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Common use of Validity of Obligations Clause in Contracts

Validity of Obligations. (a) The Performance Guarantor agrees that its obligations under this Performance Guaranty are absolute and unconditional, irrespective of: (i) the validity, enforceability, avoidance, subordination, discharge, or disaffirmance by any Person (including a trustee in bankruptcy or insolvency practitioner) of the Guaranteed Obligations, (ii) the absence of any attempt by the Administrative Agent (or by the Seller or Canadian Guarantor) to collect on any Pool Receivables or to realize upon any other Collateral or any other property or collateral, or to obtain performance or observance of the Guaranteed Obligations from the Covered Entities or the Seller, the Canadian Guarantor or any other Person, (iii) the waiver, consent, amendment, modification, extension, forbearance or granting of any indulgence by the Administrative Agent (or by the Seller or Canadian Guarantor) with respect to any provision of any agreement or instrument evidencing the Guaranteed Obligations, (iv) any change of the time, manner or place of performance of, or in any other term of any of the Guaranteed Obligations, including, without limitation, any amendment to or modification of any of the Transaction Documents, (v) any law, rule, regulation or order of any jurisdiction affecting any term or provision of any of the Guaranteed Obligations, or rights of the Administrative Agent (or of the Seller or Canadian Guarantor) with respect thereto, (vi) the failure by the Administrative Agent (or by the Seller or Canadian Guarantor) to take any steps to perfect and maintain perfected its interest in any Collateral or other property or in any security or collateral related to the Guaranteed Obligations, (vii) any failure to obtain any consent, authorization or approval from or other action by or to notify or file with, any Governmental Authority required in connection with the performance of the obligations hereunder by the Performance Guarantor, (viii) any impossibility or impracticability of performance, illegality, force majeure, any act of government, or other circumstances which might constitute a defense available to, or a discharge of any Covered Entity or the Performance Guarantor, or any other circumstance, event or happening whatsoever whether foreseen or unforeseen and whether similar to or dissimilar to anything referred to above, (ix) any manner of application of Collateral or any other assets of any Covered Entity or of the Seller or Canadian Guarantor, or proceeds thereof, to satisfy all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents and (x) any change, restructuring or termination of the corporate structure or existence of any Covered Entity, the Seller, Canadian Guarantor or the Performance Guarantor or any other Person or the equity ownership, existence, control, merger, consolidation or sale, lease or transfer of any of the assets of any such Person, or any bankruptcy, insolvency, winding up, dissolution, liquidation, receivership, assignment for the benefit of creditors, arrangement, composition, readjustment or reorganization of, or similar proceedings affecting, any Covered Entity, the Seller the Canadian Guarantor or any of their assets or obligations. The Performance Guarantor waives all set-offs and counterclaims and all presentments, demands of performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices of acceptance of this Performance Guaranty. The Performance Guarantor’s obligations under this Performance Guaranty shall not be limited if the Administrative Agent (on behalf of the Secured Parties) is precluded for any reason (including, without limitation, the application of the automatic stay to a Covered Entity under Section 362 of the Bankruptcy Code) from enforcing or exercising any right or remedy with respect to the Guaranteed Obligations, and the Performance Guarantor shall perform or observe, upon demand, the Guaranteed Obligations that would otherwise have been due and performable or observable by any Covered Entity had such right and remedies been permitted to be exercised. (b) Should any money due or owing under this Performance Guaranty not be recoverable from the Performance Guarantor due to any of the matters specified in this Section 2, then, in any such case, such money shall nevertheless be recoverable from the Performance Guarantor as though the Performance Guarantor were principal debtor in respect thereof and not merely a Performance Guarantor and shall be paid by the Performance Guarantor forthwith.

Appears in 2 contracts

Samples: Performance Guaranty (NCR Atleos Corp), Performance Guaranty (NCR Corp)

Validity of Obligations. (a) The Performance Guarantor agrees that its obligations under this Performance Guaranty are shall be absolute and unconditional, irrespective of: of (i) the validity, enforceability, avoidance, subordination, discharge, discharge or disaffirmance by any Person (including a trustee in bankruptcy or insolvency practitionerbankruptcy) of the Guaranteed Obligations, (ii) the absence of any attempt by the Administrative Agent (Agent, any Purchaser or by the Seller or Canadian Guarantor) SPV to collect on any Pool Receivables or to realize upon any other Collateral or any other property or collateralReceivables, or to obtain performance or observance of the Guaranteed Obligations from the any Covered Entities or the Seller, the Canadian Guarantor Entity or any other Person, (iii) the waiver, consent, amendment, modification, extension, forbearance or granting of any indulgence by the Administrative Agent (Agent, any Purchaser or by the Seller or Canadian Guarantor) SPV with respect to any provision of any agreement or instrument evidencing the Guaranteed Obligations, (iv) any change of the time, manner or place of performance of, or in any other term or provision of any of the Guaranteed Obligations, including, without limitation, any amendment to or modification of any of the Transaction Documents, (v) any law, rule, regulation or order of any jurisdiction affecting any term or provision of any of the Guaranteed Obligations, or rights of the Administrative Agent (Agent, any Purchaser or of the Seller or Canadian Guarantor) SPV with respect thereto, (vi) the failure by the Administrative Agent (Agent, any Purchaser or by the Seller or Canadian Guarantor) SPV to take any steps to perfect and maintain perfected its interest in any Receivable, the Collateral or any portion thereof or other property or in any security or collateral related to the Guaranteed Obligations, (vii) any failure to obtain any consent, authorization or approval from or other action by or to notify or file with, any Governmental Authority required in connection with the performance of the obligations hereunder by the Performance Guarantor, (viii) any impossibility or impracticability of performance, illegality, force majeure, any act of government, or other circumstances which might constitute a defense available to, or a discharge of any Covered Entity or the Performance Guarantor, or any other circumstance, event or happening whatsoever whether foreseen or unforeseen and whether similar to or dissimilar to anything referred to above, (ix) any manner of application of Collateral or any other assets of any Covered Entity or of the Seller or Canadian GuarantorSPV, or proceeds thereof, to satisfy all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents, or any manner of sale or other disposition of any collateral Collateral for all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents and (x) any change, restructuring or termination of the corporate structure or existence of any Covered Entity, the Seller, Canadian Guarantor or the Performance Guarantor or any other Person or the equity ownership, existence, control, merger, consolidation or sale, lease or transfer of any of the assets of any such Person, or any bankruptcy, insolvency, winding up, dissolution, liquidation, receivership, assignment for the benefit of creditors, arrangement, composition, readjustment or reorganization of, or similar proceedings affecting, any Covered Entity, the Seller the Canadian Guarantor SPV or any of their assets or obligations. The Performance Guarantor waives all set-offs and counterclaims and all presentments, demands of performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices of acceptance of this Performance Guaranty. The Performance Guarantor’s obligations under this Performance Guaranty shall not be limited if the Administrative Agent (on behalf of the Secured Parties) or any Purchaser is precluded for any reason (including, without limitation, the application of the automatic stay to a Covered Entity under Section 362 of the Bankruptcy Code) from enforcing or exercising any right or remedy with respect to the Guaranteed Obligations, and the Performance Guarantor shall perform or observe, upon demand, the Guaranteed Obligations that would could otherwise have been due and performable or observable by any Covered Entity had such right and remedies been permitted to be exercised. (b) Should any money due or owing under this Performance Guaranty not be recoverable from the Performance Guarantor due to any of the matters specified above in this Section 22(a), then, in any such case, such money shall nevertheless be recoverable from the Performance Guarantor as though the Performance Guarantor were a principal debtor in respect thereof and not merely a Performance Guarantor guarantor and shall be paid by the Performance Guarantor forthwith.

Appears in 2 contracts

Samples: Performance Guaranty (Mallinckrodt PLC), Performance Guaranty (Mallinckrodt PLC)

