted assigns, the prompt payment in full when due (whether at stated maturity, Lender by required prepayment, declaration, demand, by acceleration or otherwise) of the Borrower’s obligations under the Facility Letter and in accordance with the terms thereof (such obligations being herein collectively called the “Guaranteed Obligations”). Each Pledgor hereby jointly and severally agrees that if the Borrower or other Pledgor shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of the Guaranteed Obligations, such Pledgor will promptly pay the same in cash, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
(b) The obligations of the Pledgors under Section 2(a) shall constitute a guarantee of payment and, to the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Pledgors under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of or in connection with any proceedings and all existing or future indebtedness, liability or obligation of every kind, nature, type, and variety owed by the Borrower to the Lender from time to time, as a result of or in insolvencyconnection with any credit accommodation, bankruptcy loan guaranty, overdraft, or reorganization other agreement or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreementtransaction, it shall waive any claim and shall not exercise any right or remedy, whether direct or indirect, arising absolute or contingent, primary or secondary, joint or several, unconditional or conditional, known or unknown, liquidated or unliquidated, including all renewals, extensions, substitutions, and modifications thereof, no matter when or how created, arising, evidenced or acquired, and whether or not presently contemplated or anticipated and, including, but not limited to, all amounts of principal, interest, penalties, reimbursements, advancements, escrows, collection expenses, and fees; and (b) the timely, complete, continuous, and strict performance and observance by reason the Borrower of any performance by it and all of its guarantee the terms, covenants, agreements and conditions contained in Section 2(a)any and all existing or future documents, whether by subrogation instruments, agreements, and writing of every kind, nature, type, and variety which evidence, reflect, embody or otherwisegive rise to any and all existing and future indebtedness, against liabilities, and obligations of any kind of the Borrower or any other Pledgor of any of to the Guaranteed Obligations or any security for any of Lender. As used in this Guaranty, the Guaranteed term “Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, ” shall refer to the obligations of payment, performance and indemnification which the Borrower under the Facility Letter Guarantor has undertaken and assumed pursuant to this Guaranty. This is a continuing guaranty, and all liabilities to which it applies or may apply shall be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being conclusively deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a)been created in reliance hereon.
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
Appears in 2 contracts
Samples: Guaranty and Suretyship Agreement (Unilife Corp), Guaranty and Suretyship Agreement (Unilife Corp)
The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor of the Guarantors hereby absolutely and unconditionally guarantees, jointly and severally with the other Pledgor guaranteesseverally, as a primary obligor and not merely as surety, upon the occurrence of a surety to the Secured Party and its successors and permitted assignsTrigger Event, the prompt full and punctual payment in full when due (whether at stated maturity, by required prepayment, declaration, demand, by upon acceleration or early termination or otherwise, and at all times thereafter) and performance of the Borrower’s obligations under Obligations, including without limitation any such Obligations incurred or accrued during the Facility Letter pendency of any bankruptcy, insolvency, receivership or other similar proceeding, whether or not allowed or allowable in such proceeding being referred to. Upon the occurrence of a Trigger Event and the failure by the Borrowers to pay punctually any such amount, each of the Guarantors, jointly and severally, agrees that it shall forthwith on demand pay to the Administrative Agent for the benefit of the Lenders, the amount not so paid at the place and in accordance with the terms thereof (such obligations being herein collectively called the “Guaranteed Obligations”). Each Pledgor hereby jointly and severally agrees that if the Borrower or other Pledgor shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of the Guaranteed Obligations, such Pledgor will promptly pay the same in cash, without any demand or notice whatsoever, and that manner specified in the Credit Agreement, any Note or any other Loan Document, as the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewalmay be.
(b) The obligations Without limitation of the Pledgors under Section 2(a) shall constitute a guarantee of payment and, to the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Pledgors under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligationsother provisions of this Section 3, andeach of the Guarantors hereby absolutely and unconditionally guarantees, irrespective jointly and severally, as primary obligor and not as surety, upon demand by the Administrative Agent, the principal repayment of the Obligations provided for in Section 2.04(d)(ii) of the Credit Agreement, which payment shall be due and payable by the Guarantor, notwithstanding whether allowed or allowable during the pendency of any bankruptcy, insolvency, receivership or other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full)similar proceeding.
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder Without limitation of any of the Guaranteed Obligationsother provisions of this Section 3, whether each of the Guarantors does hereby further guarantee and agree to pay, upon demand, any and all actual loss, cost, damage or expenses incurred by the Administrative Agent, any Lender or LC Issuer or any Indemnitee as a direct or indirect result of (i) any proceedings breach of any material representation or warranty of either of the Borrowers or any of their respective Subsidiaries in insolvencythe Credit Agreement or any of the Loan Documents; or (ii) any breach or default of any of the Loan Parties of any representation, bankruptcy warranty, covenant, indemnity or reorganization other provision of the Credit Agreement or otherwiseother Loan Documents relating to Contaminants, the Release thereof, or Environmental, Health or Safety Requirements of Law, including without limitation Sections 4.21, 6.11, 6.12 and 13.04(a)(ii) of the Credit Agreement. The provisions of this Section 3(c) shall survive repayment of the Obligations subject to the limitations set forth in Section 13.04(d) of the Credit Agreement, which limitation shall also apply to this paragraph 3(c).
(d) Each Pledgor hereby agrees The obligations that until the Guarantors guarantee or otherwise agree to pay or perform under this Section 3 are herein referred to as the “Guaranteed Obligations.”
(e) This Guaranty is a guaranty of payment and satisfaction in full in cash not of all Guaranteed Obligations and collection. Each of the expiration and termination of this Agreement, it shall waive any claim and shall not exercise Guarantors waives any right or remedyto require the Lender to sxx the Borrowers, direct or indirectany other guarantor, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of Person obligated for all or any part of the Guaranteed Obligations or other Obligations, or otherwise to enforce its payment against any security for collateral securing all or any part of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, the obligations of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
Appears in 2 contracts
Samples: Parent Company Guaranty (LNR Property Corp), Parent Company Guaranty (Lennar Corp /New/)
The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor of the Guarantors hereby jointly and severally with guarantees to each Lender, the L/C Issuer, each Swap Bank, each Treasury Management Bank, the Administrative Agent, and each other Pledgor guaranteesholder of the Obligations as hereinafter provided, as a primary obligor and not merely as a surety to the Secured Party and its successors and permitted assignssurety, the prompt payment of all Obligations in full when due (whether at stated maturity, by required as a mandatory prepayment, declarationby acceleration, demand, by acceleration as a mandatory Cash Collateralization or otherwise) of the Borrower’s obligations under the Facility Letter and strictly in accordance with the terms thereof (such obligations being herein collectively called for each Guarantor, subject to the proviso in this sentence, its “Guaranteed Obligations”); provided, however, that with respect to any Foreign Subsidiary that has been a direct or indirect Subsidiary for less than one year, such Foreign Subsidiary’s guaranty shall be limited to the Canadian Obligations until the date such Foreign Subsidiary has been a Subsidiary for one year. Each Pledgor The Guarantors hereby jointly and severally agrees further agree that if any of the Borrower or other Pledgor shall fail to pay Guaranteed Obligations are not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration acceleration, as a mandatory Cash Collateralization or otherwise) any of ), the Guaranteed ObligationsGuarantors will, such Pledgor will jointly and severally, promptly pay the same in cashsame, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration acceleration, as a mandatory Cash Collateralization or otherwise) in accordance with the terms of such extension or renewal.
. Notwithstanding any provision to the contrary contained herein or in any other of the Loan Documents, Secured Swap Agreements or Secured Treasury Management Agreements, (bi) The the obligations of each Guarantor under this Agreement and the Pledgors under Section 2(a) other Loan Documents shall constitute a guarantee of payment and, be limited to an aggregate amount equal to the fullest extent permitted by largest amount that would not render such obligations subject to avoidance under the Debtor Relief Laws or any comparable provisions of any applicable law, are absolute, irrevocable state law or other applicable Law and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of (ii) the Guaranteed Obligations of the Pledgors under this Agreement or a Guarantor shall exclude any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower or the Pledgors in respect of the Guaranteed Excluded Swap Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, the obligations of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the amount of the Guaranteed Obligations, whether matured or unmaturedGuarantor.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
Appears in 2 contracts
Samples: Credit Agreement (Montrose Environmental Group, Inc.), Credit Agreement (Montrose Environmental Group, Inc.)
The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor the limitations expressly set forth herein, each of Culligan and Astrum hereby jointly and severally with unconditionally guarantee for the other Pledgor guarantees, as a primary obligor and not merely as a surety to benefit of the Secured Party and its successors and permitted assignsBuyer, the prompt payment and performance in full when due (whether at stated maturity, by required prepayment, declaration, demand, by acceleration or otherwise) the Sellers of all of the Borrower’s obligations under the Facility Letter and in accordance with the terms thereof (such obligations being herein collectively called the “Guaranteed Obligations”). Each Pledgor hereby jointly and severally agrees that if the Borrower or other Pledgor shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of the Guaranteed Obligations, such Pledgor will promptly pay the same in cash, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
(b) The obligations of the Pledgors under Section 2(a) shall constitute a guarantee of payment and, to the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Pledgors under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, the obligations of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the Sellers' obligations of any Pledgor kind or nature under Section 2(a) would otherwise be held or determined Article 9 of the Purchase Agreement, subject to be void, voidable, invalid or unenforceable, or subordinated all of the conditions and limitations applicable to the claims of any other creditorsSellers set forth therein; provided, on account of however, that (a) the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party Buyer shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees first notified the Sellers that any obligation that becomes such payment and performance from the Sellers is due and payable owing pursuant to the terms of the Purchase Agreement; and (b) Astrum shall have no obligations or liability under this Agreement Section 1 unless and until either (x) Culligan's Shareholders' Equity (as defined below) shall be shared as less than $70,000,000 for the twelve-month period ending on the month ending immediately prior to the date of determination, or (y) if Culligan asserts or claims at any time that Culligan's obligations under this Section 1 is unenforceable against it (or any similar assertion or claim) or that Culligan does not have the financial capability to perform its obligations under this Section 1 in a timely manner (or any similar assertion or claim); provided, further, upon the occurrence of any event referred to in clauses (x) and (y) above, Astrum shall thereafter be unconditionally obligated to guarantee the obligations of the Sellers to the extent set forth in this Section 1 (without the benefit of subparagraph (b) of this Section 1). "Shareholders' Equity" means for the applicable period, the difference between (i) the Pledgors product of (x) the net income of Culligan plus any and all interest, taxes, depreciation and amortization which were deducted in determining the amount of such net income and (y) 6.5 and (ii) the aggregate amount of indebtedness for money borrowed (including any and all capitalized lease obligations), all as determined in good faith by accordance with generally accepted accounting principles consistently applied; provided that if the general partners stock of Culligan is publicly traded, the Pledgors, such that each Pledgor Shareholders Equity shall bear its share mean the product of any such obligation in proportion to multiplying the distribution number of loan proceeds it receives from the Borrower outstanding common shares of Culligan on the date of determination by the Initial Drawdown as reported in writing to average closing trading price on the Secured Party. In thirty trading days preceding the event that a liability arises and payments are made by any date of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreementdetermination.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
Appears in 2 contracts
Samples: Guaranty Agreement (Anvil Holdings Inc), Guaranty Agreement (Cottontops Inc)
The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor hereby jointly and severally with the other Pledgor The Guarantor unconditionally guarantees, as a primary obligor and not merely as a surety surety: (x) the due and punctual payment of:
(i) all principal of, premium (if any) and interest on any Loan borrowed by AHL under, or any Note issued by AHL pursuant to, the Credit Agreement or any other Loan Document (including, without limitation, any interest which accrues after the commencement of (A) any voluntary or involuntary case or proceeding under any Debtor Relief Laws with respect to AHL, (B) any other voluntary or involuntary insolvency, reorganization or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or similar case or proceeding with respect to AHL or any material portion of its respective assets, (C) any liquidation, dissolution, reorganization or winding up of AHL whether voluntary or involuntary and whether or not involving insolvency or bankruptcy or (D) any assignment for the benefit of creditors or any other marshalling of assets and liabilities of AHL (each an “Insolvency or Liquidation Proceeding”), whether or not allowed or allowable as a claim in any such proceeding);
(ii) all fees, expenses, indemnification obligations and other amounts of whatever nature now or hereafter payable by AHL pursuant to the Secured Party and its successors and permitted assignsCredit Agreement or any other Loan Document (including, without limitation, (A) all expenses of the prompt payment in full when due (whether at stated maturityAdministrative Agent, Agent-Related Persons or the Lenders as to which one or more of them have a right to reimbursement by required prepayment, declaration, demand, by acceleration or otherwiseany Borrower under Section 10.04(a) of the Borrower’s Credit Agreement or under any other similar provision of any other Loan Document, (B) all amounts paid by any Indemnitee as to which such Indemnitee has the right to reimbursement by any Borrower under Section 10.04(b) of the Credit Agreement or under any other similar provision of any other Loan Document and (C) any amounts which accrue after the commencement of any Insolvency or Liquidation Proceeding with respect to AHL, whether or not allowed or allowable as a claim in any such proceeding); and
(iii) all other amounts now or hereafter payable by AHL pursuant to any Loan Document and all other obligations or liabilities now existing or hereafter arising or incurred on the part of AHL pursuant to any Loan Document (including, without limitation, any amounts which accrue after the commencement of any Insolvency or Liquidation Proceeding with respect to AHL, whether or not allowed or allowable as a claim in any such proceeding); in each case, together with all renewals, modifications, consolidations or extensions thereof and whether now or hereafter due, owing or incurred in any manner, whether actual or contingent, whether incurred solely or jointly with any other Person and whether as principal or surety (and including all liabilities in connection with any notes, bills or other instruments accepted by any Finance Party in connection therewith), together in each case with all renewals, modifications, consolidations or extensions thereof; and (y) the due and punctual performance of all covenants, agreements, obligations and liabilities of AHL under or pursuant to the Facility Letter Loan Documents (all such monetary and other obligations referred to in accordance with the terms thereof clauses (such obligations x) and (y) above being herein collectively called referred to as the “Guaranteed Obligations”). Each Pledgor hereby jointly and severally agrees that if the Borrower or other Pledgor shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of the Guaranteed Obligations, such Pledgor will promptly pay the same in cash, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
(b) The obligations books and records of the Pledgors under Section 2(a) shall constitute a guarantee of payment and, to Administrative Agent showing the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability amount of the Guaranteed Obligations of the Pledgors under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and to the extent that for admissible in evidence in any reason any payment by action or on behalf of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligationsproceeding, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason be binding upon the Guarantor and conclusive for the purpose of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against establishing the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any amount of the Guaranteed Obligations.
(ec) The Pledgors jointly and severally agree that, as between Anything contained in this Agreement to the Pledgors and the Secured Partycontrary notwithstanding, the obligations of the Borrower Guarantor hereunder shall be limited to a maximum aggregate amount equal to the greatest amount that would not render the Guarantor’s obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” Section 548 of Title 11 of the Facility Letter for purposes United States Code or any provisions of Section 2(aapplicable state law (collectively, the “Fraudulent Transfer Laws”), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (each case after giving effect to all other liabilities of the right Guarantor, contingent or otherwise, that are relevant under the Fraudulent Transfer Laws (specifically excluding, however, any liabilities of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
Guarantor (i) Each Pledgor assumes all responsibility for being in respect of intercompany indebtedness to AHL or any of its Affiliates to the extent that such indebtedness would be discharged or would be subject to a right of set-off in an amount equal to the amount paid by the Guarantor hereunder and keeping itself informed (ii) under any guaranty of the Borrower’s financial condition and assets, and Debt subordinated in right of all other circumstances bearing upon the risk of nonpayment of payment to the Guaranteed Obligations and the nature, scope and extent of the risks which guaranty contains a limitation as to a maximum amount similar to that each Pledgor assumes and incurs under set forth in this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable paragraph pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner which the liability of the Pledgors Guarantor hereunder is included in the liabilities taken into account in determining such maximum amount) and after giving effect as assets of the Guarantor to the value (as determined under this Agreement.
(lthe applicable provisions of the Fraudulent Transfer Laws) Neither Pledgor shall exercise of any right of rights to subrogation, contribution, indemnityreimbursement, reimbursement indemnity or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations Guarantor pursuant to (i) applicable Law or (ii) any agreement providing for an equitable allocation among the Guarantor and any amounts payable AHL and its Affiliates of obligations arising under guaranties by such parties (including the agreements in Article III of this Agreement have been indefeasibly paid and performed in fullAgreement). If any amounts are paid the Guarantor’s liability hereunder is limited pursuant to a Pledgor in violation of this paragraph to an amount that is less than the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the total amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim then it is understood and free and clear of and without deduction for any taxes. The obligations of agreed that the Pledgors under this clause (m) shall survive the payment in full portion of the Guaranteed Obligations and termination for which the Guarantor is liable hereunder shall be the last portion of this Guarantythe Guaranteed Obligations to be repaid.