Validity of Obligations. (a) The Performance Guarantor agrees that its obligations under this Performance Guaranty are shall be absolute and unconditional, irrespective of: of (i) the validity, enforceability, avoidance, subordination, discharge, or disaffirmance by any Person (including a trustee in bankruptcy or insolvency practitionerbankruptcy) of the Guaranteed Obligations, (ii) the absence of any attempt by the Administrative Agent (Administrator or any Purchaser to collect any Receivables, or the absence of any attempt by the Seller or Canadian Guarantor) to collect on any Pool Receivables or to realize upon any other Collateral Administrator or any other property or collateral, or Beneficiary to obtain performance or observance of the Guaranteed Obligations from the Covered Entities or the Seller, the Canadian Guarantor any applicable Originator or any other Person, (iii) the waiver, consent, amendment, modification, extension, forbearance or granting of any indulgence by the Administrative Agent (or by the Seller or Canadian Guarantor) Administrator with respect to any provision of any agreement or instrument evidencing the Guaranteed Obligations, (iv) any change of the time, manner or place of performance of, or in any other term of any of the Guaranteed Obligations, including, without limitation, any amendment to or modification of any of the Transaction Documents, (v) any law, rule, regulation or order of any jurisdiction affecting any term or provision of any of the Guaranteed Obligations, or rights of the Administrative Agent (Administrator or of the Seller or Canadian Guarantor) any other Beneficiary with respect thereto, (vi) the failure by the Administrative Agent (Administrator or by the Seller or Canadian Guarantor) any Purchaser to take any steps to perfect and maintain perfected its interest in any Collateral Receivable or other property or in any security or collateral related to the Guaranteed Obligations, (vii) any failure to obtain any consent, authorization or approval from or other action by or to notify or file with, any Governmental Authority governmental authority or regulatory body required in connection with the performance of the obligations hereunder by the Performance Guarantor, Guarantor or (viii) any impossibility or impracticability of performance, illegality, force majeure, any act of government, or other circumstances which might constitute a defense default available to, or a discharge of any Covered Entity Originator or the Performance Guarantor, or any other circumstance, event or happening whatsoever whether foreseen or unforeseen and whether similar to or dissimilar to anything referred to above, (ix) any manner of application of Collateral or any other assets of any Covered Entity or of the Seller or Canadian Guarantor, or proceeds thereof, to satisfy all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents and (x) any change, restructuring or termination of the corporate structure or existence of any Covered Entity, the Seller, Canadian Guarantor or the Performance Guarantor or any other Person or the equity ownership, existence, control, merger, consolidation or sale, lease or transfer of any of the assets of any such Person, or any bankruptcy, insolvency, winding up, dissolution, liquidation, receivership, assignment for the benefit of creditors, arrangement, composition, readjustment or reorganization of, or similar proceedings affecting, any Covered Entity, the Seller the Canadian Guarantor or any of their assets or obligations. The Performance Guarantor waives all set-offs and counterclaims and all presentments, demands of performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices of acceptance of this Performance Guaranty. The Performance Guarantor’s obligations under this Performance Guaranty shall not be limited if the Administrative Agent (on behalf of the Secured Parties) Administrator or any other Beneficiary is precluded for any reason (including, without limitation, the application of the automatic stay to a Covered Entity under Section 362 of the Bankruptcy Code) from enforcing or exercising any right or remedy with respect to the Guaranteed Obligations, and the Performance Guarantor shall perform or observe, upon demand, the Guaranteed Obligations that would otherwise have been due and performable or observable by any Covered Entity the applicable Originator had such right and remedies been permitted to be exercised. (b) Should any money due or owing under this Performance Guaranty not be recoverable from the Performance Guarantor due to any of the matters specified in this Section 2, then, in any such case, such money shall nevertheless be recoverable from the Performance Guarantor as though the Performance Guarantor were principal debtor in respect thereof and not merely a Performance Guarantor and shall be paid by the Performance Guarantor forthwith.

Appears in 2 contracts

Samples: Performance Guaranty (Triumph Group Inc), Performance Guaranty (Triumph Group Inc)

Validity of Obligations. (a) The Performance Guarantor agrees that its obligations under this Performance Guaranty are absolute and unconditional, irrespective of: (i) the validity, enforceability, avoidance, subordination, discharge, or disaffirmance by any Person (including a trustee in bankruptcy or insolvency practitioner) of the Guaranteed Obligations, (ii) the absence of any attempt by the Administrative Agent any Secured Party (or by the Seller or Canadian GuarantorSPE) to collect on any Pool Receivables or to realize upon any other Collateral Supporting Assets or any other property or collateral, or to obtain performance or observance of the Guaranteed Obligations from the Covered Entities or the SellerEntities, the Canadian Guarantor SPE or any other Person, (iii) the any waiver, consent, amendment, modification, extension, forbearance or granting of any indulgence by the Administrative Agent any Secured Party (or by the Seller or Canadian GuarantorSPE) with respect to any provision of any agreement or instrument evidencing the Guaranteed Obligations, (iv) any change of the time, manner or place of performance of, or in any other term of any of the Guaranteed Obligations, including, without limitation, any amendment to or modification of any of the Transaction Documents, (v) any law, rule, regulation or order of any jurisdiction affecting any term or provision of any of the Guaranteed Obligations, or rights of the Administrative Agent Secured Parties (or of the Seller or Canadian GuarantorSPE) with respect thereto, (vi) the failure by the Administrative Agent any Secured Party (or by the Seller or Canadian GuarantorSPE) to take any steps to perfect and maintain perfected its interest in any Collateral Supporting Assets or other property or in any security or collateral related to the Guaranteed Obligations, (vii) any failure to obtain any consent, authorization or approval from or other action by or to notify or file with, any Governmental Authority Official Body required in connection with the performance of the obligations hereunder by the Performance Guarantor, (viii) any impossibility or impracticability of performance, illegality, force majeure, any act of government, or other circumstances which might constitute a defense available to, or a discharge of any Covered Entity or the Performance GuarantorEntity, or any other circumstance, event or happening whatsoever whether foreseen or unforeseen and whether similar to or dissimilar to anything referred to above, (ix) any manner of application of Collateral Supporting Assets or any other assets of any Covered Entity or of the Seller or Canadian GuarantorSPE, or proceeds thereof, to satisfy all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents and (x) any change, restructuring or termination of the corporate structure or existence of any Covered Entity, the Seller, Canadian Guarantor SPE or the Performance Guarantor or any other Person or the equity ownership, existence, control, merger, consolidation or sale, lease or transfer of any of the assets of any such Person, or any bankruptcy, insolvency, winding up, dissolution, liquidation, receivership, assignment for the benefit of creditors, arrangement, composition, readjustment or reorganization of, or similar proceedings affecting, any Covered Entity, the Seller the Canadian Guarantor SPE, or any of their assets or obligations. The Performance Guarantor waives all set-offs and counterclaims (other than compulsory counterclaim) and all presentments, demands of performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices of acceptance of this Performance Guaranty. The Performance Guarantor’s obligations under this Performance Guaranty shall not be limited if the Administrative Agent (on behalf of the any Secured Parties) Party is precluded for any reason (including, without limitation, the application of the automatic stay to a Covered Entity under Section 362 of the Bankruptcy Code) from enforcing or exercising any right or remedy with respect to the Guaranteed Obligations, and the Performance Guarantor shall perform or observe, upon demand, the Guaranteed Obligations that would otherwise have been due and performable or observable by any Covered Entity had such right and remedies been permitted to be exercised. (b) Should any money due or owing under this Performance Guaranty not be recoverable from the Performance Guarantor due to any of the matters specified in this Section 2, then, in any such case, such money shall nevertheless be recoverable from the Performance Guarantor as though the Performance Guarantor were a principal debtor in respect thereof and not merely a Performance Guarantor guarantor and shall be paid by the Performance Guarantor forthwith. The Performance Guarantor further agrees that, to the extent that any Covered Entity, the SPE or any other Person makes a payment or payments to any Secured Party in respect of any Guaranteed Obligation, which payment or payments or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to such Covered Entity, the SPE or other Person, as applicable, or to the estate, trustee, or receiver of any Covered Entity, the SPE, Person or any other party, including, without limitation, the Performance Guarantor, under any bankruptcy, insolvency or similar state or federal law, common law or equitable cause, then, to the extent of such payment or repayment, the Guaranteed Obligations or any part thereof which has been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the date such initial payment, reduction or satisfaction occurred.

Appears in 1 contract

Samples: Performance Guaranty (Labcorp Holdings Inc.)

Validity of Obligations. (a) The Each Performance Guarantor agrees that its obligations under this Performance Guaranty are Agreement shall be absolute and unconditional, irrespective of: of (i) the validity, enforceability, avoidancedisaffirmance, subordination, discharge, settlement or disaffirmance compromise (by any Person (other than one of the Guaranteed Parties, including a trustee in bankruptcy or insolvency practitionerbankruptcy) of the Guaranteed ObligationsObligations due to the inability of a Guarantee Party to pay or perform such obligation, (ii) the absence of any attempt by the Administrative Agent (or by the Seller or Canadian Guarantor) to collect on any Pool Receivables or to realize upon any other Collateral or any other property or collateral, or to obtain performance or observance of the Guaranteed Obligations from the Covered Entities or the Seller, the Canadian Guarantor or any other Persona Guarantee Party, (iii) the waiver, consent, amendment, modification, extension, forbearance or granting of any indulgence by the Administrative Agent (or by the Seller or Canadian Guarantor) with respect to any provision of any agreement or instrument evidencing the Guaranteed Obligations, (iv) any change of the time, manner or place of performance ofor payment, or in any other term of any of the Guaranteed Obligations, including, without limitation, any amendment to or modification of any of the Transaction Documents, (viv) any law, rule, regulation or order of any jurisdiction affecting any term or provision terms of any of the Guaranteed Obligations, or rights of the Administrative Agent (or of the Seller or Canadian Guarantor) with respect thereto, (vi) the failure by the Administrative Agent (or by the Seller or Canadian Guarantor) to take any steps to perfect and maintain perfected its interest in any Collateral or other property or in any security or collateral related to the Guaranteed Obligations, (vii) any failure to obtain any consent, authorization or approval from or other action by or to notify or file with, any Governmental Authority required in connection with the performance of the obligations hereunder by the Performance Guarantor, (viii) any impossibility or impracticability of performance, illegality, force majeure, any act of government, or other circumstances which might constitute a defense available to, or a discharge of any Covered Entity or the Performance Guarantor, or any other circumstance, event or happening whatsoever whether foreseen or unforeseen and whether similar to or dissimilar to anything referred to above, (ix) any manner of application of Collateral or any other assets of any Covered Entity or of the Seller or Canadian Guarantor, or proceeds thereof, to satisfy all or any of the Guaranteed Obligations or as otherwise permitted under rights of the Transaction DocumentsGuaranteed Parties with respect hereto due to the inability of a Guarantee Party to pay or perform such obligation (including any estimation, reduction or any manner of sale or other disposition of any collateral for all or any valuation of the Guaranteed Obligations made in connection with any proceedings involving a Guarantee Party or as otherwise permitted either Performance Guarantor filed under the Transaction Documents and (x) any changeFederal Bankruptcy Code, restructuring or termination whether pursuant to Section 502 of the corporate structure or existence of any Covered Entity, the Seller, Canadian Guarantor or the Performance Guarantor Federal Bankruptcy Code or any other Person Section thereof), and (v) any other circumstance that would otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Performance Guarantor further agrees that, to the equity ownershipextent that a Guarantee Party on its own behalf pursuant to the Related Documents, existence, control, merger, consolidation makes a payment or sale, lease or transfer of any payments to the Guaranteed Parties in respect of the assets of any such Person, Guaranteed Obligations which payment or payments or any bankruptcypart thereof are subsequently invalidated, insolvencydeclared to be fraudulent or preferential, winding upset aside or required to be repaid to its estate, dissolutiontrustee, liquidationreceiver or any other party, receivershipunder any bankruptcy law, assignment for state or federal law, common law or equitable cause, then to the benefit extent of creditors, arrangement, composition, readjustment such payment or reorganization of, or similar proceedings affecting, any Covered Entityrepayment, the Seller Guaranteed Obligations or part thereof that has been paid, reduced or satisfied by such amount shall be reinstated and continue in full force and effect as of the Canadian Guarantor date such initial payment, reduction or any of their assets or obligationssatisfaction occurred. The Each Performance Guarantor waives all set-offs and counterclaims and all presentments, demands of for performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices notices. After all of acceptance the Guaranteed Obligations have been performed or satisfied in full, the relevant Performance Guarantor shall be subrogated to the rights and remedies of this the Guaranteed Parties with respect to any Guarantee Party. Each Performance Guaranty. The Performance Guarantor’s Guarantor agrees that its obligations under this Performance Guaranty shall not be limited if the Administrative Agent (on behalf of the Secured Parties) is precluded for any reason (including, without limitation, the application of the automatic stay to a Covered Entity under Section 362 of the Bankruptcy Code) from enforcing or exercising any right or remedy with respect to the Guaranteed Obligations, and the Performance Guarantor shall perform or observe, upon demand, the Guaranteed Obligations that would otherwise have been due and performable or observable by any Covered Entity had such right and remedies been permitted to be exercisedirrevocable. (b) Should any money due or owing under this Performance Guaranty not be recoverable from the Performance Guarantor due to any of the matters specified in this Section 2, then, in any such case, such money shall nevertheless be recoverable from the Performance Guarantor as though the Performance Guarantor were principal debtor in respect thereof and not merely a Performance Guarantor and shall be paid by the Performance Guarantor forthwith.