Appears in 2 contracts
Samples: Guaranty (Athene Holding LTD), Guaranty Agreement (Athene Holding LTD)
The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor of the Guarantors hereby unconditionally guarantees, jointly and severally with the other Pledgor guarantees, as a primary obligor Guarantors and not merely as a surety to the Secured Party and its successors and permitted assignsseverally, the prompt full and punctual payment in full and performance when due (whether at stated maturity, or by required prepayment, declaration, demand, or optional prepayment or by acceleration or otherwise) of (i) the Borrower’s obligations principal of, Make-Whole Amount, if any, with respect to, interest (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) on, and any other amounts due under the Facility Letter Notes, (ii) all other amounts payable by the Company under the Private Shelf Agreement and the other Transaction Documents, and (iii) the punctual and faithful performance, keeping, observance, and fulfillment by the Company of all of the agreements, conditions, covenants, and obligations of the Company contained in accordance with the terms thereof Transaction Documents (such obligations all of the foregoing being herein referred to collectively called as the “Guaranteed Obligations,” and the holders of the Notes and Prudential being referred to collectively as the “Holders of Guaranteed Obligations”). Each Pledgor hereby jointly Upon the occurrence and severally during the continuance of any Event of Default under the Private Shelf Agreement, each of the Guarantors agrees that if it shall forthwith on demand by the Borrower holders entitled thereto pay such amount or other Pledgor shall fail to pay perform such obligation at the place and in full when due (whether at stated maturitythe manner specified in the Private Shelf Agreement, by acceleration the Notes, or otherwise) any the relevant Transaction Document, as the case may be. Each of the Guaranteed Obligations, such Pledgor will promptly pay the same in cash, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
(b) The obligations of the Pledgors under Section 2(a) shall constitute a guarantee of payment and, to the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Pledgors under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor Guarantors hereby agrees that until the this Guaranty is an irrevocable guaranty of payment and satisfaction in full in cash is not a guaranty of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligationscollection.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, the obligations of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
Appears in 2 contracts
Samples: Private Shelf Agreement (Hillenbrand, Inc.), Private Shelf Agreement (Hillenbrand, Inc.)
The Guaranty. Subject Each Guarantor hereby guarantees to Section 2(j) below:
(a) Each Pledgor hereby jointly each Secured Party and severally with the other Pledgor guaranteesAdministrative Agent as hereinafter provided, as a primary obligor and not merely as a surety to the Secured Party and its successors and permitted assignssurety, the prompt payment and performance of the Obligations in full when due (whether at stated maturity, by required as a mandatory prepayment, declaration, demand, by acceleration or otherwise) of the Borrower’s obligations under the Facility Letter and strictly in accordance with the terms thereof (such obligations being herein collectively called the “Guaranteed Obligations”)thereof. Each Pledgor Guarantor hereby jointly and severally further agrees that if any of the Borrower or other Pledgor shall fail to pay Obligations are not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration or otherwise) any of the Guaranteed Obligations), such Pledgor each Guarantor will promptly pay the same in cashsame, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
renewal (b) The obligations collectively, the “Guaranteed Obligations”). Subject to Section 10.06 and the last sentence of this Section 10.01 below, the Guarantors hereby jointly and severally agree, in furtherance of the Pledgors under Section 2(a) shall constitute a guarantee of payment and, to the fullest extent permitted by applicable law, are absolute, irrevocable foregoing and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Pledgors under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange not in limitation of any other guarantee of right which the Administrative Agent or security for any of Secured Party may have at law or in equity against any Guarantor by virtue hereof, that upon the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf failure of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of to pay any of the Guaranteed Obligations when and as the same shall become due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or any security otherwise (including amounts that would become due but for any the operation of the Guaranteed Obligations.
(eautomatic stay under Section 362(a) The Pledgors jointly and severally agree that, as between of the Pledgors and the Secured PartyBankruptcy Code), the obligations Guarantors will upon demand pay, or cause to be paid, in cash, to the Administrative Agent for the ratable benefit of Secured Parties, an amount equal to the sum of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” unpaid principal amount of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arisingthen due as aforesaid, accrued and shall remain in full force and effect until all unpaid interest on such Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company lawincluding interest which, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility but for being and keeping itself informed of the Borrower’s financial condition and assetsbecoming the subject of a case under the Bankruptcy Code, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall would have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, accrued on such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the amount of the Guaranteed Obligations, whether matured or unmatured.
(mnot a claim is allowed against the Borrower for such interest in the related bankruptcy case) The Pledgors shall make and all payments hereunder without setoff other Guaranteed Obligations then owed to the Secured Parties as aforesaid. Notwithstanding any provision to the contrary contained herein or counterclaim and free and clear of and without deduction for in any taxes. The obligations other of the Pledgors under this clause (m) shall survive the payment in full of Loan Documents, the Guaranteed Obligations of each Guarantor under this Agreement and termination of this Guarantythe other Loan Documents shall be limited to an aggregate amount equal to the largest amount that would not render such obligations subject to avoidance under the Debtor Relief Laws.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Providence Service Corp), Credit and Guaranty Agreement (Providence Service Corp)
The Guaranty. Subject Each Guarantor hereby guarantees to Section 2(j) below:
(a) Each Pledgor hereby jointly each Secured Party and severally with the other Pledgor guaranteesAdministrative Agent as hereinafter provided, as a primary obligor and not merely as a surety to the Secured Party and its successors and permitted assignssurety, the prompt payment and performance of the Obligations in full when due (whether at stated maturity, by required as a mandatory prepayment, declaration, demand, by acceleration or otherwise) of the Borrower’s obligations under the Facility Letter and strictly in accordance with the terms thereof (such obligations being herein collectively called the “Guaranteed Obligations”)thereof. Each Pledgor Guarantor hereby jointly and severally further agrees that if any of the Borrower or other Pledgor shall fail to pay Obligations are not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration or otherwise) any of the Guaranteed Obligations), such Pledgor each Guarantor will promptly pay the same in cashsame, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
renewal (b) The obligations collectively, the “Guaranteed Obligations”). Subject to Section 10.06 and the last sentence of this Section 10.01 below, the Guarantors hereby jointly and severally agree, in furtherance of the Pledgors foregoing and not in limitation of any other right which the Administrative Agent or any Secured Party may have at law or in equity against any Guarantor by virtue hereof, that upon the failure of any Guaranteed Obligations to be paid when and as the same shall become due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise (including amounts that would become due but for the operation of the automatic stay under Section 2(a362(a) shall constitute a guarantee of payment andthe Bankruptcy Code), the Guarantors will, upon demand pay, or cause to be paid, in cash, to the fullest extent permitted by applicable lawAdministrative Agent for the ratable benefit of Secured Parties, are absolute, irrevocable and unconditional, joint and several, irrespective an amount equal to the sum of the valueunpaid principal amount of all Guaranteed Obligations then due as aforesaid, genuinenessaccrued and unpaid interest on such Guaranteed Obligations (including interest which, validitybut for any Xxxxxxxx’s becoming the subject of a case under the Bankruptcy Code, regularity would have accrued on such Guaranteed Obligations, whether or enforceability not a claim is allowed against any Borrower for such interest in the related bankruptcy case) and all other Guaranteed Obligations then owed to the Secured Parties as aforesaid. Notwithstanding any provision to the contrary contained herein or in any other of the Loan Documents, the Guaranteed Obligations of the Pledgors each Guarantor under this Agreement or any and the other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 Loan Documents shall be automatically reinstated if and limited to an aggregate amount equal to the extent largest amount that for any reason any payment by or on behalf of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall would not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, the render such obligations of the Borrower subject to avoidance under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a)Debtor Relief Laws.
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
Appears in 1 contract
The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor The Subsidiary Guarantors hereby unconditionally jointly and severally with the other Pledgor guarantees, as a primary obligor and not merely as a surety guarantee to the Secured Party Administrative Agent and its the Lenders, and their successors and permitted assigns, the prompt full and punctual payment in full when due or performance (whether at stated maturity, by required prepayment, declaration, demand, by acceleration or otherwise) of the Borrower’s obligations Obligations, including (i) principal of and interest on the Loans, (ii) all fees and other amounts and Obligations from time to time owing to the Administrative Agent and the Lenders by the Borrower and each other Obligor under the Facility Letter and this Agreement or under any other Loan Document, in each case strictly in accordance with the terms hereof and thereof and (iii) the punctual and faithful performance, keeping, observance and fulfillment by the Borrower and Subsidiary Guarantors of all the agreements, conditions, covenants and obligations of the Borrower and Subsidiary Guarantors contained in the Loan Documents (such obligations being herein collectively called the “Guaranteed Obligations”). Each Pledgor The Subsidiary Guarantors hereby further jointly and severally agrees agree that if the Borrower or any other Pledgor Obligor shall fail to pay any amount in full when due or perform any such obligation (whether at stated maturity, by acceleration or otherwise) any of ), the Guaranteed Obligations, such Pledgor will Subsidiary Guarantors shall promptly pay the same or perform such obligation at the place and in cashthe manner specified herein or in the relevant Loan Document, as the case may be, without any demand or notice whatsoever, and that in the case of any extension of time of payment or performance or renewal of any of the Guaranteed Obligations, the same will shall be promptly paid in full or performed when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
(b) The obligations of the Pledgors under Section 2(a) shall constitute a guarantee of payment and, to the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Pledgors under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, the obligations of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
Appears in 1 contract
The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor Subject to the limitation of Section 1(b), the Guarantor hereby jointly unconditionally and severally with the other Pledgor guarantees, irrevocably guarantees as a primary obligor and not merely as a surety to the Secured Party full and its successors and permitted assigns, the prompt payment in full when due and payable (whether at stated upon maturity, by required prepayment, declaration, demand, by acceleration or otherwise) of the obligations of each of the Borrowers (including without limitation all interest which may be payable thereon prior to or during the pendency of any insolvency or similar proceeding with respect to such Borrower’s obligations ) with respect to payment of the indebtedness under the Reducing Note Facility Letter and in accordance with Agreement as evidenced by the notes executed pursuant to the terms thereof of the Reducing Note Facility Agreement and letters of credit under the Reducing Note Facility Agreement (such obligations being herein collectively called the “Guaranteed Guarantied Obligations”). Each Pledgor hereby jointly If any or all of such Guarantied Obligations become due and severally agrees that if payable, the Borrower or other Pledgor shall fail Guarantor unconditionally promises to pay such indebtedness to the Agent on behalf of the Lenders, or order, on demand, together with any and all expenses which may be incurred by the Lenders or the Agent in full when due (whether at stated maturity, by acceleration or otherwise) collecting any of the Guaranteed indebtedness which is part of the Guarantied Obligations, such Pledgor will promptly pay subject to the same in cash, without any demand terms of Section 1(b). If the Agent or notice whatsoever, and that in the case of any extension of time of payment or renewal of Lenders are prevented by law from accelerating any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) indebtedness in accordance with the terms of any agreement or instrument governing same, the Agent shall be entitled to receive hereunder from the Guarantor, upon demand therefor, the sum which would have otherwise been due had such extension acceleration occurred. The word “indebtedness” is used in this Agreement in its most comprehensive sense and includes any and all advances, debts, obligations and liabilities of each of the Borrowers which are part of the Guarantied Obligations, in each case heretofore, now or renewalhereafter made, incurred or created, whether voluntarily or involuntarily, absolute or contingent, liquidated or unliquidated, determined or undetermined, whether or not such indebtedness is from time to time reduced, or extinguished and thereafter increased or incurred, whether such Borrower may be liable individually or jointly with others, whether or not recovery upon such indebtedness may be or hereafter become barred by any statute of limitations, and whether or not such indebtedness may be or hereafter become otherwise unenforceable. Without limiting the generality of the foregoing, the Guarantor acknowledges that this guaranty is a guaranty of payment, not a guaranty of collection.
(b) The obligations Anything herein or in any other Loan Document to the contrary notwithstanding, the maximum liability of the Pledgors Guarantor hereunder and under Section 2(athe other Loan Documents (said maximum liability, its “Maximum Guaranteed Amount”) shall constitute a guarantee in no event exceed the lesser of payment and, (i) such amount which can be guaranteed by the Guarantor under applicable federal and state laws relating to the fullest extent permitted insolvency of debtors and (ii) 75,000,000 plus an amount equal to any losses incurred by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective Lenders arising from the failure of the value, genuineness, validity, regularity Guarantor to pay federal income taxes as required in Section 10(q) which result in a levy or enforceability other enforcement proceeding by the United States Internal Revenue Service that reduces the cash flow from or results in a loss of Collateral or security interests or pledges securing the Guarantied Obligations (and any expenses of the Guaranteed Obligations Collateral Agent and Lenders related to defense of the Pledgors under this Agreement or Collateral from any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in fullsuch enforcement proceedings).
(c) The obligations Guarantor agrees that the indebtedness may at any time and from time to time exceed the Maximum Guaranteed Amount without impairing this Agreement or affecting the rights and remedies of the Pledgors Agent and the Lenders hereunder; provided that under this Section 2 no circumstance shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf liability of the Borrower or Guarantor exceed the Pledgors in respect of the Maximum Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwiseAmount.
(d) Each Pledgor hereby agrees that until the No payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreementor payments made by any Borrower, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower other guarantor or any other Pledgor Person or received or collected by the Agent or any Lender from any Borrower, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time in reduction of or in payment of the Guaranteed Obligations indebtedness shall be deemed to modify, reduce, release or any security for any otherwise affect the liability of the Guarantor hereunder which shall, notwithstanding any such payment or payments other than payments made to the Agent by the Guarantor or payments received or collected by the Agent from the Guarantor, remain liable for the indebtedness up to its Maximum Guaranteed Amount until the indebtedness is indefeasibly paid in full; provided that all such payments are applied to the Guarantied Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, the obligations of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding Notwithstanding any other provision of this Agreement, the Guarantor and the Agent agree that payments made to the contraryGuarantor, the amount of such liability shall, without any further action by such Pledgor, the Borrower FirstCity Diversified Holdings LLC or any other person, be automatically limited and reduced FirstCity Servicing Corporation pursuant to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed 5.3 of the Borrower’s financial condition and assets, and Reducing Note Facility Agreement are not in violation of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party no such payment shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner increase the liability of Guarantor to pay the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Guarantied Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid subject to the Secured Party Maximum Guaranteed Amount, nor shall any such payment be required to reduce be returned, paid or delivered to the amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction Agent for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guarantyreason.
Appears in 1 contract
Samples: Limited Guaranty Agreement (Firstcity Financial Corp)
The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor hereby Guarantor unconditionally guarantees, jointly and severally with the other Pledgor guaranteesGuarantors, and severally, as a primary obligor and not merely as a surety to surety: (x) the Secured Party due and its successors and permitted assigns, the prompt punctual payment in full when due (whether at stated maturity, by required prepayment, declaration, demand, by acceleration or otherwise) of all Senior Credit Obligations of the Borrower’s , whether now or hereafter due, owing or incurred in any manner, whether actual or contingent, whether incurred solely or jointly with any other Person and whether as principal or surety (and including all liabilities in connection with any notes, bills or other instruments accepted by any Credit Party in connection therewith), together in each case with all renewals, modifications, consolidations or extensions thereof and (y) the due and punctual performance of all covenants, agreements, obligations and liabilities of the Borrower and the Other Loan Parties under or pursuant to the Facility Letter Loan Documents and in accordance with the terms thereof other Finance Documents (all such monetary and other obligations being herein collectively called referred to as the “Guaranteed Obligations”). Each Pledgor hereby jointly and severally agrees Anything contained in this Agreement to the contrary notwithstanding, the obligations of each Guarantor hereunder shall be limited to a maximum aggregate amount equal to the greatest amount that if would not render such Guarantor’s obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11 of the United States Code or any provisions of applicable state law (collectively, the “Fraudulent Transfer Laws”), in each case after giving effect to all other liabilities of such Guarantor, contingent or otherwise, that are relevant under the Fraudulent Transfer Laws (specifically excluding, however, any liabilities of such Guarantor (i) in respect of intercompany indebtedness to the Borrower or other Pledgor shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of the Guaranteed Obligations, such Pledgor will promptly pay the same in cash, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
(b) The obligations of the Pledgors under Section 2(a) shall constitute a guarantee of payment and, to the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Pledgors under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and its Affiliates to the extent that for any reason any payment such indebtedness (A) would be discharged or would be subject to a right of set-off in an amount equal to the amount paid by such Guarantor hereunder or (B) has been pledged to, and is enforceable by, the Collateral Agent on behalf of the Borrower or the Pledgors Finance Parties and (ii) under any guaranty of Indebtedness subordinated in respect right of payment to the Guaranteed Obligations which guaranty contains a limitation as to a maximum amount similar to that set forth in this paragraph pursuant to which the liability of such Guarantor hereunder is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, the obligations of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, included in the event of liabilities taken into account in determining such declaration (or such obligations being deemed to have become automatically due maximum amount) and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect as assets of such Guarantor to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors value (as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed under the applicable provisions of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(jFraudulent Transfer Laws) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion rights to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnityreimbursement, reimbursement indemnity or similar rights with respect of such Guarantor pursuant to (i) applicable Law or (ii) any payments it makes under this Agreement until all agreement providing for an equitable allocation among such Guarantor and other Affiliates of the Guaranteed Obligations and any amounts payable Borrower of obligations arising under this Agreement have been indefeasibly paid and performed guaranties by such parties (including the agreements in fullArticle II). If any amounts are paid Guarantor’s liability hereunder is limited pursuant to a Pledgor in violation of this paragraph to an amount that is less than the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the total amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim then it is understood and free and clear of and without deduction for any taxes. The obligations of agreed that the Pledgors under this clause (m) shall survive the payment in full portion of the Guaranteed Obligations and termination for which such Guarantor is liable hereunder shall be the last portion of this Guarantythe Guaranteed Obligations to be repaid.
Appears in 1 contract
The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor 9.08 hereof, each Borrower and each Subsidiary thereof party hereto hereby jointly absolutely, unconditionally and severally with the other Pledgor irrevocably guarantees, as a primary obligor and not merely as a surety to the Secured Party surety, jointly and its successors and permitted assignsseverally, the prompt full and punctual payment in full when due (whether at stated maturity, by required prepaymentupon acceleration, declarationearly termination, demand, by acceleration declaration or otherwise, and at all times thereafter), and performance of, the Obligations, including but not limited to, any and all obligations owed to any Lender Swap Counterparty under each Lender Swap Agreement or any Bank Product Provider with respect to any Bank Product Obligations now or hereafter existing or and all renewals, rearrangements, increases, extensions for any period, substitutions, modifications, amendments or supplements in whole or in part of any of the Obligations, including, without limitation, any such Obligations incurred or accrued during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, whether or not allowed or allowable in such proceeding (including all such amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Borrower’s obligations under United States Bankruptcy Code, 11 U.S.C. §362(a), and the Facility Letter operation of Sections 502(b) and in accordance with 506(b) of the terms thereof United States Bankruptcy Code, 11 U.S.C. §502(b) and §506(b)) (such obligations being herein collectively called collectively, the “Guaranteed Obligations”). Each Pledgor hereby jointly and severally Upon failure by any Credit Party to pay when due any such amount, each of the Guarantors agrees that it shall forthwith on demand pay to the Administrative Agent for the benefit of the Lenders and, if applicable, their Affiliates, the Borrower amount not so paid at the place and in the manner specified in this Agreement, any other Loan Document, any Lender Swap Agreement, as the case may be. This Guaranty is a guaranty of payment and not of collection. Each of the Guarantors waives any right to require the Secured Parties to sue any Borrower, any other guarantor, or any other Pledgor shall fail to pay in full when due (whether at stated maturity, by acceleration Person obligated for all or otherwise) any part of the Guaranteed Obligations, such Pledgor will promptly pay the same in cash, without or otherwise to enforce its payment against any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
(b) The obligations of the Pledgors under Section 2(a) shall constitute a guarantee of payment and, to the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Pledgors under this Agreement collateral securing all or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any part of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, the obligations of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
Appears in 1 contract
Samples: Credit Agreement (Unit Corp)
The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor In order to induce the Banks to enter into this Agreement and to extend credit hereunder and in recognition of the direct benefits to be received by Borrower and Guarantors from the proceeds of the Loans and the issuance of Letters of Credit, Borrower and Guarantors hereby agree with the Banks as follows: subject to paragraph (b) below, each Guarantor hereby jointly and severally with the other Pledgor guaranteesseverally, unconditionally and irrevocably guarantees as a primary obligor and not merely as a surety to the Secured Party full and its successors and permitted assigns, the prompt payment in full when due (due, whether at stated maturity, by required prepayment, declaration, demand, by acceleration or otherwise) of the Borrower’s obligations under the Facility Letter and in accordance with the terms thereof (such obligations being herein collectively called the “Guaranteed Obligations”). Each Pledgor hereby jointly and severally agrees that if the Borrower or other Pledgor shall fail to pay in full when due (whether at stated upon maturity, by acceleration or otherwise) any of the Guaranteed Obligations, such Pledgor will promptly pay the same in cash, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
(b) The obligations of the Pledgors under Section 2(a) shall constitute a guarantee of payment and, to the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability all of the Guaranteed Obligations of the Pledgors under this Agreement Borrower, and if any or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower or the Pledgors in respect all of the Guaranteed Obligations is rescinded of Borrower become due and payable hereunder, each Guarantor unconditionally promises to pay such indebtedness to the Banks, on order or must demand, together with any and all reasonable expenses which may be otherwise restored incurred by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings Administrative Agent or the Banks in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for collecting any of the Guaranteed Obligations.
(eb) The Pledgors jointly To the extent and severally agree that, as between for any period that the Pledgors and the Secured PartyDual Indenture remains in effect, the obligations liability of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” Dual Holding Company hereunder shall never exceed a maximum of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, $35,000,000 in the event aggregate, provided, that such liability of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and Dual Holding Company shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account final repayment of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed last $35,000,000 of the Borrower’s financial condition Obligations outstanding and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall not be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made reduced by any of the Pledgors payments (other than payments by Dual Holding Company in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account satisfaction of the Guaranteed Obligations, but without reducing or affecting in any manner ) until the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid reduced to a Pledgor in violation of figure below that amount. Further, notwithstanding the foregoing limitation, then to the extent said Dual Indenture prohibits, limits or restricts Dual Holding Company from entering into this Guaranty, in whole or in part, the Agent, the Banks and the Letter of Credit Issuer do agree that such amounts prohibition, limitations or restrictions shall, except as hereinbelow specifically stated, take precedence hereover and the obligations of Dual Holding Company shall be held subject thereto, provided, immediately upon the lifting of such prohibition, limitations or restrictions, Dual Holding Company's liability hereunder shall be immediately reinstated and all limitations therein shall be eliminated without the need for action or notice by, or to, any party, provided, notwithstanding, the maximum aggregate liability of Dual Holding Company shall remain $35,000,000 and shall not be increased above said amount. Nothing contained in trust this Section 13.01(b) shall affect the liability of any other Guarantor or the rights of any Bank in regard to said parties, and shall be effective in respect of Dual Holding Company only to the limited extent and for the benefit of period expressly set forth in the Secured Party and shall forthwith be paid to the Secured Party to reduce the amount of the Guaranteed Obligations, whether matured or unmaturedDual Indenture.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
Appears in 1 contract
The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor of the Guarantors hereby unconditionally guarantees, jointly and severally with the other Pledgor guarantees, as a primary obligor Guarantors and not merely as a surety to the Secured Party and its successors and permitted assignsseverally, the prompt full and punctual payment in full and performance when due (whether at stated maturity, by required prepayment, declaration, demand, by upon acceleration or otherwise) of the Borrower’s Obligations, including, without limitation, (i) the principal of and interest on each Loan made to the Borrower pursuant to the Credit Agreement, (ii) any obligations of the Borrower to reimburse LC Disbursements (“Reimbursement Obligations”), (iii) all other amounts payable by the Borrower or any of its Subsidiaries under the Facility Letter Credit Agreement and the other Loan Documents and (iv) the punctual and faithful performance, keeping, observance, and fulfillment by the Borrower of all of the agreements, conditions, covenants, and obligations of the Borrower contained in accordance with the terms thereof Loan Documents (such obligations all of the foregoing being herein referred to collectively called as the “Guaranteed Obligations” and the holders from time to time of the Guaranteed Obligations being referred to collectively as the “Holders of Guaranteed Obligations”). Each Pledgor hereby jointly and severally agrees that if Upon (x) the failure by the Borrower or other Pledgor shall fail any of its Affiliates, as applicable, to pay in full when due punctually any such amount or perform such obligation, and (whether at stated maturityy) such failure continuing beyond any applicable grace or notice and cure period, by acceleration or otherwise) any each of the Guaranteed Obligations, Guarantors agrees that it shall forthwith on demand pay such Pledgor will promptly pay amount or perform such obligation at the same in cash, without any demand or notice whatsoever, place and that in the manner specified in the Credit Agreement or the relevant Loan Document, as the case of any extension of time of payment or renewal of any may be. Each of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
(b) The obligations of the Pledgors under Section 2(a) shall constitute a guarantee of payment and, to the fullest extent permitted by applicable law, are Guarantors hereby agrees that this Guaranty is an absolute, irrevocable and unconditional, joint and several, irrespective unconditional guaranty of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Pledgors under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash is not a guaranty of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, the obligations of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Partycollection. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.CH\2058888.7
Appears in 1 contract
Samples: Credit Agreement (Chicos Fas Inc)
The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor of the Domestic Guarantors hereby jointly and severally guarantees to each Lender, each L/C Issuer, each Lender and each Affiliate of a Lender that enters into a Secured Swap Contract or a Secured Treasury Management Agreement with a Loan Party, each other holder of the other Pledgor guaranteesObligations and the Administrative Agent as hereinafter provided, as a primary obligor Primary Obligor and not merely as a surety to the Secured Party and its successors and permitted assignssurety, the prompt payment of the Obligations in full when due (whether at stated maturity, by required as a mandatory prepayment, declarationby acceleration, demand, by acceleration as a mandatory cash collateralization or otherwise) of the Borrower’s obligations under the Facility Letter and strictly in accordance with the terms thereof (such obligations being herein collectively called the “Guaranteed Obligations”)thereof. Each Pledgor The Domestic Guarantors hereby jointly and severally agrees further agree that if any of the Borrower or other Pledgor shall fail to pay Obligations are not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration acceleration, as a mandatory cash collateralization or otherwise) any of ), the Guaranteed ObligationsDomestic Guarantors will, such Pledgor will jointly and severally, promptly pay the same in cashsame, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration acceleration, as a mandatory cash collateralization or otherwise) in accordance with the terms of such extension or renewal.
(b) The obligations Each of the Pledgors under Section 2(a) shall constitute Foreign Guarantors hereby jointly and severally guarantees to each Lender, each Lender and each Affiliate of a guarantee of payment andLender that enters into a Secured Swap Contract or a Secured Treasury Management Agreement with a Foreign Loan Party, to the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective each other holder of the valueForeign Obligations and the Administrative Agent as hereinafter provided, genuinenessas Primary Obligor and not as surety, validity, regularity or enforceability the prompt payment of the Guaranteed Foreign Obligations of in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) strictly in accordance with the Pledgors under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for terms thereof. The Foreign Guarantors hereby further agree that if any of the Guaranteed Foreign Obligations are not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise), the Foreign Guarantors will, jointly and severally, promptly pay the same, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Foreign Obligations, andthe same will be promptly paid in full when due (whether at extended maturity, irrespective as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) in accordance with the terms of any other circumstance whatsoever that might otherwise constitute a legal such extension or equitable discharge or defense of a surety or Pledgor (except for payment in full)renewal.
(c) The obligations Notwithstanding any provision to the contrary contained herein or in any other of the Pledgors under this Section 2 shall be automatically reinstated if and Loan Documents or other documents relating to the extent that for any reason any payment by or on behalf of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, the obligations of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes Guarantor under this Agreement until all of and the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts other Loan Documents shall be held in trust for the benefit of the Secured Party and shall forthwith be paid limited to an aggregate amount equal to the Secured Party largest amount that would not render such obligations subject to reduce avoidance under the amount Debtor Relief Laws or any comparable provisions of the Guaranteed Obligations, whether matured or unmaturedany applicable state Law.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
Appears in 1 contract
The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor of the Guarantors hereby unconditionally guarantees, jointly and severally with the other Pledgor guarantees, as a primary obligor Guarantors and not merely as a surety to the Secured Party and its successors and permitted assignsseverally, the prompt full and punctual payment in full and performance when due (whether at stated maturity, by required prepayment, declaration, demand, by upon acceleration or otherwise) of the Borrower’s Obligations, including, without limitation, (i) the principal of and interest on each Loan made to the Borrower pursuant to the Credit Agreement, (ii) any obligations of the Borrower to reimburse LC Disbursements (“Reimbursement Obligations”), (iii) all obligations of the Borrower owing to any Lender or any affiliate of any Lender under any Swap Agreement or Banking Services Agreement, (iv) all other amounts payable by the Borrower or any of its Subsidiaries under the Facility Letter Credit Agreement, any Swap Agreement, any Banking Services Agreement and the other Loan Documents and (v) the punctual and faithful performance, keeping, observance, and fulfillment by the Borrower of all of the agreements, conditions, covenants, and obligations of the Borrower contained in accordance with the terms thereof Loan Documents (such obligations all of the foregoing being herein referred to collectively called as the “Guaranteed Obligations” (provided, however, that the definition of “Guaranteed Obligations” shall not create any guarantee by any Guarantor of any Excluded Swap Obligations of such Guarantor for purposes of determining any obligations of any Guarantor) and the holders from time to time of the Guaranteed Obligations being referred to collectively as the “Holders of Guaranteed Obligations”). Each Pledgor hereby jointly and severally agrees that if Upon (x) the Borrower or other Pledgor shall fail to pay in full when due (whether at stated maturity, failure by acceleration or otherwise) any of the Guaranteed Obligations, such Pledgor will promptly pay the same in cash, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
(b) The obligations of the Pledgors under Section 2(a) shall constitute a guarantee of payment and, to the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Pledgors under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree thatits Affiliates, as between the Pledgors and the Secured Partyapplicable, the obligations of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding pay punctually any stay, injunction such amount or other prohibition preventing perform such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of moneyobligation, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by (y) such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a failure continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or beyond any applicable stategrace or notice and cure period, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors Guarantors agrees that it shall have shared forthwith on demand pay such liability amount or perform such obligation at the place and in accordance with the foregoing sentence. For manner specified in the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Credit Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.Swap 2
Appears in 1 contract
The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor hereby Guarantor unconditionally guarantees, jointly and severally with the other Pledgor guaranteesGuarantors, and severally, as a primary obligor and not merely as a surety: (i) the due and punctual payment of:
(A) all Senior Obligations; and
(B) all Derivatives Obligations permitted under the Credit Agreement owed or owing to any Derivatives Creditor; in each case whether now or hereafter due, owing or incurred in any manner, whether actual or contingent, whether incurred solely or jointly with any other Person and whether as principal or surety (and including all liabilities in connection with any notes, bills or other instruments accepted by any Finance Party in connection therewith), together in each case with all renewals, modifications, consolidations or extensions thereof, and (ii) the due and punctual performance of all covenants, agreements, obligations and liabilities of the Borrowers and the Other Credit Parties under or pursuant to the Secured Party Credit Agreement and its successors the other Finance Documents (all such monetary and permitted assigns, the prompt payment in full when due (whether at stated maturity, by required prepayment, declaration, demand, by acceleration or otherwise) of the Borrower’s obligations under the Facility Letter and in accordance with the terms thereof (such other obligations being herein collectively called referred to as the “Guaranteed Obligations”"GUARANTEED OBLIGATIONS"). Each Pledgor hereby jointly and severally agrees Anything contained in this Agreement to the contrary notwithstanding, the obligations of each Guarantor hereunder shall be limited to a maximum aggregate amount equal to the greatest amount that if would not render such Guarantor's obligations hereunder subject to avoidance as a fraudulent transfer or transaction under Section 548 of Title 11 of the Borrower United States Code or any provisions of applicable Law (collectively, the "FRAUDULENT TRANSFER LAWS"), in each case after giving effect to all other Pledgor shall fail to pay in full when due (whether at stated maturityliabilities of such Guarantor, by acceleration contingent or otherwise, that are relevant under the Fraudulent Transfer Laws (specifically excluding, however, any liabilities of such Guarantor (i) in respect of intercompany indebtedness to any of the Guaranteed Obligations, such Pledgor will promptly pay the same in cash, without any demand Borrowers or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
(b) The obligations of the Pledgors under Section 2(a) shall constitute a guarantee of payment and, to the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Pledgors under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and their Affiliates to the extent that for any reason any payment such indebtedness (A) would be discharged or would be subject to a right of set-off in an amount equal to the amount paid by such Guarantor hereunder or (B) has been made subject to a security interest in favour of the Collateral Agents on behalf of the Borrower or the Pledgors Finance Parties and (ii) under any guaranty of Debt subordinated in respect right of payment to the Guaranteed Obligations which guaranty contains a limitation as to a maximum amount similar to that set forth in this paragraph pursuant to which the liability of such Guarantor hereunder is rescinded or must be otherwise restored by any holder included in the liabilities taken into account in determining such maximum amount) and after giving effect as assets of such Guarantor to the value (as determined under the applicable provisions of the Fraudulent Transfer Laws) of any rights to subrogation, contribution, reimbursement, indemnity or similar rights of such Guarantor pursuant to (i) applicable Law or (ii) any agreement providing for an equitable allocation among such Guarantor and other Affiliates of the Guaranteed Obligations, whether as a result Borrower of any proceedings obligations arising under guaranties by such parties (including the agreements in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination ARTICLE II of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, the obligations of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a any Guarantor's liability arises and payments are made by any of hereunder is limited pursuant to this paragraph to an amount that is less than the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the total amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim then it is understood and free and clear of and without deduction for any taxes. The obligations of agreed that the Pledgors under this clause (m) shall survive the payment in full portion of the Guaranteed Obligations and termination for which such Guarantor is liable hereunder shall not be reduced by any payment made hereunder by any other Person until the portion of this Guarantythe Guaranteed Obligations for which such Guarantor is not liable hereunder have been repaid.
Appears in 1 contract
Samples: Guaranty (Brooks Pharmacy, Inc.)
The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor hereby 2.1. The Guarantors, jointly and severally with the other Pledgor guaranteesand each as principal, as a primary obligor hereby absolutely and not merely as a surety unconditionally guarantee to the Secured Party Issuer the full and its successors and permitted assigns, the prompt payment in full when due (whether at stated maturity, by required prepayment, declaration, demand, by acceleration or otherwise) performance of the BorrowerObligor’s obligations under with respect to the Facility Letter and Issuer’s Rights. All payments by the Guarantors shall be paid in accordance with lawful money of the terms thereof (such obligations being herein collectively called the “Guaranteed Obligations”)United States of America. Each Pledgor hereby jointly and severally agrees that if the Borrower or other Pledgor shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of the Guaranteed Obligations, such Pledgor will promptly pay the same in cash, without any demand or notice whatsoever, and that every default in the case full and prompt performance by the Obligor of any extension its obligations with respect to the Issuer’s Rights shall give rise to a separate cause of time action hereunder and separate suits may be brought hereunder as each cause of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewalaction arises.