Appears in 1 contract

Samples: Performance Guaranty (T-Mobile US, Inc.)

Validity of Obligations. (a) The Performance Guarantor agrees that its obligations under this Performance Guaranty are shall be absolute and unconditional, irrespective of: of (ia) the validity, enforceability, avoidance, subordination, discharge, or disaffirmance by any Person (including a trustee in bankruptcy or insolvency practitionerbankruptcy) of the Guaranteed Obligations, (iib) the absence of any attempt by the Administrative Agent (or by the Seller or Canadian Guarantor) to collect on any Pool Receivables or to realize upon any other Collateral or any other property or collateralSecured Party to collect any Receivables, or to obtain performance or observance of the Guaranteed Obligations from the Covered Entities any applicable Originator or the Seller, the Canadian Guarantor Sub-Servicer or any other Person, (iiic) the waiver, consent, amendment, modification, extension, forbearance or granting of any indulgence by the Administrative Agent (or by the Seller or Canadian Guarantor) with respect to any provision of any agreement or instrument evidencing the Guaranteed Obligations, (ivd) any change of the time, manner or place of performance of, or in any other term of any of the Guaranteed Obligations, including, without limitation, any amendment to or modification of any of the Transaction Documents, (ve) any law, rule, regulation or order of any jurisdiction affecting any term or provision of any of the Guaranteed Obligations, or rights of the Administrative Agent (or of the Seller or Canadian Guarantor) any other Secured Party with respect thereto, (vif) the failure by the Administrative Agent (or by the Seller or Canadian Guarantor) any other Secured Party to take any steps to perfect and maintain perfected its interest in any Collateral Receivable or other property or in any security or collateral related to the Guaranteed Obligations, (viig) any failure to obtain any consent, authorization or approval from or other action by or to notify or file with, any Governmental Authority or regulatory body required in connection with the performance of the obligations hereunder by the Performance Guarantor, Guarantor or (viiih) any impossibility or impracticability of performance, illegality, force majeure, any act of government, or other circumstances which might constitute a defense available to, or a discharge of any Covered Entity Originator or Sub-Servicer or the Performance Guarantor, or any other circumstance, event or happening whatsoever whether foreseen or unforeseen and whether similar to or dissimilar to anything referred to above, (ix) any manner which might constitute a legal or equitable discharge of application of Collateral a surety or any other assets of any Covered Entity or of the Seller or Canadian Guarantor, or proceeds thereof, to satisfy all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents and (x) any change, restructuring or termination of the corporate structure or existence of any Covered Entity, the Seller, Canadian Guarantor or the Performance Guarantor or any other Person or the equity ownership, existence, control, merger, consolidation or sale, lease or transfer of any of the assets of any such Person, or any bankruptcy, insolvency, winding up, dissolution, liquidation, receivership, assignment for the benefit of creditors, arrangement, composition, readjustment or reorganization of, or similar proceedings affecting, any Covered Entity, the Seller the Canadian Guarantor or any of their assets or obligationsguarantor. The Performance Guarantor waives all set-offs and counterclaims and all presentments, demands of performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices of acceptance of this Performance Guaranty. The Performance Guarantor’s obligations under this Performance Guaranty shall not be limited if the Administrative Agent (on behalf of the or any other Secured Parties) Party is precluded for any reason (including, without limitation, the application of the automatic stay to a Covered Entity under Section 362 of the Bankruptcy Code) from enforcing or exercising any right or remedy with respect to the Guaranteed Obligations, and the Performance Guarantor shall perform or observe, upon demand, the Guaranteed Obligations that would otherwise have been due and performable or observable by any Covered Entity Originator or Sub-Servicer had such right and remedies been permitted to be exercised. (b) Should any money due or owing under this Performance Guaranty not be recoverable from the Performance Guarantor due to any of the matters specified in this Section 2, then, in any such case, such money shall nevertheless be recoverable from the Performance Guarantor as though the Performance Guarantor were principal debtor in respect thereof and not merely a Performance Guarantor and shall be paid by the Performance Guarantor forthwith.

Appears in 1 contract

Samples: Performance Guaranty (Sylvamo Corp)

Validity of Obligations. (a) The Performance Guarantor agrees that its obligations under this Performance Guaranty are absolute and unconditional, irrespective of: (i) the validity, enforceability, avoidance, subordination, discharge, or disaffirmance by any Person (including a trustee in bankruptcy or insolvency practitioner) of the Guaranteed Obligations, (ii) the absence of any attempt by the Administrative Agent any Secured Party (or by the Seller or Canadian GuarantorSPV) to collect on any Pool Receivables or to realize upon any other Collateral or any other property or collateral, or to obtain performance or observance of the Guaranteed Obligations from the Covered Entities or the Seller, the Canadian Guarantor SPV or any other Person, (iii) the waiver, consent, amendment, modification, extension, forbearance or granting of any indulgence by the Administrative Agent any Secured Party (or by the Seller or Canadian GuarantorSPV) with respect to any provision of any agreement or instrument evidencing the Guaranteed Obligations, (iv) any change of the time, manner or place of performance of, or in any other term of any of the Guaranteed Obligations, including, without limitation, any amendment to or modification of any of the Transaction Loan Documents, (v) any law, rule, regulation or order of any jurisdiction affecting any term or provision of any of the Guaranteed Obligations, or rights of the Administrative Agent Secured Parties (or of the Seller or Canadian GuarantorSPV) with respect thereto, (vi) the failure by the Administrative Agent any Secured Party (or by the Seller or Canadian GuarantorSPV) to take any steps to perfect and maintain perfected its interest in any Collateral or other property or in any security or collateral related to the Guaranteed Obligations, (vii) any failure to obtain any consent, authorization or approval from or other action by or to notify or file with, any Governmental Authority required in connection with the performance of the obligations hereunder by the Performance Guarantor, (viii) any impossibility or impracticability of performance, illegality, force majeure, any act of government, or other circumstances which might constitute a defense available to, or a discharge of any Covered Entity or the Performance Guarantor, or any other circumstance, event or happening whatsoever whether foreseen or unforeseen and whether similar to or dissimilar to anything referred to above, (ix) any manner of application of Collateral or any other assets of any Covered Entity or of the Seller or Canadian GuarantorSPV, or proceeds thereof, to satisfy all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Loan Documents, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Loan Documents and (x) any change, restructuring or termination of the corporate structure or existence of any Covered Entity, the Seller, Canadian Guarantor SPV or the Performance Guarantor or any other Person or the equity ownership, existence, control, merger, consolidation or sale, lease or transfer of any of the assets of any such Person, or any bankruptcy, insolvency, winding up, dissolution, liquidation, receivership, assignment for the benefit of creditors, arrangement, composition, readjustment or reorganization of, or similar proceedings affecting, any Covered Entity, the Seller the Canadian Guarantor SPV or any of their assets or obligations. The Performance Guarantor waives all set-offs and counterclaims and all presentments, demands of performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices of acceptance of this Performance Guaranty. The Performance Guarantor’s obligations under this Performance Guaranty shall not be limited if the Administrative Agent (on behalf of the any Secured Parties) Party is precluded for any reason (including, without limitation, the application of the automatic stay to a Covered Entity under Section 362 of the Bankruptcy Code) from enforcing or exercising any right or remedy with respect to the Guaranteed Obligations, and the Performance Guarantor shall perform or observe, upon demand, the Guaranteed Obligations that would otherwise have been due and performable or observable by any Covered Entity had such right and remedies been permitted to be exercised. (b) Should any money due or owing under this Performance Guaranty not be recoverable from the Performance Guarantor due to any of the matters specified in this Section 2, then, in any such case, such money shall nevertheless be recoverable from the Performance Guarantor as though the Performance Guarantor were principal debtor in respect thereof and not merely a Performance Guarantor and shall be paid by the Performance Guarantor forthwith. The Performance Guarantor further agrees that, to the extent that any Covered Entity, the SPV or any other Person makes a payment or payments to any Secured Party in respect of any Guaranteed Obligation, which payment or payments or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to such Covered Entity, the SPV or other Person, as applicable, or to the estate, trustee, or receiver of any Covered Entity, the SPV, Person or any other party, including, without limitation, the Performance Guarantor, under any bankruptcy, insolvency or similar state or federal law, common law or equitable cause, then, to the extent of such payment or repayment, the Guaranteed Obligations or any part thereof which has been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the date such initial payment, reduction or satisfaction occurred.