(b) Section 2.2. The joint and several obligations of the Pledgors under Section 2(a) shall constitute a guarantee of payment and, to the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Pledgors Guarantors under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 Issuer Guaranty shall be automatically reinstated if absolute and to the extent that for any reason any payment by or on behalf of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, the obligations of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, unconditional and shall remain in full force and effect until the entire principal of, premium, if any, and interest on the Bonds and the full and prompt performance by the Obligor of its obligations with respect to the Issuer’s Rights shall have been paid or performed or such payment or performance provided impaired upon the happening from time to time of any event, including without limitation any of the following, whether or not with notice to, or the consent of, the Guarantors:
(a) The compromise, settlement, release or termination of any or all Guaranteed Obligations of the obligations, covenants or agreements of Issuer under the Indenture or of the Issuer or the Obligor under the Loan Agreement;
(b) The failure to give notice to any one or more of the Guarantors of the occurrence of an event of default under the terms and provisions of this Issuer Guaranty, the Loan Agreement or the Indenture;
(c) The assignment or mortgaging or the purported assignment or mortgaging of all or any part of the interest of the Issuer or the Obligor in the project or the payments, revenues and receipts derived by the Issuer from the Project;
(d) The waiver of the payment, performance or observance by the Issuer, the Obligor or any one or more of the Guarantors of any of the obligations, covenants or agreements of any of them contained in the Indenture, the Loan Agreement or this Issuer Guaranty;
(e) The extension of the time for payment of any principal of, premium, if any, or interest on any Bond or under this Issuer Guaranty or of the time for performance of any other amounts payable hereunder obligations, covenants or agreements under or arising out of the Indenture, the Loan Agreement or this Issuer Guaranty or the extension or the renewal of either;
(f) The modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the Loan Agreement, provided that the obligations of Guarantors are indefeasibly paid not thereby increased or expanded without their prior written consent;
(g) The taking or the omission of any of the actions referred to in full in cash.the Indenture or the Loan Agreement or any action under this Issuer Guaranty;
(h) In Any failure, omission, delay or lack on the part of the Issuer to enforce, assert or exercise any action right, power or proceeding involving any state corporate limited partnership remedy conferred on the Issuer in this Issuer Guaranty, the Loan Agreement or limited liability company lawthe Indenture, or any applicable state, federal other act or foreign bankruptcy, insolvency, reorganization or other law affecting acts on the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account part of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower Issuer or any other person, be automatically limited and reduced of the owners from time to time of the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.Bonds;
(i) Each Pledgor assumes The voluntary or involuntary liquidation, dissolution, sale or other disposition of all responsibility or substantially all the assets, marshalling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for being and keeping itself informed the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Issuer, the Obligor or any one or more of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment Guarantors or any of the Guaranteed Obligations and the natureassets of any of them, scope and extent or any contest of the risks that each Pledgor assumes and incurs under validity of this Agreement, and agrees that the Secured Party shall have no duty to advise Issuer Guaranty in any Pledgor of information known to it regarding those circumstances or risks.such proceeding;
(j) Without limiting To the extent permitted by law, the release or discharge of any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners one or more of the Pledgors, such that each Pledgor shall bear its share Guarantors from the performance or observance of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereofobligation, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing covenant or agreement contained in this clause (j) shall not impact the joint and several liabilities Issuer Guaranty by operation of the Pledgors under this Agreement.law; or
(k) Each Pledgor hereby subordinates the payment The default or failure of all obligations and indebtedness any one or more of the Borrower Guarantors to perform fully any of his, her or its obligations set forth in this Issuer Guaranty.
Section 2.3. No setoff, counterclaim, reduction or diminution of any obligation, or any defense of any kind or nature which the other Pledgor owing Guarantors have or may come to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of have against the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, Issuer shall be available hereunder to the indefeasible payment Guarantors against the Issuer; provided that nothing contained herein shall prohibit the Guarantors from asserting any separate or related claim against the Issuer in full a separate proceeding, which proceeding shall in cash no way delay the prompt performance by Guarantors of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreementtheir obligations hereunder.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
Appears in 1 contract
Samples: Guaranty of Unassigned Issuer’s Rights (Synergetics Usa Inc)
The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor hereby Subsidiary Guarantor unconditionally guarantees, jointly and severally with the other Pledgor guaranteesSubsidiary Guarantors, and severally, as a primary obligor and not merely as a surety to the Secured Party and its successors and permitted assignssurety, the prompt due and punctual payment of all Finance Obligations, in full when due (each case, whether now or hereafter due, whether at stated maturitymaturity or earlier, by required prepaymentreason of acceleration, declarationmandatory prepayment or otherwise in accordance herewith or any other Loan Document, demand, whether or not from time to time reduced or extinguished (other than by acceleration or otherwise) reason of the Borrower’s obligations under the Facility Letter payment thereof) or hereafter increased, incurred or owing in any manner, whether actual or contingent, whether incurred solely or jointly with any other Person and whether as principal or surety (and including all liabilities in accordance connection with the terms thereof any notes, bills or other instruments accepted by any Finance Party in connection therewith), together in each case with all renewals, modifications, consolidations or extensions thereto (such obligations being herein collectively called collectively, the “Guaranteed Obligations”); provided that the Guaranteed Obligations with respect to any Subsidiary Guarantor shall exclude any Excluded Swap Obligations with respect to such Subsidiary Guarantor. Each Pledgor hereby jointly and severally agrees Anything contained in this Agreement to the contrary notwithstanding, the obligations of each Subsidiary Guarantor hereunder shall be limited to a maximum aggregate amount that if would not render such Subsidiary Guarantor’s obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11 of the United States Code or any provisions of applicable state law (collectively, the “Fraudulent Transfer Laws”), in each case after giving effect to all other liabilities of such Subsidiary Guarantor, contingent or otherwise, that are relevant under the Fraudulent Transfer Laws (specifically excluding, however, any liabilities of such Subsidiary Guarantor (i) in respect of intercompany indebtedness to the Borrower or other Pledgor shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of the Guaranteed Obligations, such Pledgor will promptly pay the same in cash, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
(b) The obligations of the Pledgors under Section 2(a) shall constitute a guarantee of payment and, to the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Pledgors under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and its Affiliates to the extent that for any reason any payment such indebtedness
(A) would be discharged or would be subject to a right of set-off in an amount equal to the amount paid by such Subsidiary Guarantor hereunder or (B) has been pledged to, and is enforceable by, the Collateral Agent on behalf of the Borrower or the Pledgors Finance Parties and (ii) under any guaranty of Indebtedness subordinated in respect right of payment to the Guaranteed Obligations which guaranty contains a limitation as to a maximum amount similar to that set forth in this paragraph pursuant to which the liability of such Subsidiary Guarantor hereunder is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, the obligations of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, included in the event of liabilities taken into account in determining such declaration (or such obligations being deemed to have become automatically due maximum amount) and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect as assets of such Subsidiary Guarantor to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors value (as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed under the applicable provisions of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(jFraudulent Transfer Laws) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion rights to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnityreimbursement, reimbursement indemnity or similar rights with respect of such Subsidiary Guarantor pursuant to (i) applicable Law or (ii) any payments it makes under this Agreement until all agreement providing for an equitable allocation among such Subsidiary Guarantor and other Affiliates of the Guaranteed Obligations and any amounts payable Borrower of obligations arising under guaranties by such parties (including the agreements in this Agreement have been indefeasibly paid and performed in fullArticle II). If any amounts are paid Subsidiary Guarantor’s liability hereunder is limited pursuant to a Pledgor in violation of this paragraph to an amount that is less than the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the total amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim then it is understood and free and clear of and without deduction for any taxes. The obligations of agreed that the Pledgors under this clause (m) shall survive the payment in full portion of the Guaranteed Obligations and termination for which such Subsidiary Guarantor is liable hereunder shall be the last portion of this Guarantythe Guaranteed Obligations to be repaid.
Appears in 1 contract
The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor of the Guarantors hereby jointly and severally with guarantees to each Lender and the other Pledgor guaranteesAdministrative Agent as hereinafter provided, as a primary obligor and not merely as a surety to the Secured Party and its successors and permitted assignssurety, the prompt payment of the Obligations in full when due (whether at stated maturity, by required as a mandatory prepayment, declaration, demand, by acceleration or otherwise) of the Borrower’s obligations under the Facility Letter and strictly in accordance with the terms thereof (such obligations being herein collectively called the “Guaranteed Obligations”)thereof. Each Pledgor The Guarantors hereby jointly and severally agrees further agree that if any of the Borrower or other Pledgor shall fail to pay Obligations are not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration or otherwise) any of ), the Guaranteed ObligationsGuarantors will, such Pledgor will jointly and severally, promptly pay the same in cashsame, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
(b) The obligations . Additionally, the Company guarantees to each Lender and the Administrative Agent as hereinafter provided, as primary obligor and not as surety, the prompt payment of the Pledgors under Section 2(a) shall constitute a guarantee of payment and, to the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Pledgors under this Agreement Guarantors in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for otherwise) strictly in accordance with the terms thereof. The Company hereby further agrees that if any of the Guaranteed ObligationsObligations are not paid in full when due (whether at stated maturity, andas a mandatory prepayment, irrespective by acceleration or otherwise), the Company will promptly pay the same, without any demand or notice whatsoever, and that in the case of any other circumstance whatsoever that might otherwise constitute a legal extension of time of payment or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, as a result of any proceedings in insolvencymandatory prepayment, bankruptcy or reorganization by acceleration or otherwise.
(d) Each Pledgor hereby agrees that until in accordance with the payment and satisfaction terms of such extension or renewal. Notwithstanding any provision to the contrary contained herein or in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured PartyCredit Documents, the obligations of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes Guarantor under this Agreement until all of and the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts other Credit Documents shall be held in trust for the benefit of the Secured Party and shall forthwith be paid limited to an aggregate amount equal to the Secured Party largest amount that would not render such obligations subject to reduce avoidance under the amount Debtor Relief Laws or any comparable provisions of the Guaranteed Obligations, whether matured or unmaturedany applicable state law.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
Appears in 1 contract
The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor of the Domestic Guarantors hereby jointly and severally with guarantees to each Lender and the other Pledgor guaranteesAdministrative Agent and each Lender and each Affiliate of a Lender that enters into a Swap Contract, as a primary obligor and not merely as a surety to the Secured Party and its successors and permitted assignssurety, the prompt payment of the Obligations in full when due (whether at stated maturity, by required as a mandatory prepayment, declarationby acceleration, demand, by acceleration as a mandatory cash collateralization or otherwise) of the Borrower’s obligations under the Facility Letter and strictly in accordance with the terms thereof (such obligations being herein collectively called the “Guaranteed Obligations”)thereof. Each Pledgor The Domestic Guarantors hereby jointly and severally agrees further agree that if any of the Borrower or other Pledgor shall fail to pay Obligations are not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration acceleration, as a mandatory cash collateralization or otherwise) any of ), the Guaranteed ObligationsDomestic Guarantors will, such Pledgor will jointly and severally, promptly pay the same in cashsame, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration acceleration, as a mandatory cash collateralization or otherwise) in accordance with the terms of such extension or renewal.
(b) The obligations Each of the Pledgors Foreign Guarantors hereby severally guarantees to each Lender and the Administrative Agent and each Lender and each Affiliate of a Lender that enters into a Swap Contract, as primary obligor and not as surety, the prompt payment of the Foreign Obligations in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) strictly in accordance with the terms thereof. Each of the Foreign Guarantors hereby further agrees that if any of such obligations are not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise), the Foreign Guarantors will, severally, promptly pay the same, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of such obligations, the same will be promptly paid in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) in accordance with the terms of such extension or renewal. Notwithstanding the foregoing, a Foreign Guarantor shall not be required to guarantee any Obligation if, in the good faith judgment of the Borrower, doing so would give rise to an adverse tax consequence under Section 2(a) shall constitute a guarantee of payment and, to the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective 965 of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Pledgors under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full)Code.
(c) The obligations Notwithstanding any provision to the contrary contained herein or in any other of the Pledgors under this Section 2 shall be automatically reinstated if and to the extent that for any reason any payment by Loan Documents or on behalf of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured PartySwap Contracts, the obligations of the Borrower under the Facility Letter may be declared to be forthwith due and payable each Guarantor (in its capacity as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payablesuch) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of and the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts other Loan Documents shall be held in trust for the benefit of the Secured Party and shall forthwith be paid limited to an aggregate amount equal to the Secured Party largest amount that would not render such obligations subject to reduce avoidance under the amount Debtor Relief Laws or any comparable provisions of the Guaranteed Obligations, whether matured or unmaturedany applicable Law.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
Appears in 1 contract
The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor 9 hereof, each of the Subsidiary Guarantors hereby jointly absolutely and severally with the other Pledgor unconditionally guarantees, as a primary obligor and not merely as a surety to the Secured Party and its successors and permitted assignssurety, the prompt full and punctual payment in full when due (whether at stated maturity, by required prepayment, declaration, demand, by upon acceleration or early termination or otherwise, and at all times thereafter) and performance of the Obligations (with respect to the US Borrower’s obligations under , such Obligations in respect of which it is not a Borrower) including without limitation any such Obligations incurred or accrued during the Facility Letter and pendency of any bankruptcy, insolvency, receivership or other similar proceeding, whether or not allowed or allowable in accordance with such proceeding (collectively, subject to the terms thereof (such obligations provisions of Section 9 hereof, being herein referred to collectively called as the “Guaranteed Obligations”); provided that the “Guaranteed Obligations” shall exclude any Excluded Swap Obligations. Upon failure by the Parent or the US Borrower, as applicable, to pay punctually any such amount, each of the Subsidiary Guarantors agrees that it shall forthwith on demand pay to the Administrative Agent for the benefit of the Lenders and, if applicable, their Affiliates, the amount not so paid at the place and in the manner specified in the Credit Agreement, any Note, or the relevant Loan Document, Guaranteed Cash Management Agreement or Guaranteed Hedge Agreement, as the case may be. This Guaranty is a guaranty of payment and not of collection. Each Pledgor hereby jointly and severally agrees that if of the Borrower Subsidiary Guarantors waives any right to require the Lender to xxx the Parent, the US Borrower, any other guarantor, or any other Pledgor shall fail to pay in full when due (whether at stated maturity, by acceleration person obligated for all or otherwise) any part of the Guaranteed Obligations, such Pledgor will promptly pay the same in cash, without or otherwise to enforce its payment against any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
(b) The obligations of the Pledgors under Section 2(a) shall constitute a guarantee of payment and, to the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Pledgors under this Agreement collateral securing all or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any part of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, the obligations of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
Appears in 1 contract
The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor of the Guarantors hereby jointly and severally guarantees to each Lender, each Affiliate of a Lender that enters into a Swap Contract with the other Pledgor guaranteesBorrower, and the Administrative Agent as hereinafter provided, as a primary obligor and not merely as a surety to the Secured Party and its successors and permitted assignssurety, the prompt payment of the Obligations in full when due (whether at stated maturity, by required as a mandatory prepayment, declarationby acceleration, demand, by acceleration as a mandatory cash collateralization or otherwise) of the Borrower’s obligations under the Facility Letter and strictly in accordance with the terms thereof (such obligations being herein collectively called the “Guaranteed Obligations”)thereof. Each Pledgor The Guarantors hereby jointly and severally agrees further agree that if any of the Borrower or other Pledgor shall fail to pay Obligations are not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration acceleration, as a mandatory cash collateralization or otherwise) any of ), the Guaranteed ObligationsGuarantors will, such Pledgor will jointly and severally, promptly pay the same in cashsame, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration acceleration, as a mandatory cash collateralization or otherwise) in accordance with the terms of such extension or renewal.
. Notwithstanding any provision to the contrary contained herein or in any other of the Loan Documents or Swap Contracts, (a) the obligations of each Guarantor under this Agreement and the other Loan Documents shall be limited to an aggregate amount equal to the largest amount that would not render such obligations subject to avoidance under the Debtor Relief Laws or any comparable provisions of any applicable state law, (b) The obligations if Denver and its Subsidiaries are required to become Guarantors pursuant to Section 7.04 prior to the time, if any, that Denver becomes a Wholly Owned Subsidiary, the liability of Denver and its Subsidiaries pursuant to this Article IV (and the Pledge Agreement) on any day shall be limited to the unpaid principal amount of the Pledgors under Section 2(a) shall constitute a guarantee of payment andMaster Intercompany Note on, to the fullest extent permitted by applicable lawand accrued and unpaid interest and fees thereunder as of, are absolutesuch day, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Pledgors under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations the liability of the Pledgors under Los Angeles Daily News pursuant to this Section 2 Article IV shall be automatically reinstated if and limited to the extent that for any reason any payment by or maximum amount permitted under the Greenco Option Agreement as in effect on behalf of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
Closing Date and (d) Each Pledgor hereby agrees prior to the time, if any, that until the payment and satisfaction in full in cash California Partnership, the York JOA, MNG/Power One Media Holding Company, Inc., the Salt Lake JOA or any of all Guaranteed Obligations and their respective Subsidiaries (including Persons which become Subsidiaries after the expiration and termination of this AgreementClosing Date pursuant to a Permitted Investment) becomes a Wholly Owned Subsidiary, it shall waive any claim and such Person shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower be required to Guarantee all or any other Pledgor of any portion of the Guaranteed Obligations or any security for any Obligations. Upon the contribution of assets by K-T to the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, the obligations of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration New Salt Lake JOA (or such obligations from becoming automatically due and payablea Subsidiary thereof) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For terms of Section 8.06(b) or the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment contribution of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until substantially all of the Guaranteed Obligations Capital Stock or assets of Los Angeles Daily News or Long Beach Publishing Company to the California Partnership (or a Subsidiary thereof) in accordance with the terms of Section 8.06(c), the Administrative Agent shall deliver to the Borrower, upon the Borrower's request and any amounts payable at the Borrower's expense, such documentation as is reasonably necessary to evidence the release of the Administrative Agent's security interest, if any, in such assets or Capital Stock (including, without limitation, amendments or terminations of UCC financing statements, if any, the return of stock certificates, if any) and the release of K-T, Los Angeles Daily News or Long Beach Publishing Company, as applicable, from all of its obligations under this Agreement have been indefeasibly paid Article IV and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the amount of the Guaranteed Obligations, whether matured or unmaturedPledge Agreement.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
Appears in 1 contract
The Guaranty. Subject In order to Section 2(j) below:
(a) Each Pledgor induce the Administrative Agent and the Lenders to enter into this Agreement and to extend credit hereunder and in recognition of the direct benefits to be received by each Subsidiary Guarantor from the proceeds of the Loans, each Subsidiary Guarantor hereby agrees with the Administrative Agent and the Lenders that such Subsidiary Guarantor hereby unconditionally and irrevocably, jointly and severally with the other Pledgor guaranteesseverally, guarantees as a primary obligor and not merely as a surety to the Secured Party full and its successors and permitted assigns, the prompt payment in full and performance by the Borrower when due (due, whether at stated upon maturity, by required prepayment, declaration, demand, by acceleration or otherwise, of any and all of (i) the Obligations of the Borrower’s obligations Borrower and the other Subsidiary Guarantors and (ii) all other amounts, obligations, covenants and duties owing by the Borrower and the other Subsidiary Guarantors to the Administrative Agent, any Lender, any Affiliate of any of them or any Indemnified Party, of every type and description (whether by reason of an extension of credit, loan, guaranty, indemnification, foreign exchange or currency swap transaction, interest rate hedging transaction or otherwise), present or future, arising under the Facility Letter and in accordance with the terms thereof each Hedging Contract that is a Loan Document (such obligations being herein collectively called collectively, the “Guaranteed Obligations”). Each Pledgor hereby If any or all of the Guaranteed Obligations become due and payable hereunder, each Subsidiary Guarantor, jointly and severally agrees that if the Borrower or other Pledgor shall fail severally, unconditionally promises to pay such Guaranteed Obligations to the Lenders, or order, on demand, together with any and all reasonable expenses which may be incurred by the Administrative Agent or the Lenders in full when due (whether at stated maturity, by acceleration or otherwise) collecting any of the Guaranteed Obligations. Notwithstanding the foregoing, the liability of Pliant Toronto hereunder shall be limited to an amount equal to the sum of (i) all amounts referred to in Section 3.3(a) paid to the Prepetition Foreign Working Capital Lenders from the proceeds of any Foreign Debt Draw, whether paid directly or indirectly to such Pledgor will promptly pay Prepetition Foreign Working Capital Lenders, and whether owed by Pliant Toronto or any other Loan Party or Subsidiary of any Loan Party, (ii) all amounts referred to in Section 3.3(c) paid to the same Prepetition Fixed Asset Lenders from the proceeds of any Foreign Debt Draw, whether paid directly or indirectly to such Prepetition Fixed Asset Lenders, and whether owed directly by Pliant Toronto or by any other Loan Party or Subsidiary of any Loan Party, (iii) without duplication of the amounts described in cashsubparagraphs (i) and (ii) above, the amount of all intercompany loans, advances or other transfers of funds or property from the Borrower (including, without any demand limitation, proceeds from the Loans or notice whatsoeveras a result of the Loan Parties’ cash management system or for goods sold or services provided on credit by the Borrower or other intercompany benefits) to Pliant Toronto on or after the Closing Date, and that in (iv) interest on the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) foregoing amounts calculated in accordance with the terms of such extension or renewal.
(b) The obligations of the Pledgors under Section 2(a) shall constitute a guarantee of payment and, to the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Pledgors under this Agreement based on the rate of interest applicable to Base Rate Loans under the Agreement, inclusive, together with costs and expenses that may be incurred by the Administrative Agent or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment Lenders from time to time in full).
(c) The obligations of enforcing the Pledgors under this Section 2 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations Guaranty and the expiration and termination of security granted by Pliant Toronto pursuant to this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, the obligations of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations Agreement and any other amounts payable hereunder are indefeasibly paid in full in cashLoan Documents.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
Appears in 1 contract
Samples: Secured Super Priority Debtor in Possession Multiple Draw Term Loan Agreement (Pliant Corp)
The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor The Guarantor hereby jointly irrevocably and severally with the other Pledgor guarantees, as a primary obligor and not merely as a surety unconditionally guarantees to the Secured Party and its successors and permitted assigns, the prompt payment in full when due (whether at stated maturity, by required prepayment, declaration, demand, by acceleration or otherwise) each of the Borrower’s Beneficiaries (i) the due, punctual and full payment of all obligations of the Company which are payable by the Company under or pursuant to any of the Facility Letter Owner Participant Agreements and in accordance with the terms thereof (such obligations being herein collectively called the “Guaranteed Obligations”). Each Pledgor hereby jointly and severally agrees that if the Borrower or other Pledgor shall fail to pay in full when due (whether at stated maturitythereof, by acceleration or otherwise, without offset or deduction; and (ii) the due and punctual performance by the Company of, and compliance by the Company with, all of its other obligations, covenants, and undertakings contained in or arising under or pursuant to each of the Owner Participant Agreements (the obligations referred to in clauses (i) and (ii) being collectively hereinafter referred to as the "Guaranteed Obligations"); provided, however, the Guaranteed Obligations shall not include any obligations of the Company which are non-recourse to the Company pursuant to the terms of the Owner Participant Agreements. Without limitation of the foregoing, in case the Company shall for any reason whatsoever fail to pay duly and punctually any payment required to be made by the Company under any of the Guaranteed Obligations, such Pledgor will promptly pay Owner Participant Agreements when and as the same in cash, without any demand or notice whatsoever, shall be due and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) payable in accordance with the terms of such extension Owner Participant Agreement, by acceleration or renewalotherwise, the Guarantor will immediately pay the same to the Person entitled thereto and, in addition, such further amount, if any, as shall be sufficient to cover the costs and expenses of collection and in case the Company shall fail to perform or comply with any of its other obligations, covenants or undertakings contained in or arising under or pursuant to any of the Owner Participant Agreements for any reason whatsoever, the Guarantor will forthwith perform or comply with such obligation, covenant or undertaking or cause the same forthwith to be performed or complied with.
(b) The obligations Without limitation of the Pledgors under Section 2(a) shall constitute a guarantee of payment andGuarantor's obligations hereunder, to the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Pledgors under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, the obligations of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and amounts payable by the Borrower) Guarantor hereunder shall forthwith become due and payable in any event be paid immediately upon demand by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole optionrespective Beneficiary entitled thereto, in immediately available funds, as such party may direct and at the event of a dispute place specified by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213Beneficiary.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
Appears in 1 contract
The Guaranty. Subject Each Guarantor hereby guarantees to Section 2(j) below:
(a) Each Pledgor hereby jointly each Secured Party and severally with the other Pledgor guaranteesAdministrative Agent as hereinafter provided, as a primary obligor and not merely as a surety to the Secured Party and its successors and permitted assignssurety, the prompt payment and performance of the Obligations in full when due (whether at stated maturity, by required as a mandatory prepayment, declaration, demand, by acceleration or otherwise) of the Borrower’s obligations under the Facility Letter and strictly in accordance with the terms thereof (such obligations being herein collectively called the “Guaranteed Obligations”)thereof. Each Pledgor Guarantor hereby jointly and severally further agrees that if any of the Borrower or other Pledgor shall fail to pay Obligations are not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration or otherwise) any of the Guaranteed Obligations), such Pledgor each Guarantor will promptly pay the same in cashsame, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
renewal (b) The obligations collectively, the “Guaranteed Obligations”). Subject to Section 10.06 and the last sentence of this Section 10.01 below, the Guarantors hereby jointly and severally agree, in furtherance of the Pledgors foregoing and not in limitation of any other right which the Administrative Agent or any Secured Party may have at law or in equity against any Guarantor by virtue hereof, that upon the failure of any Guaranteed Obligations to be paid when and as the same shall become due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise (including amounts that would become due but for the operation of the automatic stay under Section 2(a362(a) shall constitute a guarantee of payment andthe Bankruptcy Code), the Guarantors will, upon demand pay, or cause to be paid, in cash, to the fullest extent permitted by applicable lawAdministrative Agent for the ratable benefit of Secured Parties, are absolute, irrevocable and unconditional, joint and several, irrespective an amount equal to the sum of the valueunpaid principal amount of all Guaranteed Obligations then due as aforesaid, genuinenessaccrued and unpaid interest on such Guaranteed Obligations (including interest which, validitybut for Xxxxxxxx’s becoming the subject of a case under the Bankruptcy Code, regularity would have accrued on such Guaranteed Obligations, whether or enforceability not a claim is allowed against Borrower for such interest in the related bankruptcy case) and all other Guaranteed Obligations then owed to the Secured Parties as aforesaid. Notwithstanding any provision to the contrary contained herein or in any other of the Loan Documents, the Guaranteed Obligations of the Pledgors each Guarantor under this Agreement or any and the other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 Loan Documents shall be automatically reinstated if and limited to an aggregate amount equal to the extent largest amount that for any reason any payment by or on behalf of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall would not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, the render such obligations of the Borrower subject to avoidance under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a)Debtor Relief Laws.
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
Appears in 1 contract
The Guaranty. Subject In order to Section 2(j) below:
(a) Each Pledgor induce the Lenders to enter into this Agreement and to extend credit hereunder and in recognition of the direct benefits to be received by Guarantors from the extensions of credit hereunder, each Guarantor hereby agrees with Administrative Agent and the Secured Parties as follows: each Guarantor hereby unconditionally and irrevocably jointly and severally with the other Pledgor guarantees, guarantees as a primary obligor and not merely as a surety to the Secured Party full and its successors and permitted assigns, the prompt payment in full when due (due, whether at stated maturity, by required prepayment, declaration, demand, by acceleration or otherwise) of the Borrower’s obligations under the Facility Letter and in accordance with the terms thereof (such obligations being herein collectively called the “Guaranteed Obligations”). Each Pledgor hereby jointly and severally agrees that if the Borrower or other Pledgor shall fail to pay in full when due (whether at stated upon maturity, by acceleration or otherwise) , to Administrative Agent and the other Secured Parties of any and all Secured Obligations. If any or all of the Guaranteed Obligations, such Pledgor will promptly pay the same in cash, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
(b) The obligations of the Pledgors under Section 2(a) shall constitute a guarantee of payment and, to the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Secured Obligations of the Pledgors under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, the obligations of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable hereunder, each Guarantor unconditionally promises to pay such indebtedness to Administrative Agent and the other Secured Parties, on order, or demand, together with any and all reasonable expenses which may be incurred by Administrative Agent and the Pledgors other Secured Parties in collecting any of the Secured Obligations. Each Guarantor hereby agrees that this is a guaranty of payment and performance and not of collection only. Notwithstanding any provision to the contrary contained herein or in any other of the Loan Documents, to the extent the obligations of a Guarantor shall be adjudicated to be invalid or unenforceable for purposes any reason (including, because of Section 2(aany applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of each such Guarantor hereunder shall be limited to the maximum amount that is permissible under Applicable Law (whether federal or state and including, the Bankruptcy Code).. Each Guarantor’s maximum obligations hereunder (the “Maximum Guarantor Liability”) in any case or proceeding referred to below (but only in such a case or proceeding) shall not be in excess of:
(fi) Each Pledgor hereby acknowledges in a case or proceeding commenced by or against such Guarantor under the Bankruptcy Code on or within two (2) years from the date on which any of the Secured Obligations are incurred, the maximum amount that would not otherwise cause the obligations of such Guarantor under this Guaranty constitutes an instrument for Subsection 9.20 (or any other obligations of such Guarantor to Administrative Agent, the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations Lenders and any other amounts payable hereunder are indefeasibly paid Person holding any of the Secured Obligations) to be avoidable or unenforceable against such Guarantor under (A) Section 548 of the Bankruptcy Code or (B) any state fraudulent transfer or fraudulent conveyance act or statute applied in full in cash.such case or proceeding by virtue of Section 544 of the Bankruptcy Code; or
(hii) In any action in a case or proceeding involving commenced by or against such Guarantor under the Bankruptcy Code subsequent to two (2) years from the date on which any of the Secured Obligations of such Guarantor are incurred, the maximum amount that would not otherwise cause the obligations of such Guarantor under this Subsection 9.20 (or any other obligations of such Guarantor to Administrative Agent, Lenders and any other Person holding any of the Secured Obligations) to be avoidable or unenforceable against such Guarantor under any state corporate limited partnership fraudulent transfer or limited liability company fraudulent conveyance act or statute applied in any such case or proceeding by virtue of Section 544 of the Bankruptcy Code;
(iii) in a case or proceeding commenced by or against such Guarantor under any law, statute or any applicable stateregulation other than the Bankruptcy Code relating to dissolution, federal or foreign liquidation, conservatorship, bankruptcy, moratorium, readjustment of debt, compromise, rearrangement, receivership, insolvency, reorganization or other law similar debtor relief from time to time in effect affecting the rights of creditors generallygenerally (collectively, if “Other Debtor Relief Law”), the maximum amount that would not otherwise cause the obligations of such Guarantor under this Subsection 9.20 (or any Pledgor other obligations of such Guarantor to Administrative Agent, the Lenders and any other Person holding any of the Secured Obligations) to be avoidable or unenforceable against such Guarantor under Section 2(asuch Other Debtor Relief Law, including, any state fraudulent transfer or fraudulent conveyance act or statute applied in any such case or proceeding. (The substantive state or federal laws under which the possible avoidance or unenforceability of the obligations of such Guarantor under this Subsection 9.20 (or any other obligations of Guarantor to Administrative Agent, the Lenders and any other Person holding any of the Secured Obligations) shall be determined in any such case or proceeding shall hereinafter be referred to as the “Avoidance Provisions”.) To the extent set forth above, but only to the extent that the obligations of such Guarantor under this Subsection 9.20, or the transfers made by such Guarantor under the Security Documents to which it is a party, would otherwise be held subject to avoidance under any Avoidance Provisions if such Guarantor is not deemed to have received valuable consideration, fair value, fair consideration or determined to be void, voidable, invalid reasonably equivalent value for such transfers or unenforceableobligations, or subordinated if such transfers or obligations of such Guarantor under this Subsection 9.20 would render such Guarantor insolvent, or leave such Guarantor with an unreasonably small capital or unreasonably small assets to the claims of any other creditorsconduct its business, on account or cause such Guarantor to have incurred debts (or to have intended to have incurred debts) beyond its ability to pay such debts as they mature, in each case as of the amount time any of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount obligations of such liability shallGuarantor are deemed to have been incurred and transfers made under such Avoidance Provisions, without any further action by then such Pledgorobligations shall be reduced to that amount which, after giving effect thereto, would not cause the Borrower obligations of such Guarantor under this Subsection 9.20 (or any other personobligations of such Guarantor to Administrative Agent, the Lenders or any other Person holding any of the Secured Obligations), as so reduced, to be automatically limited subject to avoidance under such Avoidance Provisions. This paragraph is intended solely to preserve the rights hereunder of Administrative Agent, the Lenders and reduced any other Person holding any of the Secured Obligations to the highest amount (after giving effect maximum extent that would not cause the obligations of such Guarantor under this Subsection 9.20 to be subject to avoidance under any Avoidance Provisions, and neither such Guarantor nor any other Person shall have any right, defense, offset, or claim under this paragraph as against Administrative Agent, the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of Lenders or any other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed Person holding any of the Borrower’s financial condition and assets, and of all other circumstances bearing upon Secured Obligations that would not otherwise be available to such Person under the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and Avoidance Provisions. Each Guarantor agrees that the Secured Party shall have no duty to advise any Pledgor obligations of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors Guarantor under this Agreement.
(k) Each Pledgor hereby subordinates Subsection 9.20 may at any time and from time to time exceed the payment Maximum Guarantor Liability, without impairing the guaranty or any provision contained herein or affecting the rights and remedies of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party Administrative Agent and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this AgreementLenders hereunder.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
Appears in 1 contract
The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor of the Guarantors hereby unconditionally guarantees, jointly and severally with the other Pledgor guarantees, as a primary obligor Guarantors and not merely as a surety to the Secured Party and its successors and permitted assignsseverally, the prompt full and punctual payment in full and performance when due (whether at stated maturity, by required prepayment, declaration, demand, by upon acceleration or otherwise) of the Borrower’s Obligations, including, without limitation, (i) the principal of and interest on each Loan made to the Borrower pursuant to the Loan Agreement, (ii) [Intentionally Omitted], (iii) all obligations of the Borrower owing to any Lender or any affiliate of any Lender under any Swap Agreement, (iv) all other amounts payable by the Borrower or any of its Subsidiaries under the Facility Letter Loan Agreement, any Swap Agreement and the other Loan Documents and (v) the punctual and faithful performance, keeping, observance, and fulfillment by the Borrower of all of the agreements, conditions, covenants, and obligations of the Borrower contained in accordance with the terms thereof Loan Documents (such obligations all of the foregoing being herein referred to collectively called as the “Guaranteed Obligations” and the holders from time to time of the Guaranteed Obligations being referred to collectively as the “Holders of Obligations”). Each Pledgor hereby jointly and severally agrees that if Upon (x) the failure by the Borrower or other Pledgor shall fail any of its Affiliates, as applicable, to pay in full when due punctually any such amount or perform such obligation, and (whether at stated maturityy) such failure continuing beyond any applicable grace or notice and cure period, by acceleration or otherwise) any each of the Guaranteed Obligations, Guarantors agrees that it shall forthwith on demand pay such Pledgor will promptly pay amount or perform such obligation at the same in cash, without any demand or notice whatsoever, place and that in the manner specified in the Loan Agreement, any Swap Agreement or the relevant Loan Document, as the case of any extension of time of payment or renewal of any may be. Each of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
(b) The obligations of the Pledgors under Section 2(a) shall constitute a guarantee of payment and, to the fullest extent permitted by applicable law, are Guarantors hereby agrees that this Guaranty is an absolute, irrevocable and unconditional, joint and several, irrespective unconditional guaranty of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Pledgors under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash is not a guaranty of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligationscollection.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, the obligations of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
Appears in 1 contract
Samples: Loan Agreement (Fuller H B Co)
The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor The Subsidiary Guarantors hereby unconditionally jointly and severally with the other Pledgor guarantees, as a primary obligor and not merely as a surety guarantee to the Secured Party Administrative Agent and its the Lenders, and their successors and permitted assigns, the prompt full and punctual payment in full when due or performance (whether at stated maturity, by required prepayment, declaration, demand, by acceleration or otherwise) of the Borrower’s obligations Obligations, including (i) principal of and interest on the Loans, (ii) all fees and other amounts and Obligations from time to time owing to the Administrative Agent and the Lenders by the Borrower and each other Obligor under the Facility Letter and this Agreement or under any other Loan Document, in each case strictly in accordance with the terms hereof and thereof and (iii) the punctual and faithful performance, keeping, observance and fulfillment by the Borrower and Subsidiary Guarantors of all the agreements, conditions, covenants and obligations of the Borrower and Subsidiary Guarantors contained in the Loan Documents (such obligations being herein collectively called the “Guaranteed Obligations”). Each Pledgor The Subsidiary Guarantors hereby further jointly and severally agrees agree that if the Borrower or any other Pledgor Obligor shall fail to pay any amount in full when due or perform any such obligation (whether at stated maturity, by acceleration or otherwise) any of ), the Guaranteed Obligations, such Pledgor Subsidiary Guarantors will promptly pay the same or perform such obligation at the place and in cashthe manner specified herein or in the relevant Loan Document, as the case may be, without any demand or notice whatsoever, and that in the case of -156- 4882-5123-7900 v.12 any extension of time of payment or performance or renewal of any of the Guaranteed -157- 4882-5123-7900 v.12 Obligations, the same will be promptly paid in full or performed when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
(b) The obligations of the Pledgors under Section 2(a) shall constitute a guarantee of payment and, to the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Pledgors under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, the obligations of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
Appears in 1 contract
The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor hereby The Subsidiary Guarantors, jointly and severally with severally, hereby unconditionally guarantee the other Pledgor guarantees, as a primary obligor full and not merely as a surety to the Secured Party and its successors and permitted assigns, the prompt punctual payment in full when due (whether at stated maturity, by required prepayment, declaration, demand, by upon acceleration or otherwise) of (i) all principal of and interest (including any interest that accrues after the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency or reorganization of any Borrower’s obligations , whether or not allowed or allowable in such proceeding) on any Loan under the Facility Amended and Restated Credit Agreement, (ii) each payment required to be made by any Borrower under the Amended and Restated Credit Agreement in respect of any Letter of Credit, and any payment required to be made by any Borrower in accordance with respect of any Lender Letter of Credit, in each case when and as due, including payments in respect of reimbursement of disbursements, interest thereon and obligations to provide cash collateral ("Reimbursement Obligations"), (iii) all other amounts payable by any Subsidiary Guarantor hereunder or under any other Financing Documents (as defined in the terms thereof Security Agreement), (such obligations being herein collectively called the “Guaranteed Obligations”). Each Pledgor hereby jointly and severally agrees that if the Borrower or other Pledgor shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwiseiv) any of the Guaranteed Obligations, such Pledgor will promptly pay the same in cash, without any demand or notice whatsoever, and that Hedging Obligations (as defined in the case of Security Agreement) and (v) any extension of time of payment renewals or renewal extensions of any of the foregoing, in each case whether now outstanding or hereafter arising (such obligations, the "Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
(b) The obligations of the Pledgors under Section 2(a) shall constitute a guarantee of payment and, to the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Pledgors under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full").