Appears in 1 contract

Samples: Performance Guaranty (Mallinckrodt PLC)

Validity of Obligations. (a) The Performance Guarantor Each Originator jointly and severally agrees that its obligations under this Performance Guaranty are absolute and unconditional, irrespective of: (i) the validity, enforceability, avoidance, subordination, discharge, or disaffirmance by any Person (including a trustee in bankruptcy or insolvency practitioner) of the Guaranteed Obligations, (ii) the absence of any attempt by the Administrative Agent any Secured Party (or by the Seller or Canadian GuarantorSPV) to collect on any Pool Receivables or to realize upon any other Collateral or any other property or collateral, or to obtain performance or observance of the Guaranteed Obligations from the Covered Entities Originators or the Seller, the Canadian Guarantor SPV or any other Person, (iii) the waiver, consent, amendment, modification, extension, forbearance or granting of any indulgence by the Administrative Agent any Secured Party (or by the Seller or Canadian GuarantorSPV) with respect to any provision of any agreement or instrument evidencing the Guaranteed Obligations, (iv) any change of the time, manner or place of performance of, or in any other term of any of the Guaranteed Obligations, including, without limitation, any amendment to or modification of any of the Transaction Loan Documents, (v) any law, rule, regulation or order of any jurisdiction affecting any term or provision of any of the Guaranteed Obligations, or rights of the Administrative Agent Secured Parties (or of the Seller or Canadian GuarantorSPV) with respect thereto, (vi) the failure by the Administrative Agent any Secured Party (or by the Seller or Canadian GuarantorSPV) to take any steps to perfect and maintain perfected its interest in any Collateral or other property or in any security or collateral related to the Guaranteed Obligations, (vii) any failure to obtain any consent, authorization or approval from or other action by or to notify or file with, any Governmental Authority required in connection with the performance of the obligations hereunder by the Performance Guarantoreach Originator, (viii) any impossibility or impracticability of performance, illegality, force majeure, any act of government, or other circumstances which might constitute a defense available to, or a discharge of any Covered Entity Originator or the Performance Guarantoreach Originator, or any other circumstance, event or happening whatsoever whether foreseen or unforeseen and whether similar to or dissimilar to anything referred to above, (ix) any manner of application of Collateral or any other assets of any Covered Entity Originator or of the Seller or Canadian GuarantorSPV, or proceeds thereof, to satisfy all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Loan Documents, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Loan Documents and (x) any change, restructuring or termination of the corporate structure or existence of any Covered EntityOriginator, the Seller, Canadian Guarantor SPV or the Performance Guarantor each Originator or any other Person or the equity ownership, existence, control, merger, consolidation or sale, lease or transfer of any of the assets of any such Person, or any bankruptcy, insolvency, winding up, dissolution, liquidation, receivership, assignment for the benefit of creditors, arrangement, composition, readjustment or reorganization of, or similar proceedings affecting, any Covered EntityOriginator, the Seller the Canadian Guarantor SPV or any of their assets or obligations. The Performance Guarantor Each Originator waives all set-offs and counterclaims and all presentments, demands of performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices of acceptance of this Performance Guaranty. The Performance GuarantorEach Originator’s obligations under this Performance Guaranty shall not be limited if the Administrative Agent (on behalf of the any Secured Parties) Party is precluded for any reason (including, without limitation, the application of the automatic stay to a Covered Entity Originator under Section 362 of the Bankruptcy Code) from enforcing or exercising any right or remedy with respect to the Guaranteed Obligations, and the Performance Guarantor each Originator shall perform or observe, upon demand, the Guaranteed Obligations that would otherwise have been due and performable or observable by any Covered Entity Originator had such right and remedies been permitted to be exercised. (b) Should any money due or owing under this Performance Guaranty not be recoverable from the Performance Guarantor each Originator due to any of the matters specified in this Section 2, then, in any such case, such money shall nevertheless be recoverable from the Performance Guarantor each Originator as though each Originator were the Performance Guarantor were principal debtor in respect thereof and not merely a Performance Guarantor and shall be paid by each Originator forthwith. Each Originator further agrees that, to the Performance Guarantor forthwithextent that any Covered Originator, the SPV or any other Person makes a payment or payments to any Secured Party in respect of any Guaranteed Obligation, which payment or payments or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to such Covered Originator, the SPV or other Person, as applicable, or to the estate, trustee, or receiver of any Covered Originator, the SPV, Person or any other party, including, without limitation, each Originator, under any bankruptcy, insolvency or similar state or federal law, common law or equitable cause, then, to the extent of such payment or repayment, the Guaranteed Obligations or any part thereof which has been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the date such initial payment, reduction or satisfaction occurred.

Appears in 1 contract

Samples: Originator Performance Guaranty (Mallinckrodt PLC)

Validity of Obligations. (a) The Performance Guarantor agrees that its obligations under this Performance Guaranty are shall be absolute and unconditional, irrespective of: of (i) the validity, enforceability, avoidance, subordination, discharge, or disaffirmance by any Person (including a trustee in bankruptcy or insolvency practitionerbankruptcy) of the Guaranteed Obligations, (ii) the absence of any attempt by the Administrative Agent (Administrator, any Purchaser Agent, any Purchaser or by the Seller or Canadian Guarantor) SPV to collect on any Pool Receivables or to realize upon any other Collateral or any other property or collateralReceivables, or to obtain performance or observance of the Guaranteed Obligations from the any Covered Entities or the Seller, the Canadian Guarantor Subsidiary or any other Person, (iii) the waiver, consent, amendment, modification, extension, forbearance or granting of any indulgence by the Administrative Agent (Administrator, any Purchaser Agent, any Purchaser or by the Seller or Canadian Guarantor) SPV with respect to any provision of any agreement or instrument evidencing the Guaranteed Obligations, (iv) any change of the time, manner or place of performance of, or in any other term or provision of any of the Guaranteed Obligations, including, without limitation, any amendment to or modification of any of the Transaction Documents, (v) any law, rule, regulation or order of any jurisdiction affecting any term or provision of any of the Guaranteed Obligations, or rights of the Administrative Agent (Administrator, any Purchaser Agent, any Purchaser or of the Seller or Canadian Guarantor) SPV with respect thereto, (vi) the failure by the Administrative Agent (Administrator, any Purchaser Agent, any Purchaser or by the Seller or Canadian Guarantor) SPV to take any steps to perfect and maintain perfected its interest in any Collateral Receivable or other property or in any security or collateral related to the Guaranteed Obligations, (vii) any failure to obtain any consent, authorization or approval from or other action by or to notify or file with, any Governmental Authority governmental authority or regulatory body required in connection with the performance of the obligations hereunder by the Performance Guarantor, (viii) any impossibility or impracticability of performance, illegality, force majeure, any act of government, or other circumstances which might constitute a defense available to, or a discharge of any Covered Entity Subsidiary, the SPV or the Performance Guarantor, or any other circumstance, event or happening whatsoever whether foreseen or unforeseen and whether similar to or dissimilar to anything referred to above, (ix) any manner of application of Collateral collateral or any other assets of any Covered Entity Subsidiary or of the Seller or Canadian GuarantorSPV, or proceeds thereof, to satisfy all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents Documents, and (x) any change, restructuring or termination of the corporate structure or existence of any Covered EntitySubsidiary, the SellerSPV, Canadian Guarantor or the Performance Guarantor or any other Person or the equity ownership, existence, control, merger, consolidation or sale, lease or transfer of any of the assets of any such Person, or any bankruptcy, insolvency, winding up, dissolution, liquidation, receivership, assignment for the benefit of creditors, arrangement, composition, readjustment or reorganization of, or similar proceedings affecting, any Covered EntitySubsidiary, the Seller the Canadian Guarantor SPV or any of their assets or obligations. The Performance Guarantor waives all set-offs and counterclaims and all presentments, demands of performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices of acceptance of this Performance Guaranty. The Performance Guarantor’s obligations under this Performance Guaranty shall not be limited if the Administrative Administrator, any Purchaser Agent (on behalf of the Secured Parties) or any Purchaser is precluded for any reason (including, without limitation, the application of the automatic stay to a Covered Entity under Section 362 of the Bankruptcy Code) from enforcing or exercising any right or remedy with respect to the Guaranteed Obligations, and the Performance Guarantor shall perform or observe, upon demand, the Guaranteed Obligations that would could otherwise have been due and performable or observable by any Covered Entity Subsidiary had such right and remedies been permitted to be exercised. (b) Should any money due or owing under this Performance Guaranty not be recoverable from the Performance Guarantor due to any of the matters specified above in this Section 22(a), then, in any such case, such money shall nevertheless be recoverable from the Performance Guarantor as though the Performance Guarantor were principal debtor in respect thereof and not merely a Performance Guarantor guarantor and shall be paid by the Performance Guarantor forthwith.

Appears in 1 contract

Samples: Performance Guaranty (Celanese Corp)

Validity of Obligations. (a) The Performance Guarantor agrees that its obligations under this Performance Guaranty are absolute and unconditionalunconditional and shall not be subject to any limitation, impairment or discharge for any reason (other than payment in full of all Guaranteed Obligations), irrespective of: (i) the validity, enforceability, avoidance, subordination, discharge, or disaffirmance by any Person (including a trustee in bankruptcy or insolvency practitionerbankruptcy) of the Guaranteed Obligations, (ii) the absence of any attempt by the Administrative Agent any Secured Party (or by the Seller or Canadian GuarantorSeller) to collect on any Pool Receivables or to realize upon any other Seller Collateral or any other property or collateral, or to obtain performance or observance of the Guaranteed Obligations from the Covered Entities or the Seller, the Canadian Guarantor Seller or any other Person, (iii) the waiver, consent, amendment, modification, extension, forbearance or granting of any indulgence by the Administrative Agent any Secured Party (or by the Seller or Canadian GuarantorSeller) with respect to any provision of any agreement or instrument evidencing the Guaranteed Obligations, (iv) any change of the time, manner or place of performance of, or in any other term of any of the Guaranteed Obligations, including, without limitation, any amendment to or modification of any of the Transaction Documents, (v) any law, rule, regulation or order of any jurisdiction affecting any term or provision of any of the Guaranteed Obligations, or rights of the Administrative Agent Secured Parties (or of the Seller or Canadian GuarantorSeller) with respect thereto, (vi) the failure by the Administrative Agent any Secured Party (or by the Seller or Canadian GuarantorSeller) to take any steps to perfect and maintain perfected its interest in any Seller Collateral or other property or in any security or collateral related to the Guaranteed Obligations, (vii) any failure to obtain any consent, authorization or approval from or other action by by, or to notify or file with, any Governmental Authority required in connection with the performance of the obligations hereunder by the Performance Guarantor, (viii) any impossibility or impracticability of performance, illegality, force majeure, any act of government, or other circumstances which might constitute a defense available to, or a discharge of any Covered Entity or the Performance Guarantor, or any other circumstance, event or happening whatsoever whether foreseen or unforeseen and whether similar to or dissimilar to anything referred to above, (ix) any manner of application of Collateral or any other assets of any Covered Entity or of the Seller or Canadian GuarantorSeller, or proceeds thereof, to satisfy all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents and Documents, and (x) any change, restructuring or termination of the corporate structure or existence of any Covered Entity, the Seller, Canadian Guarantor Seller or the Performance Guarantor or any other Person or the equity ownership, existence, control, merger, consolidation or sale, lease or transfer of any of the assets of any such Person, or any bankruptcy, insolvency, winding up, dissolution, liquidation, receivership, assignment for the benefit of creditors, arrangement, composition, readjustment or reorganization of, or similar proceedings affecting, any Covered Entity, the Seller the Canadian Guarantor or any of their assets or obligations. The Performance Guarantor waives waives, to the extent permitted by Applicable Law, all set-offs and counterclaims and all presentments, demands of performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices of acceptance of this Performance Guaranty. The Performance Guarantor’s obligations under this Performance Guaranty shall not be limited if the Administrative Agent (on behalf of the any Secured Parties) Party is precluded for any reason (including, without limitation, the application of the automatic stay to a Covered Entity under Section 362 of the Bankruptcy Code) from enforcing or exercising any right or remedy with respect to the Guaranteed Obligations, and the Performance Guarantor shall perform or observe, upon demand, the Guaranteed Obligations that would otherwise have been due and performable or observable by any Covered Entity had such right and remedies been permitted to be exercised. (b) Should any money due or owing under this Performance Guaranty not be recoverable from the Performance Guarantor due to any of the matters specified in this Section 2, then, in any such case, such money shall nevertheless be recoverable from the Performance Guarantor as though the Performance Guarantor were principal debtor in respect thereof and not merely a Performance Guarantor and shall be paid by the Performance Guarantor forthwith. The Performance Guarantor further agrees that, to the extent that any Covered Entity, the Seller or any other Person makes a payment or payments to any Secured Party in respect of any Guaranteed Obligation, which payment or payments or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to such Covered Entity, the Seller or other Person, as applicable, or to the estate, trustee, or receiver of any Covered Entity, the Seller, Person or any other party, including, without limitation, the Performance Guarantor, under any bankruptcy, insolvency or similar state or federal law, common law or equitable cause, then, to the extent of such payment or repayment, the Guaranteed Obligations or any part thereof which has been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the date such initial payment, reduction or satisfaction occurred.

Appears in 1 contract

Samples: Performance Guaranty (Synchronoss Technologies Inc)

Validity of Obligations. (a) The Performance Guarantor agrees that its obligations under this Performance Guaranty are absolute and unconditionalunconditional and shall not be subject to any limitation, impairment or discharge for any reason (other than payment in full of all Guaranteed Obligations or written settlement between the Covered Parties and an Originator or the Servicer, as applicable), irrespective of: (i) the validity, enforceability, avoidance, subordination, discharge, or disaffirmance by any Person (including a trustee in bankruptcy or insolvency practitionerbankruptcy) of the Guaranteed Obligations, (ii) the absence of any attempt by the Administrative Agent any Secured Party (or by the Seller or Canadian GuarantorSeller) to collect on any Pool Receivables Sold Assets or to realize upon any other Seller Collateral or any other property or collateral, or to obtain performance or observance of the Guaranteed Obligations from the Covered Entities or the Seller, the Canadian Guarantor Seller or any other Person, (iii) the waiver, consent, amendment, modification, extension, forbearance or granting of any indulgence by the Administrative Agent any Secured Party (or by the Seller or Canadian GuarantorSeller) with respect to any provision of any agreement or instrument evidencing the Guaranteed ObligationsObligations other than a written settlement agreement as described above, (iv) any change of the time, manner or place of performance of, or in any other term of any of the Guaranteed Obligations, including, without limitation, subject to compliance with Section 8(b), any amendment to or modification of any of the Transaction Documents, (v) any law, rule, regulation or order of any jurisdiction affecting any term or provision of any of the Guaranteed Obligations, or rights of the Administrative Agent Secured Parties (or of the Seller or Canadian GuarantorSeller) with respect thereto, (vi) the failure by the Administrative Agent any Secured Party (or by the Seller or Canadian GuarantorSeller) to take any steps to perfect and maintain perfected its interest in any Seller Collateral or other property or in any security or collateral related to the Guaranteed Obligations, (vii) any failure to obtain any consent, authorization or approval from or other action by by, or to notify or file with, any Governmental Authority required in connection with the performance of the obligations hereunder by the Performance Guarantor, (viii) any impossibility or impracticability of performance, illegality, force majeure, any act of government, or other circumstances which might constitute a defense available to, or a discharge of any Covered Entity or the Performance Guarantor, or any other circumstance, event or happening whatsoever whether foreseen or unforeseen and whether similar to or dissimilar to anything referred to above, (ix) any manner of application of Collateral or any other assets of any Covered Entity or of the Seller or Canadian GuarantorEntity, or proceeds thereof, to satisfy all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents and Documents, (x) any change, restructuring or termination of the corporate structure or existence of any Covered Entity, the Seller, Canadian Guarantor Entity or the Performance Guarantor or any other Person or the equity ownership, existence, control, merger, consolidation or sale, lease or transfer of any of the assets of any such Person, or any bankruptcy, insolvency, winding up, dissolution, liquidation, receivership, assignment for the benefit of creditors, arrangement, composition, readjustment or reorganization of, or similar proceedings affecting, any Covered Entity, the Seller the Canadian Guarantor Entity or any of their assets or obligations. The Performance Guarantor waives all set-offs , and counterclaims and all presentments(xi) any failure to assert or enforce or agreement not to assert or enforce, demands or the stay or enjoining, by order of performancecourt, notices by operation of nonperformancelaw or otherwise, protestsof the exercise or enforcement of, notices of protestany claim or demand or any right, notices of dishonor and notices of acceptance of this Performance Guarantypower or remedy with respect to the Guaranteed Obligations or any agreement relating thereto. The Performance Guarantor’s obligations under this Performance Guaranty shall not be limited if the Administrative Agent (on behalf of the any Secured Parties) Party is precluded for any reason (including, without limitation, the application of the automatic stay to a Covered Entity under Section 362 of the Bankruptcy Code) from enforcing or exercising any right or remedy with respect to the Guaranteed Obligations, and the Performance Guarantor shall perform or observe, upon within ten (10) days after written demand, the Guaranteed Obligations that would otherwise have been due and performable or observable by any Covered Entity had such right and remedies been permitted to be exercised. (b) Should any money due or owing under this Performance Guaranty not be recoverable from the Performance Guarantor due to any of the matters specified in this Section 2, then, in any such case, such money shall nevertheless be recoverable from the Performance Guarantor as though the Performance Guarantor were principal debtor in respect thereof and not merely a Performance Guarantor and shall be paid by the Performance Guarantor forthwith.

Appears in 1 contract

Samples: Performance Guaranty (Warner Bros. Discovery, Inc.)