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must be otherwise restored . Upon failure by any holder of Borrower to pay punctually any of the Guaranteed Obligationssuch amount, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby each Subsidiary Guarantor agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between that it shall forthwith on demand pay the Pledgors amount not so paid at the place and the Secured Party, the obligations of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, manner specified in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, Amended and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Restated Credit Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
Appears in 1 contract
The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor of the Guarantors and PAH hereby jointly and severally with guarantees to the other Pledgor guaranteesAdministrative Agent, for the ratable benefit of the Secured Parties, as a hereinafter provided, as primary obligor and not merely as a surety to the Secured Party and its successors and permitted assignssurety, the prompt payment of the Obligations (or, in the case of PAH, the Term Loan Borrower’s Obligations) in full when due (whether at stated maturity, by required as a mandatory prepayment, declarationby acceleration, demand, by acceleration as a mandatory cash collateralization or otherwise) of the Borrower’s obligations under the Facility Letter and strictly in accordance with the terms thereof (such obligations being herein collectively called the “Guaranteed Obligations”)thereof. Each Pledgor The Guarantors and PAH hereby jointly and severally agrees further agree that if any of the Borrower or other Pledgor shall fail to pay Obligations (or, in the case of PAH, the Term Loan Borrower’s Obligations) are not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration acceleration, as a mandatory cash collateralization or otherwise) any of ), the Guaranteed ObligationsGuarantors or PAH, such Pledgor will as applicable, will, jointly and severally, promptly pay the same in cashsame, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations (or, in the case of PAH, the Term Loan Borrower’s Obligations), the same will be promptly paid in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration acceleration, as a mandatory cash collateralization or otherwise) in accordance with the terms of such extension or renewal.
(b) The obligations Notwithstanding any provision to the contrary contained herein or in any other of the Pledgors under Section 2(a) shall constitute a guarantee of payment and, to the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Pledgors under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured PartyLoan Documents, the obligations of each Guarantor and PAH under this Agreement and the Borrower under other Loan Documents shall be limited to an aggregate amount equal to the Facility Letter may be declared to be forthwith due and payable largest amount as provided will result in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due with respect hereto and payable) as against the Borrower and that, in the event of such declaration (thereto not constituting a fraudulent transfer or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (conveyance after giving full effect to the right of contribution established liability under such guarantee set forth in Section 2(j)) that is valid 4 hereof and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs its related contribution rights but before taking into account any liabilities under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received guarantee by such Pledgor Guarantor or PAH, as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreementapplicable.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
Appears in 1 contract
Samples: Credit Agreement (Platform Specialty Products Corp)
The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor Guarantor hereby jointly and severally with the other Pledgor Guarantors unconditionally guarantees, as a primary obligor and not merely as a surety to the Secured Party Agent and its each Holder and their respective successors and permitted assigns, the prompt and punctual payment in full and performance when due (whether at stated maturity, by required prepayment, declaration, demand, by acceleration or otherwise) of the Borrower’s obligations principal of and interest (including any interest, fees, costs or charges that would accrue but for the provisions of (i) the Code after any bankruptcy or insolvency petition under the Facility Letter Code and (ii) any other Debtor Relief Laws) on the Notes held by the Holders, and all other Obligations from time to time owing to the Agent and the Holders by any Note Party under any Note Document (including, without limitation, (A) all fees, costs, expenses (including, without limitation, all reasonable and documented fees, expenses and disbursements of any law firm or other external legal counsel) incurred by the Agent in enforcing any rights under this Agreement or any other Note Document, in each case to the extent and in the manner required under Sections 11.02 and 11.03, and (B) the Make-Whole Amount and/or any Prepayment Fee, if applicable), in each case strictly in accordance with the terms thereof (such obligations being herein collectively called the “Guaranteed Obligations”). Each Pledgor The Guarantors hereby jointly and severally agrees agree that if the Borrower Issuer or other Pledgor Guarantor(s) shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of the Guaranteed Obligations, such Pledgor the Guarantors will promptly pay the same in cash, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal. Each Guarantor further agrees that the Guaranteed Obligations may be extended, modified, amended or renewed, in whole or in part, without notice to or further assent from it, and that it will remain bound upon its guarantee notwithstanding any extension, modification, amendment or renewal of any Guaranteed Obligation.
(b) The obligations of the Pledgors under Section 2(a) shall constitute Each Guarantor further agrees that its guarantee hereunder constitutes a guarantee of payment andand performance when due and not of collection, and waives any right to require that any resort be had by the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Pledgors under this Agreement Agent or any other agreement or instrument referred Holder to herein, or any substitution, release or exchange of any other guarantee of or security held for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or to any security for balance of any deposit account or credit on the books of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, the obligations Agent or any Holder in favor of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower Issuer or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
Appears in 1 contract
The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor The Company hereby jointly unconditionally guarantees the full and severally with the other Pledgor guarantees, as a primary obligor and not merely as a surety to the Secured Party and its successors and permitted assigns, the prompt punctual payment in full when due (whether at stated maturity, by required prepayment, declaration, demand, by upon acceleration or otherwise) of each Guaranteed Obligation, as hereinafter defined, and agrees to pay all out-of-pocket expenses (including reasonable counsel fees and expenses) incurred by the Borrower’s obligations Administrative Agent or any Lender (together, and with their respective successors and assigns, the “Beneficiaries”, and each individually, a “Beneficiary”) in enforcing any rights under this Guaranty. Upon failure by any Subsidiary Borrower to pay punctually any Guaranteed Obligation, the Facility Letter Company shall forthwith on demand pay the amount not so paid at the place and in accordance with the terms thereof (manner specified herein or in the instrument evidencing such obligations being herein collectively called the Guaranteed Obligation. “Guaranteed Obligations” means (i) all principal of and interest on all Advances made pursuant to this Agreement (including, without limitation, any interest (“Post-Petition Interest”). Each Pledgor hereby jointly and severally agrees that if ) which accrues (or which would accrue but for such case, proceeding or action) after the Borrower commencement of any case, proceeding or other Pledgor shall fail action 94 relating to pay in full when due the bankruptcy, insolvency or reorganization of such Borrower (whether at stated maturityor not such interest is allowed or allowable as a claim in any such case, proceeding or other action) on all Advances made pursuant to the Credit Agreement), (ii) all other amounts payable by acceleration or otherwiseany Borrower from time to time pursuant to this Agreement and the Notes (including any Post-Petition Interest with respect to such amounts), and (iii) any of the Guaranteed Obligationsrenewals, such Pledgor will promptly pay the same in cash, without any demand refinancings or notice whatsoever, and that in the case of any extension of time of payment or renewal extensions of any of the Guaranteed Obligations, the same will be promptly paid in full when due foregoing (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
(b) The obligations of the Pledgors under Section 2(a) shall constitute a guarantee of payment and, to the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Pledgors under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in fullincluding Post-Petition Interest).
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, the obligations of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
Appears in 1 contract
Samples: 5 Year Credit Agreement (Marsh & McLennan Companies, Inc.)
The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor hereby Guarantor unconditionally guarantees, jointly and severally with the other Pledgor guaranteesGuarantors, and severally, as a primary obligor and not merely as a surety to surety: (i) the Secured Party due and its successors and permitted assigns, the prompt punctual payment in full when due (whether at stated maturity, by required prepayment, declaration, demand, by acceleration or otherwise) of the Borrower’s all obligations under the Facility Letter Bridge Notes whether now or hereafter due, owing or incurred in any manner, whether actual or contingent, whether incurred solely or jointly with any other Person and whether as principal or surety (and including all liabilities in accordance connection with any notes, bills or other instruments accepted by any Holder in connection therewith), together in each case with all renewals, modifications, consolidations or extensions thereof, and (ii) the terms thereof due and punctual performance of all covenants, agreements, obligations and liabilities of the Borrower and the Other Credit Parties under or pursuant to the Bridge Notes and the other Bridge Loan Documents (all such monetary and other obligations being herein collectively called referred to as the “Guaranteed Obligations”). Each Pledgor hereby jointly and severally agrees Anything contained in this Agreement to the contrary notwithstanding, the obligations of each Guarantor hereunder shall be limited to a maximum aggregate amount equal to the greatest amount that if would not render such Guarantor’s obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11 of the United States Code or any provisions of applicable state law (collectively, the “Fraudulent Transfer Laws”), in each case after giving effect to all other liabilities of such Guarantor, contingent or otherwise, that are relevant under the Fraudulent Transfer Laws (specifically excluding, however, any liabilities of such Guarantor (i) in respect of intercompany indebtedness to the Borrower or other Pledgor shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of the Guaranteed Obligations, such Pledgor will promptly pay the same in cash, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
(b) The obligations of the Pledgors under Section 2(a) shall constitute a guarantee of payment and, to the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Pledgors under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and its Affiliates to the extent that such indebtedness (A) would be discharged or would be subject to a right of set-off in an amount equal to the amount paid by such Guarantor hereunder or (B) has been pledged to, and is enforceable by, Collateral Agent for the benefit of the Collateral Agent or Holders or and (ii) under any reason guaranty of Indebtedness subordinated in right of payment to the Guaranteed Obligations which guaranty contains a limitation as to a maximum amount similar to that set forth in this paragraph pursuant to which the liability of such Guarantor hereunder is included in the liabilities taken into account in determining such maximum amount) and after giving effect as assets of such Guarantor to the value (as determined under the applicable provisions of the Fraudulent Transfer Laws) of any payment by rights to subrogation, contribution, reimbursement, indemnity or on behalf similar rights of such Guarantor pursuant to (i) applicable Law or (ii) any agreement providing for an equitable allocation among such Guarantor and other Affiliates of the Borrower or of obligations arising under guaranties by such parties (including the Pledgors agreements in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination Article II of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, the obligations of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a any Guarantor’s liability arises and payments are made by any of hereunder is limited pursuant to this paragraph to an amount that is less than the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the total amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim then it is understood and free and clear of and without deduction for any taxes. The obligations of agreed that the Pledgors under this clause (m) shall survive the payment in full portion of the Guaranteed Obligations and termination for which such Guarantor is liable hereunder shall be the last portion of this Guarantythe Guaranteed Obligations to be repaid.
Appears in 1 contract
Samples: Guaranty (WorldSpace, Inc)
The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor hereby jointly and severally with the other Pledgor The Guarantor unconditionally guarantees, as a primary obligor and not merely as a surety to the Secured due and punctual payment of any amounts due under or in connection with any Guaranteed Document, together with all renewals, modifications, consolidations or extensions thereof and whether now or hereafter due, owing or incurred in any manner, whether actual or contingent, whether incurred solely or jointly with any other Person and whether as principal or surety (and including all liabilities in connection with any notes, bills or other instruments accepted by any Guaranteed Finance Party and its successors and permitted assignsin connection therewith), the prompt payment together in full when due (whether at stated maturityeach case with all renewals, by required prepaymentmodifications, declaration, demand, by acceleration consolidations or otherwise) of the Borrower’s obligations under the Facility Letter and in accordance with the terms extensions thereof (all such obligations being herein collectively called referred to as the “"Guaranteed Obligations”"). Each Pledgor hereby jointly and severally agrees that if the Borrower or other Pledgor shall fail to pay Anything contained in full when due (whether at stated maturity, by acceleration or otherwise) any of the Guaranteed Obligations, such Pledgor will promptly pay the same in cash, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
(b) The obligations of the Pledgors under Section 2(a) shall constitute a guarantee of payment and, this Agreement to the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Pledgors under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Partycontrary notwithstanding, the obligations of the Borrower Guarantor hereunder shall be limited to a maximum aggregate amount equal to the greatest amount that would not render the Guarantor’s obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” Section 548 of Title 11 of the Facility Letter for purposes United States Code or any provisions of Section 2(aapplicable state Law (collectively, the "Fraudulent Transfer Laws"), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (each case after giving effect to all other liabilities of the right Guarantor, contingent or otherwise, that are relevant under the Fraudulent Transfer Laws (specifically excluding, however, any liabilities of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
Guarantor (i) Each Pledgor assumes all responsibility for being and keeping itself informed in respect of intercompany indebtedness to any other Group Obligor or any of its Affiliates to the Borrower’s financial condition and assetsextent that such indebtedness (A) would be discharged or would be subject to a right of set-off in an amount equal to the amount paid by the Guarantor hereunder or (B) has been pledged to, and of all other circumstances bearing upon is enforceable by, the risk of nonpayment Security Agent on behalf of the Guaranteed Finance Parties and (ii) under any guaranty of Debt subordinated in right of payment to the Guaranteed Obligations and the nature, scope and extent of the risks which guaranty contains a limitation as to a maximum amount similar to that each Pledgor assumes and incurs under set forth in this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable paragraph pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner which the liability of the Pledgors Guarantor hereunder is included in the liabilities taken into account in determining such maximum amount) and after giving effect as assets of the Guarantor to the value (as determined under this Agreement.
(lthe applicable provisions of the Fraudulent Transfer Laws) Neither Pledgor shall exercise of any right of rights to subrogation, contribution, indemnityreimbursement, reimbursement indemnity or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations Guarantor pursuant to (i) applicable Law or (ii) any agreement providing for an equitable allocation among the Guarantor and any amounts payable other Group Obligor and its Affiliates of obligations arising under guaranties by such parties (including the agreements in Article II of this Agreement have been indefeasibly paid and performed in fullAgreement). If any amounts are paid the Guarantor’s liability hereunder is limited pursuant to a Pledgor in violation of this paragraph to an amount that is less than the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the total amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim then it is understood and free and clear of and without deduction for any taxes. The obligations of agreed that the Pledgors under this clause (m) shall survive the payment in full portion of the Guaranteed Obligations and termination for which the Guarantor is liable hereunder shall be the last portion of this Guarantythe Guaranteed Obligations to be repaid.
Appears in 1 contract
The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor of the Guarantors hereby jointly and severally with guarantees to each Lender, the L/C Issuer, each Swap Bank, each Treasury Management Bank, the Administrative Agent, and each other Pledgor guaranteesholder of the Obligations as hereinafter provided, as a primary obligor and not merely as a surety to the Secured Party and its successors and permitted assignssurety, the prompt payment of all Obligations in full when due (whether at stated maturity, by required as a mandatory prepayment, declarationby acceleration, demand, by acceleration as a mandatory Cash Collateralization or otherwise) of the Borrower’s obligations under the Facility Letter and strictly in accordance with the terms thereof (such obligations being herein collectively called for each Guarantor, subject to the proviso in this sentence, its “Guaranteed Obligations”); provided, however, that with respect to any Foreign Subsidiary that has been a direct or indirect Subsidiary for less than one year, such Foreign Subsidiary’s guaranty shall be limited to the Canadian Obligations until the date such Foreign Subsidiary has been a Subsidiary for one year. Each Pledgor The Guarantors hereby jointly and severally agrees further agree that if any of the Borrower or other Pledgor shall fail to pay Guaranteed Obligations are not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration acceleration, as a mandatory Cash Collateralization or otherwise) any of ), the Guaranteed ObligationsGuarantors will, such Pledgor will jointly and severally, promptly pay the same in cashsame, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration acceleration, as a mandatory Cash Collateralization or otherwise) in accordance with the terms of such extension or renewal.
. Notwithstanding any provision to the contrary contained herein or in any other of the Loan Documents, Secured Swap Agreements or Secured Treasury Management Agreements, (bi) The the obligations of each Guarantor under this Agreement and the Pledgors under Section 2(a) other Loan Documents shall constitute a guarantee of payment and, be 112 limited to an aggregate amount equal to the fullest extent permitted by largest amount that would not render such obligations subject to avoidance under the Debtor Relief Laws or any comparable provisions of any applicable law, are absolute, irrevocable state law or other applicable Law and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of (ii) the Guaranteed Obligations of the Pledgors under this Agreement or a Guarantor shall exclude any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower or the Pledgors in respect of the Guaranteed Excluded Swap Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, the obligations of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the amount of the Guaranteed Obligations, whether matured or unmaturedGuarantor.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
Appears in 1 contract
Samples: Credit Agreement (Montrose Environmental Group, Inc.)