Validity of Obligations. (a) The Performance Guarantor agrees that its obligations under this Performance Guaranty are shall be absolute and unconditional, irrespective of: of (i) the validity, enforceability, avoidance, subordination, discharge, or disaffirmance by any Person (including a trustee in bankruptcy or insolvency practitionerbankruptcy) of the Guaranteed Obligations, (ii) the absence of any attempt by the Administrative Agent (Administrator, any Purchaser Agent, any Purchaser or by the Seller or Canadian Guarantor) SPV to collect on any Pool Receivables or to realize upon any other Collateral or any other property or collateralReceivables, or to obtain performance or observance of the Guaranteed Obligations from the Covered Entities or the Seller, the Canadian Guarantor OC Sales or any other Person, (iii) the waiver, consent, amendment, modification, extension, forbearance or granting of any indulgence by the Administrative Agent (Administrator, any Purchaser Agent, any Purchaser or by the Seller or Canadian Guarantor) SPV with respect to any provision of any agreement or instrument evidencing the Guaranteed Obligations, (iv) any change of the time, manner or place of performance of, or in any other term of any of the Guaranteed Obligations, including, without limitation, any amendment to or modification of any of the Transaction Documents, (v) any law, rule, regulation or order of any jurisdiction affecting any term or provision of any of the Guaranteed Obligations, or rights of the Administrative Agent (Administrator, any Purchaser Agent, any Purchaser or of the Seller or Canadian Guarantor) SPV with respect thereto, (vi) the failure by the Administrative Agent (Administrator, any Purchaser Agent, any Purchaser or by the Seller or Canadian Guarantor) SPV to take any steps to perfect and maintain perfected its interest in any Collateral Receivable or other property or in any security or collateral related to the Guaranteed Obligations, (vii) any failure to obtain any consent, authorization or approval from or other action by or to notify or file with, any Governmental Authority governmental authority or regulatory body required in connection with the performance of the obligations hereunder by the Performance Guarantor, (viii) any impossibility or impracticability of performance, illegality, force majeure, any act of government, or other circumstances which might constitute a defense default available to, or a discharge of any Covered Entity OC Sales, the SPV or the Performance Guarantor, or any other circumstance, event or happening whatsoever whether foreseen or unforeseen and whether similar to or dissimilar to anything referred to above, (ix) any manner of application of Collateral collateral or any other assets of any Covered Entity OC Sales or of the Seller or Canadian GuarantorSPV, or proceeds thereof, to satisfy all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents Documents, and (x) any change, restructuring or termination of the corporate structure or existence of any Covered EntityOC Sales, the SellerSPV, Canadian Guarantor or the Performance Guarantor or any other Person or the equity ownership, existence, control, merger, consolidation or sale, lease or transfer of any of the assets of any such Person, or any bankruptcy, insolvency, winding up, dissolution, liquidation, receivership, assignment for the benefit of creditors, arrangement, composition, readjustment or reorganization of, or similar proceedings affecting, any Covered EntityOC Sales, the Seller the Canadian Guarantor SPV or any of their assets or obligations. The Performance Guarantor waives all set-offs and counterclaims and all presentments, demands of performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices of acceptance of this Performance Guaranty. The Performance Guarantor’s obligations under this Performance Guaranty shall not be limited if the Administrative Administrator, any Purchaser Agent (on behalf of the Secured Parties) or any Purchaser is precluded for any reason (including, without limitation, the application of the automatic stay to a Covered Entity under Section 362 of the Bankruptcy Code) from enforcing or exercising any right or remedy with respect to the Guaranteed Obligations, and the Performance Guarantor shall perform or observe, upon demand, the Guaranteed Obligations that would otherwise have been due and performable or observable by any Covered Entity OC Sales had such right and remedies been permitted to be exercised. (b) Should any money due or owing under this Performance Guaranty not be recoverable from the Performance Guarantor due to any of the matters specified above in this Section 22(a), then, in any such case, such money shall nevertheless be recoverable from the Performance Guarantor as though the Performance Guarantor were principal debtor in respect thereof and not merely a Performance Guarantor guarantor and shall be paid by the Performance Guarantor forthwith. The Performance Guarantor further agrees that, to the extent that any Person makes a payment or payments to the Administrator, any Purchaser Agent or any Purchaser in respect of any Guaranteed Obligation, which payment or payments or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to such Person or to the estate, trustee, or receiver of such Person or to any other party, including, without limitation, the Performance Guarantor, under any bankruptcy, insolvency or similar state or federal law, common law or equitable cause, then, to the extent of such payment or repayment, the Guaranteed Obligations or any part thereof which has been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the date such initial payment, reduction or satisfaction occurred.

Appears in 1 contract

Samples: Performance Guaranty (Owens Corning)

Validity of Obligations. (a) The Performance Guarantor agrees that its obligations under this Performance Guaranty are absolute and unconditional, irrespective of: (i) the validity, enforceability, avoidance, subordination, discharge, or disaffirmance by any Person (including a trustee in bankruptcy or insolvency practitioner) of the Guaranteed Obligations, (ii) the absence of any attempt by the Administrative Agent any Secured Party (or by the Seller or Canadian GuarantorBorrower) to collect on any Pool Receivables or to realize upon any other Collateral or any other property or collateral, or to obtain performance or observance of the Guaranteed Obligations from the Covered Entities Entities, or the Seller, the Canadian Guarantor Borrower or any other Person, (iii) the any waiver, consent, amendment, modification, extension, forbearance or granting of any indulgence by the Administrative Agent any Secured Party (or by the Seller or Canadian GuarantorBorrower) with respect to any provision of any agreement or instrument evidencing the Guaranteed Obligations, (iv) any change of the time, manner or place of performance of, or in any other term of any of the Guaranteed Obligations, including, without limitation, any amendment to or modification of any of the Transaction Documents, (v) any law, rule, regulation or order of any jurisdiction affecting any term or provision of any of the Guaranteed Obligations, or rights of the Administrative Agent Secured Parties (or of the Seller or Canadian GuarantorBorrower) with respect thereto, (vi) the failure by the Administrative Agent any Secured Party (or by the Seller or Canadian GuarantorBorrower) to take any steps to perfect and maintain perfected its interest in any Collateral or other property or in any security or collateral related to the Guaranteed Obligations, (vii) any failure to obtain any consent, authorization or approval from or other action by or to notify or file with, any Governmental Authority required in connection with the performance of the obligations hereunder by the Performance Guarantor, (viii) any impossibility or impracticability of performance, illegality, force majeure, any act of government, or other circumstances which might constitute a defense available to, or a discharge of any Covered Entity or the Performance Guarantor, or any other circumstance, event or happening whatsoever whether foreseen or unforeseen and whether similar to or dissimilar to anything referred to above, (ix) any manner of application of Collateral or any other assets of any Covered Entity or of the Seller or Canadian GuarantorBorrower, or proceeds thereof, to satisfy all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents and (x) any change, restructuring or termination of the corporate structure or existence of any Covered Entity, the Seller, Canadian Guarantor Borrower or the Performance Guarantor or any other Person or the equity ownership, existence, control, merger, consolidation or sale, lease or transfer of any of the assets of any such Person, or any bankruptcy, insolvency, winding up, dissolution, liquidation, receivership, assignment for the benefit of creditors, arrangement, composition, readjustment or reorganization of, or similar proceedings affecting, any Covered Entity, the Seller the Canadian Guarantor Borrower or any of their assets or obligations. The Performance Guarantor waives all set-offs and counterclaims and all presentments, demands of performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices of acceptance of this Performance Guaranty. The Performance Guarantor’s obligations under this Performance Guaranty shall not be limited if the Administrative Agent (on behalf of the any Secured Parties) Party is precluded for any reason (including, without limitation, the application of the automatic stay to a Covered Entity under Section 362 of the Bankruptcy Code) from enforcing or exercising any right or remedy with respect to the Guaranteed Obligations, and the Performance Guarantor shall perform or observe, upon demand, the Guaranteed Obligations that would otherwise have been due and performable or observable by any Covered Entity had such right and remedies been permitted to be exercised. (b) Should any money due or owing under this Performance Guaranty not be recoverable from the Performance Guarantor due to any of the matters specified in this Section 2, then, in any such case, such money shall nevertheless be recoverable from the Performance Guarantor as though the Performance Guarantor were principal debtor in respect thereof and not merely a Performance Guarantor and shall be paid by the Performance Guarantor forthwith. The Performance Guarantor further agrees that, to the extent that any Covered Entity, the Borrower or any other Person makes a payment or payments to any Secured Party in respect of any Guaranteed Obligation, which payment or payments or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to such Covered Entity, the Borrower or other Person, as applicable, or to the estate, trustee, or receiver of any Covered Entity, the Borrower, Person or any other party, including, without limitation, the Performance Guarantor, under any bankruptcy, insolvency or similar state or federal law, common law or equitable cause, then, to the extent of such payment or repayment, the Guaranteed Obligations or any part thereof which has been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the date such initial payment, reduction or satisfaction occurred.

Appears in 1 contract

Samples: Performance Guaranty (Compass Minerals International Inc)

Validity of Obligations. (a) The Each Performance Guarantor agrees that its obligations under this Performance Guaranty are shall be absolute and unconditional, irrespective of: of (i) the validity, enforceability, avoidance, subordination, discharge, or disaffirmance by any Person (including a trustee in bankruptcy or insolvency practitionerbankruptcy) of the Guaranteed Obligations, (ii) the absence of any attempt by the Administrative Agent (Administrator or by the Seller or Canadian Guarantor) any Purchaser to collect on any Pool Receivables or to realize upon any other Collateral or any other property or collateralReceivables, or to obtain performance or observance of the Guaranteed Obligations from the Covered Entities or the SellerServicer, the Canadian Guarantor any applicable Originator or any other Person, (iii) the waiver, consent, amendment, modification, extension, forbearance or granting of any indulgence by the Administrative Agent (or by the Seller or Canadian Guarantor) Administrator with respect to any provision of any agreement or instrument evidencing the Guaranteed Obligations, (iv) any change of the time, manner or place of performance of, or in any other term of any of the Guaranteed Obligations, including, without limitation, any amendment to or modification of any of the Transaction Documents, (v) any law, rule, regulation or order of any jurisdiction affecting any term or provision of any of the Guaranteed Obligations, or rights of the Administrative Agent (Administrator or of the Seller or Canadian Guarantor) any Purchaser with respect thereto, (vi) the failure by the Administrative Agent (Administrator or by the Seller or Canadian Guarantor) any Purchaser to take any steps to perfect and maintain perfected its interest in any Collateral Receivable or other property or in any security or collateral related to the Guaranteed Obligations, (vii) any failure to obtain any consent, authorization or approval from or other action by or to notify or file with, any Governmental Authority governmental authority or regulatory body required in connection with the performance of the obligations hereunder by the either Performance Guarantor, Guarantor or (viii) any impossibility or impracticability of performance, illegality, force majeure, any act of government, or other circumstances which might constitute a defense default available to, or a discharge of the Servicer, any Covered Entity Originator or the either Performance Guarantor, or any other circumstance, event or happening whatsoever whether foreseen or unforeseen and whether similar to or dissimilar to anything referred to above, (ix) any manner of application of Collateral or any other assets of any Covered Entity or of the Seller or Canadian Guarantor, or proceeds thereof, to satisfy all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents and (x) any change, restructuring or termination of the corporate structure or existence of any Covered Entity, the Seller, Canadian Guarantor or the Performance Guarantor or any other Person or the equity ownership, existence, control, merger, consolidation or sale, lease or transfer of any of the assets of any such Person, or any bankruptcy, insolvency, winding up, dissolution, liquidation, receivership, assignment for the benefit of creditors, arrangement, composition, readjustment or reorganization of, or similar proceedings affecting, any Covered Entity, the Seller the Canadian Guarantor or any of their assets or obligations. The Each Performance Guarantor waives all set-offs and counterclaims and all presentments, demands of performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices of acceptance of this Performance Guaranty. The Each Performance Guarantor’s obligations under this Performance Guaranty shall not be limited if the Administrative Agent (on behalf of the Secured Parties) Administrator or any Purchaser is precluded for any reason (including, without limitation, the application of the automatic stay to a Covered Entity under Section 362 of the Bankruptcy Code) from enforcing or exercising any right or remedy with respect to the Guaranteed Obligations, and the each Performance Guarantor shall perform or observe, upon demand, the Guaranteed Obligations that would otherwise have been due and performable or observable by any Covered Entity the Servicer and/or the applicable Originator had such right and remedies been permitted to be exercised. (b) Should any money due or owing under this Performance Guaranty not be recoverable from the Performance Guarantor due to any of the matters specified in this Section 2, then, in any such case, such money shall nevertheless be recoverable from the Performance Guarantor as though the Performance Guarantor were principal debtor in respect thereof and not merely a Performance Guarantor and shall be paid by the Performance Guarantor forthwith.

Appears in 1 contract

Samples: Performance Guaranty (Fleetcor Technologies Inc)

Validity of Obligations. (a) The Each Performance Guarantor agrees that its obligations under this Performance Guaranty are Agreement shall be absolute and unconditional, irrespective of: of (i) the validity, enforceability, avoidancedisaffirmance, subordination, discharge, settlement or disaffirmance compromise (by any Person (other than one of the Guaranteed Parties, including a trustee in bankruptcy or insolvency practitionerbankruptcy) of the Guaranteed ObligationsObligations due to the inability of a Guarantee Party to pay or perform such obligation, (ii) the absence of any attempt by the Administrative Agent (or by the Seller or Canadian Guarantor) to collect on any Pool Receivables or to realize upon any other Collateral or any other property or collateral, or to obtain performance or observance of the Guaranteed Obligations from the Covered Entities or the Seller, the Canadian Guarantor or any other Persona Guarantee Party, (iii) the waiver, consent, amendment, modification, extension, forbearance or granting of any indulgence by the Administrative Agent (or by the Seller or Canadian Guarantor) with respect to any provision of any agreement or instrument evidencing the Guaranteed Obligations, (iv) any change of the time, manner or place of performance ofor payment, or in any other term of any of the Guaranteed Obligations, including, without limitation, any amendment to or modification of any of the Transaction Documents, (viv) any law, rule, regulation or order of any jurisdiction affecting any term or provision terms of any of the Guaranteed Obligations, or rights of the Administrative Agent (or of the Seller or Canadian Guarantor) with respect thereto, (vi) the failure by the Administrative Agent (or by the Seller or Canadian Guarantor) to take any steps to perfect and maintain perfected its interest in any Collateral or other property or in any security or collateral related to the Guaranteed Obligations, (vii) any failure to obtain any consent, authorization or approval from or other action by or to notify or file with, any Governmental Authority required in connection with the performance of the obligations hereunder by the Performance Guarantor, (viii) any impossibility or impracticability of performance, illegality, force majeure, any act of government, or other circumstances which might constitute a defense available to, or a discharge of any Covered Entity or the Performance Guarantor, or any other circumstance, event or happening whatsoever whether foreseen or unforeseen and whether similar to or dissimilar to anything referred to above, (ix) any manner of application of Collateral or any other assets of any Covered Entity or of the Seller or Canadian Guarantor, or proceeds thereof, to satisfy all or any of the Guaranteed Obligations or as otherwise permitted under rights of the Transaction DocumentsGuaranteed Parties with respect hereto due to the inability of a Guarantee Party to pay or perform such obligation (including any estimation, reduction or any manner of sale or other disposition of any collateral for all or any valuation of the Guaranteed Obligations made in connection with any proceedings involving a Guarantee Party or as otherwise permitted either Performance Guarantor filed under the Transaction Documents and (x) any changeFederal Bankruptcy Code, restructuring or termination whether pursuant to Section 502 of the corporate structure or existence of any Covered Entity, the Seller, Canadian Guarantor or the Performance Guarantor 740342937 Federal Bankruptcy Code or any other Person Section thereof), and (v) any other circumstance that would otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Performance Guarantor further agrees that, to the equity ownershipextent that a Guarantee Party on its own behalf pursuant to the Related Documents, existence, control, merger, consolidation makes a payment or sale, lease or transfer of any payments to the Guaranteed Parties in respect of the assets of any such Person, Guaranteed Obligations which payment or payments or any bankruptcypart thereof are subsequently invalidated, insolvencydeclared to be fraudulent or preferential, winding upset aside or required to be repaid to its estate, dissolutiontrustee, liquidationreceiver or any other party, receivershipunder any bankruptcy law, assignment for state or federal law, common law or equitable cause, then to the benefit extent of creditors, arrangement, composition, readjustment such payment or reorganization of, or similar proceedings affecting, any Covered Entityrepayment, the Seller Guaranteed Obligations or part thereof that has been paid, reduced or satisfied by such amount shall be reinstated and continue in full force and effect as of the Canadian Guarantor date such initial payment, reduction or any of their assets or obligationssatisfaction occurred. The Each Performance Guarantor waives all set-offs and counterclaims and all presentments, demands of for performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices notices. After all of acceptance the Guaranteed Obligations have been performed or satisfied in full, the relevant Performance Guarantor shall be subrogated to the rights and remedies of this the Guaranteed Parties with respect to any Guarantee Party. Each Performance Guaranty. The Performance Guarantor’s Guarantor agrees that its obligations under this Performance Guaranty shall not be limited if the Administrative Agent (on behalf of the Secured Parties) is precluded for any reason (including, without limitation, the application of the automatic stay to a Covered Entity under Section 362 of the Bankruptcy Code) from enforcing or exercising any right or remedy with respect to the Guaranteed Obligations, and the Performance Guarantor shall perform or observe, upon demand, the Guaranteed Obligations that would otherwise have been due and performable or observable by any Covered Entity had such right and remedies been permitted to be exercisedirrevocable. (b) Should any money due or owing under this Performance Guaranty not be recoverable from the Performance Guarantor due to any of the matters specified in this Section 2, then, in any such case, such money shall nevertheless be recoverable from the Performance Guarantor as though the Performance Guarantor were principal debtor in respect thereof and not merely a Performance Guarantor and shall be paid by the Performance Guarantor forthwith.

Appears in 1 contract

Samples: Performance Guaranty (T-Mobile US, Inc.)