The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor For valuable consideration, each Guarantor hereby absolutely and unconditionally, jointly and severally with the other Pledgor severally, guarantees, as a primary obligor and as a guaranty of payment and performance and not merely as a surety to the Secured Party and its successors and permitted assignsguaranty of collection, the prompt payment in full when due (due, whether at stated maturity, by required prepayment, declarationupon acceleration, demand, by acceleration demand or otherwise) , and at all times thereafter, of any and all of the Borrower’s obligations Secured Obligations, whether for principal, interest, premiums, fees, indemnities, damages, costs, expenses or otherwise, of the Borrower to the Secured Parties, arising hereunder or under any other Loan Document, any Secured Cash Management Agreement or any Secured Hedge Agreement (including all renewals, extensions, amendments, refinancings and other modifications thereof and all costs, attorneys’ fees and expenses incurred by the Facility Letter and Bank in accordance connection with the terms thereof collection or enforcement thereof) (such obligations being herein collectively called for each Guarantor, subject to the proviso in this sentence, its “Guaranteed Obligations”); provided that the Guaranteed Obligations of a Guarantor shall exclude any Excluded Swap Obligations with respect to such Guarantor. Each Pledgor hereby jointly The Bank’s books and severally agrees that if records showing the Borrower or other Pledgor shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any amount of the Guaranteed Obligations, such Pledgor will promptly pay the same Obligations shall be admissible in cash, without evidence in any demand action or notice whatsoeverproceeding, and that in shall be binding upon each Guarantor, and conclusive for the case purpose of any extension of time of payment or renewal of any establishing the amount of the Guaranteed Secured Obligations, . This Guaranty shall not be affected by the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
(b) The obligations of the Pledgors under Section 2(a) shall constitute a guarantee of payment and, to the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Secured Obligations of the Pledgors under this Agreement or any other instrument or agreement or instrument referred to hereinevidencing any Secured Obligations, or any substitutionby the existence, release validity, enforceability, perfection, non-perfection or exchange extent of any other guarantee of collateral therefor, or security for by any of fact or circumstance relating to the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that Secured Obligations which might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, the obligations of the Borrower Guarantors, or any of them, under the Facility Letter this Guaranty, and each Guarantor hereby irrevocably waives any defenses it may be declared now have or hereafter acquire in any way relating to be forthwith due and payable as provided in paragraph headed “Remedies” any or all of the Facility Letter for purposes foregoing. The liability of Section 2(a)each Guarantor is continuing and relates to any Indebtedness, notwithstanding including that arising under successive transactions which shall either continue the Indebtedness or from time to time renew it after it has been satisfied. This Guaranty is cumulative and does not supersede any stayother outstanding guaranties, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event liability of each Guarantor under this Guaranty is exclusive of such declaration Guarantor’s liability under any other guaranties signed by such Guarantor. Each Guarantor’s liability hereunder shall not exceed at any one time the largest amount during the period commencing with Guarantor’s execution of this Guaranty and thereafter that would not render such Guarantor’s 72384428_3 obligations hereunder subject to avoidance under Section 548 of the Bankruptcy Code (Title 11, United States Code) or such obligations being deemed to have become automatically due any comparable provisions of any applicable state law. This Guaranty amends and payable)restates in its entirety the Existing Guaranty. The parties intend, such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes execution of Section 2(a).
(f) Each Pledgor hereby acknowledges this Guaranty, that this Guaranty constitutes an instrument for the payment will not constitute or effectuate a novation of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to created and evidenced by the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations Existing Guaranty and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Existing Credit Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
Appears in 1 contract
Samples: Continuing and Unconditional Guaranty (Craft Brew Alliance, Inc.)
The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor hereby jointly and severally with the other Pledgor The Guarantor unconditionally guarantees, as a primary obligor and not merely as a surety to the Secured due and punctual payment of any amounts due under or in connection with any Guaranteed Document, together with all renewals, modifications, consolidations or extensions thereof and whether now or hereafter due, owing or incurred in any manner, whether actual or contingent, whether incurred solely or jointly with any other Person and whether as principal or surety (and including all liabilities in connection with any notes, bills or other instruments accepted by any Guaranteed Finance Party and its successors and permitted assignsin connection therewith), the prompt payment together in full when due (whether at stated maturityeach case with all renewals, by required prepaymentmodifications, declaration, demand, by acceleration consolidations or otherwise) of the Borrower’s obligations under the Facility Letter and in accordance with the terms extensions thereof (all such obligations being herein collectively called referred to as the “Guaranteed Obligations”). Each Pledgor hereby jointly and severally agrees that if the Borrower or other Pledgor shall fail to pay Anything contained in full when due (whether at stated maturity, by acceleration or otherwise) any of the Guaranteed Obligations, such Pledgor will promptly pay the same in cash, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
(b) The obligations of the Pledgors under Section 2(a) shall constitute a guarantee of payment and, this Agreement to the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Pledgors under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Partycontrary notwithstanding, the obligations of the Borrower Guarantor hereunder shall be limited to a maximum aggregate amount equal to the greatest amount that would not render the Guarantor’s obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” Section 548 of Title 11 of the Facility Letter for purposes United States Code or any provisions of Section 2(aapplicable state Law (collectively, the “Fraudulent Transfer Laws”), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (each case after giving effect to all other liabilities of the right Guarantor, contingent or otherwise, that are relevant under the Fraudulent Transfer Laws (specifically excluding, however, any liabilities of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
Guarantor (i) Each Pledgor assumes all responsibility for being and keeping itself informed in respect of intercompany indebtedness to any other Group Obligor or any of its Affiliates to the Borrower’s financial condition and assetsextent that such indebtedness (A) would be discharged or would be subject to a right of set-off in an amount equal to the amount paid by the Guarantor hereunder or (B) has been pledged to, and of all other circumstances bearing upon is enforceable by, the risk of nonpayment Security Agent on behalf of the Guaranteed Finance Parties and (ii) under any guaranty of Debt subordinated in right of payment to the Guaranteed Obligations and the nature, scope and extent of the risks which guaranty contains a limitation as to a maximum amount similar to that each Pledgor assumes and incurs under set forth in this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable paragraph pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner which the liability of the Pledgors Guarantor hereunder is included in the liabilities taken into account in determining such maximum amount) and after giving effect as assets of the Guarantor to the value (as determined under this Agreement.
(lthe applicable provisions of the Fraudulent Transfer Laws) Neither Pledgor shall exercise of any right of rights to subrogation, contribution, indemnityreimbursement, reimbursement indemnity or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations Guarantor pursuant to (i) applicable Law or (ii) any agreement providing for an equitable allocation among the Guarantor and any amounts payable other Group Obligor and its Affiliates of obligations arising under guaranties by such parties (including the agreements in Article II of this Agreement have been indefeasibly paid and performed in fullAgreement). If any amounts are paid the Guarantor’s liability hereunder is limited pursuant to a Pledgor in violation of this paragraph to an amount that is less than the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the total amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim then it is understood and free and clear of and without deduction for any taxes. The obligations of agreed that the Pledgors under this clause (m) shall survive the payment in full portion of the Guaranteed Obligations and termination for which the Guarantor is liable hereunder shall be the last portion of this Guarantythe Guaranteed Obligations to be repaid.
Appears in 1 contract
The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor hereby Guarantor unconditionally guarantees, jointly and severally with the other Pledgor guaranteesGuarantors, and severally, as a primary obligor and not merely as a surety to surety: (i) the Secured Party due and its successors and permitted assigns, the prompt punctual payment in full when due (whether at stated maturity, by required prepayment, declaration, demand, by acceleration or otherwise) of the Borrower’s all obligations under the Facility Letter Convertible Notes whether now or hereafter due, owing or incurred in any manner, whether actual or contingent, whether incurred solely or jointly with any other Person and whether as principal or surety (and including all liabilities in accordance connection with any notes, bills or other instruments accepted by any Holder in connection therewith), together in each case with all renewals, modifications, consolidations or extensions thereof, and (ii) the terms thereof due and punctual performance of all covenants, agreements, obligations and liabilities of the Borrower and the Other Credit Parties under or pursuant to the Convertible Notes and the other Convertible Note Documents (all such monetary and other obligations being herein collectively called referred to as the “Guaranteed Obligations”). Each Pledgor hereby jointly and severally agrees Anything contained in this Agreement to the contrary notwithstanding, the obligations of each Guarantor hereunder shall be limited to a maximum aggregate amount equal to the greatest amount that if would not render such Guarantor’s obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11 of the United States Code or any provisions of applicable state law (collectively, the “Fraudulent Transfer Laws”), in each case after giving effect to all other liabilities of such Guarantor, contingent or otherwise, that are relevant under the Fraudulent Transfer Laws (specifically excluding, however, any liabilities of such Guarantor (i) in respect of intercompany indebtedness to the Borrower or other Pledgor shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of the Guaranteed Obligations, such Pledgor will promptly pay the same in cash, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
(b) The obligations of the Pledgors under Section 2(a) shall constitute a guarantee of payment and, to the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Pledgors under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and its Affiliates to the extent that such indebtedness (A) would be discharged or would be subject to a right of set-off in an amount equal to the amount paid by such Guarantor hereunder or (B) has been pledged to, and is enforceable by, Collateral Agent for the benefit of the Collateral Agent or the Holders or and (ii) under any reason guaranty of Indebtedness subordinated in right of payment to the Guaranteed Obligations which guaranty contains a limitation as to a maximum amount similar to that set forth in this paragraph pursuant to which the liability of such Guarantor hereunder is included in the liabilities taken into account in determining such maximum amount) and after giving effect as assets of such Guarantor to the value (as determined under the applicable provisions of the Fraudulent Transfer Laws) of any payment by rights to subrogation, contribution, reimbursement, indemnity or on behalf similar rights of such Guarantor pursuant to (i) applicable Law or (ii) any agreement providing for an equitable allocation among such Guarantor and other Affiliates of the Borrower or of obligations arising under guaranties by such parties (including the Pledgors agreements in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination Article II of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, the obligations of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a any Guarantor’s liability arises and payments are made by any of hereunder is limited pursuant to this paragraph to an amount that is less than the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the total amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim then it is understood and free and clear of and without deduction for any taxes. The obligations of agreed that the Pledgors under this clause (m) shall survive the payment in full portion of the Guaranteed Obligations and termination for which such Guarantor is liable hereunder shall be the last portion of this Guarantythe Guaranteed Obligations to be repaid.
Appears in 1 contract
Samples: Guaranty (WorldSpace, Inc)
The Guaranty. Subject In order to Section 2(j) below:
(a) Each Pledgor induce the Lenders to enter into this Agreement and to extend credit hereunder and in recognition of the direct benefits to be received by each Guarantor from the proceeds of the Loans, each Guarantor hereby agrees with the Administrative Agent and the Lenders that such Guarantor hereby unconditionally and irrevocably, jointly and severally with the other Pledgor guaranteesseverally, guarantees as a primary obligor and not merely as a surety to the Secured Party full and its successors and permitted assigns, the prompt payment in full when due (due, whether at stated maturity, by required prepayment, declaration, demand, by acceleration or otherwise) of the Borrower’s obligations under the Facility Letter and in accordance with the terms thereof (such obligations being herein collectively called the “Guaranteed Obligations”). Each Pledgor hereby jointly and severally agrees that if the Borrower or other Pledgor shall fail to pay in full when due (whether at stated upon maturity, by acceleration or otherwise) , of any and all of the Obligations of the Borrower to the Lenders. If any or all of the Obligations of the Borrower to the Lenders become due and payable hereunder, each Guarantor, jointly and severally, unconditionally promises to pay such Obligations to the Lenders, or order, on demand, together with any and all reasonable expenses which may be incurred by the Administrative Agent or the Lenders in collecting any of the Guaranteed Obligations. Notwithstanding any provision to the contrary contained in this Agreement, the guarantee by CIHC under this Article X shall constitute a pre-Petition unsecured claim and the Obligations guaranteed by such Pledgor will promptly pay guarantee shall include only the same Term Loan Obligations. In order to induce the Lenders to enter into this Agreement and to extend credit hereunder and in cash, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any recognition of the Guaranteed Obligationsdirect benefits to be received by each Guarantor from the proceeds of the Loans, the same will be promptly paid in Borrower hereby agrees with the Administrative Agent and the Lenders that the Borrower hereby unconditionally and irrevocably, jointly and severally, guarantees as primary obligor and not merely as surety the full and prompt payment when due (due, whether at extended upon maturity, by acceleration or otherwise) in accordance with , of any and all of the terms Obligations of CFCC to the Lenders. For purposes of such extension or renewal.
(b) The obligations of the Pledgors under Section 2(a) shall constitute a guarantee of payment and, to the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Pledgors under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, the obligations of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgorguaranty, the Borrower or any other person, shall be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors treated as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs a Guarantor under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.Article X.
Appears in 1 contract
Samples: Secured Super Priority Debtor in Possession Credit Agreement (Conseco Inc)
The Guaranty. Subject In order to Section 2(jinduce the Agents and the Lenders (collectively, the “Lender Creditors”) below:
(a) Each Pledgor to enter into this Agreement and the Lenders to extend credit hereunder, and to induce the other Guaranteed Creditors to enter into Designated Interest Rate Protection Agreements and Designated Treasury Services Agreements, in recognition of the direct benefits to be received by Holdings from the proceeds of the Term Loans and the entering into of such Designated Interest Rate Protection Agreements and Designated Treasury Services Agreements, Holdings hereby jointly and severally agrees with the other Pledgor guarantees, Guaranteed Creditors as a follows: Holdings hereby unconditionally and irrevocably guarantees as primary obligor and not merely as a surety surety: (i) to the Secured Party Lender Creditors and its successors any applicable Indemnified Person the full and permitted assigns, the prompt payment in full when due (whether at stated maturity, by required prepayment, declaration, demand, by acceleration or otherwise) of the Borrower’s obligations under the Facility Letter and in accordance with the terms thereof (such obligations being herein collectively called the “Guaranteed Obligations”). Each Pledgor hereby jointly and severally agrees that if the Borrower or other Pledgor shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of all Obligations described in clause (x) of the definition of “Obligations”; and (ii) to each applicable Guaranteed Obligations, such Pledgor will promptly pay the same in cash, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed ObligationsCreditor, the same will be promptly paid in full and prompt payment when due (whether at extended the stated maturity, by acceleration or otherwise) of all Obligations described in accordance with the terms of such extension or renewal.
clause (by) The obligations of the Pledgors under Section 2(a) shall constitute a guarantee definition of payment and“Obligations” (collectively, to the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity “Guaranteed Obligations”). If any or enforceability all of the Guaranteed Obligations of the Pledgors under this Agreement or any other agreement or instrument referred Holdings to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, the obligations of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that Creditors becomes due and payable pursuant hereunder, Holdings, unconditionally and irrevocably, promises to pay such indebtedness to the terms of this Agreement shall Administrative Agent and/or the other Guaranteed Creditors, on order, on demand, together with any and all expenses which may be shared as between the Pledgors as determined in good faith incurred by the general partners of Administrative Agent and the Pledgors, such that each Pledgor shall bear its share of any such obligation other Guaranteed Creditors in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by collecting any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.Guaranteed
Appears in 1 contract
The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor of the Guarantors hereby unconditionally guarantees, jointly and severally with the other Pledgor guarantees, as a primary obligor Guarantors and not merely as a surety to the Secured Party and its successors and permitted assignsseverally, the prompt full and punctual payment in full and performance when due (whether at stated maturity, by required prepayment, declaration, demand, by upon acceleration or otherwise) of the Borrower’s Obligations, including, without limitation, (i) the principal of and interest on each Loan made to the Borrower pursuant to the Credit Agreement, (ii) any obligations of the Borrower to reimburse LC Disbursements (“Reimbursement Obligations”), (iii) all other amounts payable by the Borrower or any of its Subsidiaries under the Facility Letter Credit Agreement and the other Loan Documents and (iv) the punctual and faithful performance, keeping, observance, and fulfillment by the Borrower of all of the agreements, conditions, covenants, and obligations of the Borrower contained in accordance with the terms thereof Loan Documents (such obligations all of the foregoing being herein referred to collectively called as the “Guaranteed Obligations” and the holders from time to time of the Guaranteed Obligations being referred to collectively as the “Holders of Guaranteed Obligations”). Each Pledgor hereby jointly and severally agrees that if Upon (x) the failure by the Borrower or other Pledgor shall fail any of its Affiliates, as applicable, to pay in full when due punctually any such amount or perform such obligation, and (whether at stated maturityy) such failure continuing beyond any applicable grace or notice and cure period, by acceleration or otherwise) any each of the Guaranteed Obligations, Guarantors agrees that it shall forthwith on demand pay such Pledgor will promptly pay amount or perform such obligation at the same in cash, without any demand or notice whatsoever, place and that in the manner specified in the Credit Agreement or the relevant Loan Document, as the case of any extension of time of payment or renewal of any may be. Each of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
(b) The obligations of the Pledgors under Section 2(a) shall constitute a guarantee of payment and, to the fullest extent permitted by applicable law, are Guarantors hereby agrees that this Guaranty is an absolute, irrevocable and unconditional, joint and several, irrespective unconditional guaranty of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Pledgors under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash is not a guaranty of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligationscollection.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, the obligations of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
Appears in 1 contract
Samples: Credit Agreement (Chicos Fas Inc)
The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor hereby of the Guarantors hereby, subject to the provisions of Section 4(g), jointly and severally with the other Pledgor guaranteesseverally, absolutely, unconditionally, irrevocably, completely and immediately, as a primary obligor and not merely as a surety surety, guarantees to the Secured Party and its successors and permitted assigns, CoBank the prompt and complete payment in full and performance when due (whether at stated maturity, by required as a mandatory prepayment, declaration, demand, by acceleration or otherwise) of the Obligations. Upon failure by any Borrower’s obligations under the Facility Letter and in accordance with the terms thereof (such obligations being herein collectively called the “Guaranteed Obligations”). Each Pledgor hereby jointly and severally agrees that if the Borrower , any of its respective Subsidiaries, or other Pledgor shall fail any Guarnator, as applicable, to pay in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration or otherwise) any of the Guaranteed Obligations, such Pledgor each of the Guarantors, jointly and severally, agrees that it will promptly pay the same without set-off or counterclaim at the place and in cashthe manner specified in the Loan Continuing Guaranty Loan Nos. RX0583 and RX0584 Documents, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended stated maturity, as a mandatory prepayment, by acceleration or otherwise) in accordance with the terms of such extension or renewal.;
(b) The obligations Each Guarantor further hereby, jointly and severally, agrees to pay to CoBank, upon demand, any and all losses and expenses, including, without limitation, reasonable attorneys’ fees and expenses, paid or incurred by CoBank in enforcing or attempting to enforce or collecting or attempting to collect, or obtaining advice of counsel with respect of, any right with respect to, any or all of the Pledgors under Section 2(a) shall constitute a guarantee of payment and, to the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Pledgors under this Agreement Obligation or any other agreement or instrument referred to hereinLoan Document, including, without limitation, this Guaranty, or in attempting to protect or preserve any substitutionproperty, release personal or exchange of real, securing the Obligations or pledged under any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).Loan Document;
(c) The obligations Each Guarantor hereby, jointly and severally, guarantees any sum or sums which become due and owing to CoBank as a result of any order of a bankruptcy court which requires CoBank to turn over moneys paid by any Borrower, any Guarantor or any other person to CoBank on account of the Pledgors under Obligations. Each Guarantor agrees that this Section 2 Guaranty shall continue to be automatically reinstated effective or be reinstated, as the case may be, if and to the extent that for at any reason time any payment by any Borrower, any Guarantor or any other person to CoBank on behalf account of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must otherwise be otherwise returned or restored by any holder upon the insolvency or bankruptcy of any of the Guaranteed ObligationsBorrower, whether as a result of any proceedings in insolvencyGuarantor, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, the obligations of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced all as though such payment had not been made; and
(d) Notwithstanding any provision to the highest amount (after giving effect to the right of contribution established contrary contained herein or in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2Loan Document, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share maximum liability of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises Guarantor hereunder and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing Loan Documents shall in no event exceed the aggregate amount that would render the guaranty of such Guarantor subject to such Pledgor, whether now existing or hereafter arising, including but not limited to avoidance under any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreementapplicable law.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
Appears in 1 contract
The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor of the Domestic Guarantors hereby jointly and severally guarantees to each Lender, each Affiliate of a Lender that enters into a Swap Contract with a Credit Party, the other Pledgor guaranteesAdministrative Agent and the Security Trustee as hereinafter provided, as a primary obligor and not merely as a surety to the Secured Party and its successors and permitted assignssurety, the prompt payment of the Obligations in full when due (whether at stated maturity, by required as a mandatory prepayment, declarationby acceleration, demand, by acceleration as a mandatory cash collateralization or otherwise) of the Borrower’s obligations under the Facility Letter and strictly in accordance with the terms thereof (such obligations being herein collectively called the “Guaranteed Obligations”)thereof. Each Pledgor The Domestic Guarantors hereby jointly and severally agrees further agree that if any of the Borrower or other Pledgor shall fail to pay Obligations are not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration acceleration, as a mandatory cash collateralization or otherwise) any of ), the Guaranteed ObligationsDomestic Guarantors will, such Pledgor will jointly and severally, promptly pay the same in cashsame, without any demand or notice whatsoeverwhatsoever (other than as otherwise expressly required pursuant to the Credit Documents), and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration acceleration, as a mandatory cash collateralization or otherwise) in accordance with the terms of such extension or renewal.
(b) The obligations Each of the Pledgors under Section 2(aForeign Guarantors hereby jointly and severally guarantees to each Lender, the Administrative Agent and the Security Trustee as hereinafter provided, as primary obligor and not as surety, the prompt payment of the Foreign Obligations in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) shall constitute strictly in accordance with the terms thereof. Each of the Foreign Guarantors hereby further agrees that if any of such obligations are not paid in full when due (whether at stated maturity, as a guarantee mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise), the Foreign Guarantors will, jointly and severally, promptly pay the same, without any demand or notice whatsoever (other than as otherwise expressly required pursuant to the Credit Documents), and that in the case of any extension of time of payment and, to the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Pledgors under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange renewal of any other guarantee of such obligations, the same will be promptly paid in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or security for any otherwise) in accordance with the terms of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal such extension or equitable discharge or defense of a surety or Pledgor (except for payment in full)renewal.
(c) The obligations BioReliance hereby guarantees to each Lender, the Administrative Agent and the Security Trustee as hereinafter provided, as primary obligor and not as surety, the prompt payment of the Pledgors under this Section 2 shall be automatically reinstated Foreign Obligations in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) strictly in accordance with the terms thereof. BioReliance hereby further agrees that if and any of such obligations are not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise), BioReliance will promptly pay the same, without any demand or notice whatsoever (other than as otherwise expressly required pursuant to the extent Credit Documents), and that for in the case of any reason any extension of time of payment by or on behalf of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder renewal of any of such obligations, the Guaranteed Obligationssame will be promptly paid in full when due (whether at extended maturity, whether as a result of any proceedings in insolvencymandatory prepayment, bankruptcy or reorganization by acceleration, as a mandatory cash collateralization or otherwise) in accordance with the terms of such extension or renewal.
(d) Each Pledgor hereby agrees that until Notwithstanding any provision to the payment and satisfaction contrary contained herein or in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations Credit Documents or any security for any of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured PartySwap Contracts, the obligations of each Guarantor (in its capacity as such) under this Credit Agreement and the Borrower other Credit Documents shall be limited to an aggregate amount equal to the largest amount that would not render such obligations subject to avoidance under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding Debtor Relief Laws or any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment comparable provisions of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213applicable Law.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
Appears in 1 contract
Samples: Credit Agreement (Bioreliance Corp)
The Guaranty. Subject In order to Section 2(jinduce the Lenders to enter into this Agreement and to extend credit hereunder and in recognition of the direct benefits to be received by each Subsidiary Guarantor and each Borrower from the proceeds of the Revolving Loans and the issuance of the Letters of Credit, each Subsidiary Guarantor and each Borrower hereby agrees with the Lenders as follows: (i) below:
(a) Each Pledgor each US Subsidiary Guarantor hereby unconditionally and irrevocably, jointly and severally with the other Pledgor guaranteesseverally, guarantees as a primary obligor and not merely as a surety to the Secured Party full and its successors and permitted assigns, the prompt payment in full when due (due, whether at stated maturity, by required prepayment, declaration, demand, by acceleration or otherwise) of the Borrower’s obligations under the Facility Letter and in accordance with the terms thereof (such obligations being herein collectively called the “Guaranteed Obligations”). Each Pledgor hereby jointly and severally agrees that if the Borrower or other Pledgor shall fail to pay in full when due (whether at stated upon maturity, by acceleration or otherwise) , of any and all of the Guaranteed Obligations, such Pledgor will promptly pay the same in cash, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any Obligations of the Guaranteed ObligationsBorrowers to the Lenders, (ii) each Canadian Subsidiary Guarantor hereby unconditionally and irrevocably, severally, guarantees as primary obligor and not merely as surety the same will be promptly paid in full and prompt payment when due (due, whether at extended upon maturity, by acceleration or otherwise) in accordance with the terms , of such extension or renewal.
(b) The obligations of the Pledgors under Section 2(a) shall constitute a guarantee of payment and, to the fullest extent permitted by applicable law, are absolute, irrevocable any and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability all of the Guaranteed Obligations of the Pledgors under this Agreement Canadian Borrower to the Lenders and (iii) each Borrower hereby unconditionally and irrevocably, jointly and severally, guarantees as primary obligor and not merely as surety the full and prompt payment when due, whether upon maturity, by acceleration or otherwise, of any and all of the Guaranteed Obligations of the other agreement Borrower to the Lenders. If any or instrument referred all of the Guaranteed Obligations of the US Borrower to hereinthe Lenders become due and payable hereunder, each US Subsidiary Guarantor and the Canadian Borrower, jointly and severally, unconditionally promises to pay such Guaranteed Obligations to the Lenders, or order, on demand, together with any substitution, release and all reasonable expenses which may be incurred by the DIP Agent or exchange of any other guarantee of or security for the Lenders in collecting any of the Guaranteed Obligations, and, irrespective of . If any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower or the Pledgors in respect all of the Guaranteed Obligations is rescinded of the Canadian Borrower to the Lenders became due and payable hereunder, each US Credit Party, jointly and severally, and each Canadian Subsidiary, severally, unconditionally promises to pay such Guaranteed Obligations to the Lenders, or must order, on demand, together with any and all reasonable expenses which may be otherwise restored incurred by any holder of the DIP Agent or the Lenders in collecting any of the Guaranteed Obligations. Notwithstanding the foregoing, whether as a result the Subsidiary Guarantors shall not include the subsidiaries of any proceedings the Borrowers incorporated in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that Canada until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, the obligations of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement Canadian Approvals have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the amount of the Guaranteed Obligations, whether matured or unmaturedobtained.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
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The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor Guarantor hereby jointly and severally with the other Pledgor Guarantors unconditionally guarantees, as a primary obligor and not merely as a surety to the each Secured Party and its their respective successors and permitted assigns, the prompt and punctual payment in full and performance when due (whether at stated maturity, by required prepayment, declaration, demand, by acceleration or otherwise) of the Borrower’s obligations principal of and interest (including any interest that accrues after the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency or reorganization of any Credit Party (or could accrue but for the operation of applicable Debtor Relief Laws), whether or not such interest is allowed or allowable as a claim in any such case, proceeding or other action) on the Loans, and all other Indebtedness from time to time owing to the Secured Parties by any Credit Party under any Loan Document incurred by the Facility Letter Administrative Agent in enforcing any rights under this Agreement or any other Loan Document, in each case, to the extent and in the manner required under Section 12.03, and the Applicable Premium, if applicable), in each case strictly in accordance with the terms thereof (such obligations being herein collectively called the “Guaranteed Obligations”). Each Pledgor The Guarantors hereby jointly and severally agrees agree that if the Borrower or other Pledgor Guarantor(s) shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of the Guaranteed Obligations, such Pledgor the Guarantors will promptly pay the same in cash, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal. Each Guarantor further agrees that the Guaranteed Obligations may be extended, modified, amended or renewed, in whole or in part, without notice to or further assent from it, and that it will remain bound upon its guarantee notwithstanding any extension, modification, amendment or renewal of any Guaranteed Obligation.
(b) The obligations of the Pledgors under Section 2(a) shall constitute Each Guarantor further agrees that its guarantee hereunder constitutes a guarantee of payment andand performance when due and not of collection, and waives any right to require that any resort be had by the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Pledgors under this Agreement Administrative Agent or any other agreement or instrument referred Secured Party to herein, or any substitution, release or exchange of any other guarantee of or security held for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower or the Pledgors in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or to any security for balance of any deposit account or credit on the books of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, the obligations of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction Administrative Agent or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid Secured Party in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights favor of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(j) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Agreement until all of the Guaranteed Obligations and any amounts payable under this Agreement have been indefeasibly paid and performed in full. If any amounts are paid to a Pledgor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes. The obligations of the Pledgors under this clause (m) shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
Appears in 1 contract
Samples: Senior Secured Term Loan Credit Agreement (Berry Corp (Bry))
The Guaranty. Subject to Section 2(j) below:
(a) Each Pledgor hereby Guarantor unconditionally guarantees, jointly and severally with the other Pledgor guaranteesGuarantors, and severally, as a primary obligor and not merely as a surety to surety: (x) the Secured Party due and its successors and permitted assigns, the prompt punctual payment in full when due (whether at stated maturity, by required prepayment, declaration, demand, by acceleration or otherwise) of all Senior Credit Obligations of the Borrower’s , whether now or hereafter due, owing or incurred in any manner, whether actual or contingent, whether incurred solely or jointly with any other Person and whether as principal or surety (and including all liabilities in connection with any notes, bills or other instruments accepted by any Credit Party in connection therewith), together in each case with all renewals, modifications, consolidations or extensions thereof, and (y) the due and punctual performance of all covenants, agreements, obligations and liabilities of the Borrower and the Other Loan Parties under or pursuant to the Facility Letter Loan Documents and in accordance with the terms thereof other Finance Documents (all such monetary and other obligations being herein collectively called referred to as the “Guaranteed Obligations”). Each Pledgor hereby jointly and severally agrees Anything contained in this Agreement to the contrary notwithstanding, the obligations of each Guarantor hereunder shall be limited to a maximum aggregate amount equal to the greatest amount that if would not render such Guarantor’s obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11 of the United States Code or any provisions of applicable state law (collectively, the “Fraudulent Transfer Laws”), in each case after giving effect to all other liabilities of such Guarantor, contingent or otherwise, that are relevant under the Fraudulent Transfer Laws (specifically excluding, however, any liabilities of such Guarantor (i) in respect of intercompany indebtedness to the Borrower or other Pledgor shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of the Guaranteed Obligations, such Pledgor will promptly pay the same in cash, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
(b) The obligations of the Pledgors under Section 2(a) shall constitute a guarantee of payment and, to the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Pledgors under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Pledgor (except for payment in full).
(c) The obligations of the Pledgors under this Section 2 shall be automatically reinstated if and its Affiliates to the extent that for any reason any payment such indebtedness (A) would be discharged or would be subject to a right of set-off in an amount equal to the amount paid by such Guarantor hereunder or (B) has been pledged to, and is enforceable by, the Collateral Agent on behalf of the Borrower or the Pledgors Finance Parties and (ii) under any guaranty of Indebtedness subordinated in respect right of payment to the Guaranteed Obligations which guaranty contains a limitation as to a maximum amount similar to that set forth in this paragraph pursuant to which the liability of such Guarantor hereunder is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
(d) Each Pledgor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 2(a), whether by subrogation or otherwise, against the Borrower or any other Pledgor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.
(e) The Pledgors jointly and severally agree that, as between the Pledgors and the Secured Party, the obligations of the Borrower under the Facility Letter may be declared to be forthwith due and payable as provided in paragraph headed “Remedies” of the Facility Letter for purposes of Section 2(a), notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, included in the event of liabilities taken into account in determining such declaration (or such obligations being deemed to have become automatically due maximum amount) and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Pledgors for purposes of Section 2(a).
(f) Each Pledgor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that any Secured Party, at its sole option, in the event of a dispute by such Pledgor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
(g) This Guaranty is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising, and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable hereunder are indefeasibly paid in full in cash.
(h) In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Pledgor under Section 2(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 2(a), then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Pledgor, the Borrower or any other person, be automatically limited and reduced to the highest amount (after giving effect as assets of such Guarantor to the right of contribution established in Section 2(j)) that is valid and enforceable and not subordinated to the claims of other creditors value (as determined in such action or proceeding.
(i) Each Pledgor assumes all responsibility for being and keeping itself informed under the applicable provisions of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Pledgor assumes and incurs under this Agreement, and agrees that the Secured Party shall have no duty to advise any Pledgor of information known to it regarding those circumstances or risks.
(jFraudulent Transfer Laws) Without limiting any other provisions of this Section 2, each party hereto hereby agrees that any obligation that becomes due and payable pursuant to the terms of this Agreement shall be shared as between the Pledgors as determined in good faith by the general partners of the Pledgors, such that each Pledgor shall bear its share of any such obligation in proportion rights to the distribution of loan proceeds it receives from the Borrower on the date of the Initial Drawdown as reported in writing to the Secured Party. In the event that a liability arises and payments are made by any of the Pledgors in respect thereof, then each Pledgor agrees to make such payment(s) as between themselves so that following such payment(s) each of the Pledgors shall have shared such liability in accordance with the foregoing sentence. For the avoidance of doubt, the foregoing in this clause (j) shall not impact the joint and several liabilities of the Pledgors under this Agreement.
(k) Each Pledgor hereby subordinates the payment of all obligations and indebtedness of the Borrower or the other Pledgor owing to such Pledgor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower or the other Pledgor to such Pledgor as subrogee of the Secured Party or resulting from the Pledgor’s performance under this Agreement, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Secured Party so requests, any such obligation or indebtedness of the Borrower or either Pledgor to a Pledgor shall be enforced and performance received by such Pledgor as trustee for the Secured Party and the proceeds thereof shall be paid over to the Secured Party on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Pledgors under this Agreement.
(l) Neither Pledgor shall exercise any right of subrogation, contribution, indemnityreimbursement, reimbursement indemnity or similar rights with respect of such Guarantor pursuant to (i) applicable Law or (ii) any payments it makes under this Agreement until all agreement providing for an equitable allocation among such Guarantor and other Affiliates of the Guaranteed Obligations and any amounts payable Borrower of obligations arising under this Agreement have been indefeasibly paid and performed guaranties by such parties (including the agreements in fullArticle II). If any amounts are paid Guarantor’s liability hereunder is limited pursuant to a Pledgor in violation of this paragraph to an amount that is less than the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Party and shall forthwith be paid to the Secured Party to reduce the total amount of the Guaranteed Obligations, whether matured or unmatured.
(m) The Pledgors shall make all payments hereunder without setoff or counterclaim then it is understood and free and clear of and without deduction for any taxes. The obligations of agreed that the Pledgors under this clause (m) shall survive the payment in full portion of the Guaranteed Obligations and termination for which such Guarantor is liable hereunder shall be the last portion of this Guarantythe Guaranteed Obligations to be repaid.
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