Validity of Obligations. (a) The Each Performance Guarantor agrees that its obligations under this Performance Guaranty are shall be absolute and unconditional, irrespective of: of (i) the validity, enforceability, avoidance, subordination, discharge, or disaffirmance by any Person (including a trustee in bankruptcy or insolvency practitionerbankruptcy) of the Guaranteed Obligations, (ii) the absence of any attempt by the Administrative Agent (or by the Seller or Canadian Guarantor) Administrator, any Purchaser to collect on any Pool Receivables or to realize upon any other Collateral or any other property or collateralReceivables, or to obtain performance or observance of the Guaranteed Obligations from the Covered Entities or the SellerSubsidiary, the Canadian other Performance Guarantor or any other Person, (iii) the waiver, consent, amendment, modification, extension, forbearance or granting of any indulgence by the Administrative Agent (or by the Seller or Canadian Guarantor) Administrator with respect to any provision of any agreement or instrument evidencing the Guaranteed Obligations, (iv) any change of the time, manner or place of performance of, or in any other term of any of the Guaranteed Obligations, including, without limitation, any amendment to or modification of any of the Transaction Documents, (v) any law, rule, regulation or order of any jurisdiction affecting any term or provision of any of the Guaranteed Obligations, or rights of the Administrative Agent (Administrator or of the Seller or Canadian Guarantor) any Purchaser with respect thereto, (vi) the failure by the Administrative Agent (Administrator or by the Seller or Canadian Guarantor) any Purchaser to take any steps to perfect and maintain perfected its interest in any Collateral Receivable or other property or in any security or collateral related to the Guaranteed Obligations, (vii) any failure to obtain any consent, authorization or approval from or other action by or to notify or file with, any Governmental Authority governmental authority or regulatory body required in connection with the performance of the obligations hereunder by the either Performance Guarantor, Guarantor or (viii) any impossibility or impracticability of performance, illegality, force majeure, any act of government, or other circumstances which might constitute a defense available to, or a discharge of any of, the Covered Entity Subsidiary or the either Performance Guarantor, or any other circumstance, event or happening whatsoever whether foreseen or unforeseen and whether similar to or dissimilar to anything referred to above, (ix) any manner of application of Collateral or any other assets of any Covered Entity or of the Seller or Canadian Guarantor, or proceeds thereof, to satisfy all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents and (x) any change, restructuring or termination of the corporate structure or existence of any Covered Entity, the Seller, Canadian Guarantor or the Performance Guarantor or any other Person or the equity ownership, existence, control, merger, consolidation or sale, lease or transfer of any of the assets of any such Person, or any bankruptcy, insolvency, winding up, dissolution, liquidation, receivership, assignment for the benefit of creditors, arrangement, composition, readjustment or reorganization of, or similar proceedings affecting, any Covered Entity, the Seller the Canadian Guarantor or any of their assets or obligations. The Each Performance Guarantor waives all set-offs and counterclaims and all presentments, demands of performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices of acceptance of this Performance Guaranty. The Each Performance Guarantor’s obligations under this Performance Guaranty shall not be limited if the Administrative Agent (on behalf of the Secured Parties) Administrator or any Purchaser is precluded for any reason (including, without limitation, the application of the automatic stay to a Covered Entity under Section 362 of the Bankruptcy Code) from enforcing or exercising any right or remedy with respect to the Guaranteed Obligations, and the each Performance Guarantor shall perform or observe, upon demand, the Guaranteed Obligations that would otherwise have been due and performable or observable by any the Covered Entity Subsidiary had such right and remedies been permitted to be exercised. (b) Should any money due or owing under this Performance Guaranty not be recoverable from the Performance Guarantor due to any of the matters specified in this Section 2, then, in any such case, such money shall nevertheless be recoverable from the Performance Guarantor as though the Performance Guarantor were principal debtor in respect thereof and not merely a Performance Guarantor and shall be paid by the Performance Guarantor forthwith.

Appears in 1 contract

Samples: Performance Guaranty (Fleetcor Technologies Inc)

Validity of Obligations. (a) The Performance Guarantor agrees that its obligations under this Performance Guaranty are absolute and unconditional, irrespective of: (i) the validity, enforceability, avoidance, subordination, discharge, or disaffirmance by any Person (including a trustee in bankruptcy or insolvency practitionerbankruptcy) of the Guaranteed Obligations, (ii) the absence of any attempt by the Administrative Agent any Secured Party (or by the Seller or Canadian Guarantorany Borrower) to collect on any Pool Receivables or to realize upon any other Collateral or any other property or collateral, or to obtain performance or observance of the Guaranteed Obligations from the Covered Entities or the Seller, the Canadian Guarantor any Borrower or any other Person, (iii) the any waiver, consent, amendment, modification, extension, forbearance or granting of any indulgence by the Administrative Agent any Secured Party (or by the Seller or Canadian Guarantorany Borrower) with respect to any provision of any agreement or instrument evidencing the Guaranteed Obligations, (iv) any change of the time, manner or place of performance of, or in any other term of any of the Guaranteed Obligations, including, without limitation, any amendment to or modification of any of the Transaction Documents, (v) any law, rule, regulation or order of any jurisdiction affecting any term or provision of any of the Guaranteed Obligations, or rights of the Administrative Agent Secured Parties (or of the Seller or Canadian GuarantorBorrowers) with respect thereto, (vi) the failure by the Administrative Agent any Secured Party (or by the Seller or Canadian Guarantorany Borrower) to take any steps to perfect and maintain perfected its interest in any Collateral or other property or in any security or collateral related to the Guaranteed Obligations, (vii) any failure to obtain any consent, authorization or approval from or other action by or to notify or file with, any Governmental Authority required in connection with the performance of the obligations hereunder by the Performance Guarantor, (viii) any impossibility or impracticability of performance, illegality, force majeure, any act of government, or other circumstances which might constitute a defense available to, or a discharge of any Covered Entity or the Performance Guarantor, or any other circumstance, event or happening whatsoever whether foreseen or unforeseen and whether similar to or dissimilar to anything referred to above, (ix) any manner of application of Collateral or any other assets of any Covered Entity or of the Seller or Canadian Guarantorany Borrower, or proceeds thereof, to satisfy all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents and (x) any change, restructuring or termination of the corporate structure or existence of any Covered Entity, the Seller, Canadian Guarantor any Borrower or the Performance Guarantor or any other Person or the equity ownership, existence, control, merger, consolidation or sale, lease or transfer of any of the assets of any such Person, or any bankruptcy, insolvency, winding up, dissolution, liquidation, receivership, assignment for the benefit of creditors, arrangement, composition, readjustment or reorganization of, or similar proceedings affecting, any Covered Entity, the Seller the Canadian Guarantor any Borrower or any of their assets or obligations. The Performance Guarantor waives all set-offs and counterclaims and all presentments, demands of performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices of acceptance of this Performance Guaranty. The Performance Guarantor’s obligations under this Performance Guaranty shall not be limited if the Administrative Agent (on behalf of the any Secured Parties) Party is precluded for any reason (including, without limitation, the application of the automatic stay to a Covered Entity under Section 362 of the Bankruptcy Code) from enforcing or exercising any right or remedy with respect to the Guaranteed Obligations, and the Performance Guarantor shall perform or observe, upon demand, the Guaranteed Obligations that would otherwise have been due and performable or observable by any Covered Entity had such right and remedies been permitted to be exercised. (b) Should any money due or owing under this Performance Guaranty not be recoverable from the Performance Guarantor due to any of the matters specified in this Section 2, then, in any such case, such money shall nevertheless be recoverable from the Performance Guarantor as though the Performance Guarantor were principal debtor in respect thereof and not merely a the Performance Guarantor and shall be paid by the Performance Guarantor forthwith. The Performance Guarantor further agrees that, to the extent that any Covered Entity, any Borrower or any other Person makes a payment or payments to any Secured Party in respect of any Guaranteed Obligation, which payment or payments or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to such Covered Entity, such Borrower or other Person, as applicable, or to the estate, trustee, or receiver of any Covered Entity, the Performance Guarantor, any Borrower, Person or any other party, including, without limitation, the Performance Guarantor, under any bankruptcy, insolvency or similar state or federal law, common law or equitable cause, then, to the extent of such payment or repayment, the Guaranteed Obligations or any part thereof which has been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the date such initial payment, reduction or satisfaction occurred.

Appears in 1 contract

Samples: Performance Guaranty (Lamar Media Corp/De)

Validity of Obligations. (a) The Performance Guarantor Irrevo- cability. Tech Data agrees that its obligations under this Performance Guaranty are absolute and guaranty shall be unconditional, irrespective of: of (i) the validity, enforceability, avoidance, subordination, discharge, discharge or disaffirmance (by any Person (Person, including a trustee in bankruptcy or insolvency practitionerbankruptcy) of the Guaranteed ObligationsObligations or of this Agreement, (ii) the absence of any attempt by the Administrative Agent (or by the Seller or Canadian Guarantor) to collect on any Pool Receivables or to realize upon any other Collateral or any other property or collateral, or to obtain performance or observance of the Guaranteed Obligations from the Covered Entities or the Seller, the Canadian Guarantor Transferor or any other Personguarantor, (iii) the waiver, consent, amendment, modification, extension, forbearance waiver or granting of any indulgence consent by the Administrative Trans- feror, Company, the Agent (or by the Seller or Canadian Guarantor) any Bank Investor with respect to any provision of any agreement or instrument evidencing the Guaranteed Obligations, (iv) any change of the time, manner or place of performance ofpayment or performance, or in any other term of any of the Guaranteed Obligations, including, without limitation, any amendment to or modification of any of the Transaction Documents, (v) any law, rule, regulation or order of any jurisdiction affecting any term or provision of any of the Guaranteed Obligations, Obligations or rights of the Administrative Transferor, the Company, the Agent (or of the Seller or Canadian Guarantor) any Bank Investor with respect thereto, (vi) the failure by the Administrative Transferor, the Company, the Agent (or by the Seller or Canadian Guarantor) any Bank Investor to take any steps to perfect and maintain perfected its respective interest in any Collateral the Receivables or other property acquired by the Company from the Trans- feror, or in by the Transferor from Tech Data or any security or collateral related to the Guaranteed Obligations, Obligations or (vii) any failure to obtain any consent, authorization or approval from or other action by or to notify or file with, any Governmental Authority required in connection with the performance of the obligations hereunder by the Performance Guarantor, (viii) any impossibility or impracticability of performance, illegality, force majeure, any act of government, or other circumstances which might otherwise constitute a legal or equitable discharge or defense available toof a guarantor. Tech Data agrees that none of the Transferor, the Company, the Agent or a discharge any Bank Investor shall be under any obligation to mxxxxxxx any assets in favor of or against or in payment of any Covered Entity or all of the Performance GuarantorObligations. Tech 0104420.05-01S7a 87 Data further agrees that, to the extent that the Trans- feror makes a payment or payments to the Company, the Agent or any Bank Investor, which payment or payments or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to the Transferor its estate, trustee, receiver or any other circumstanceparty, event or happening whatsoever whether foreseen or unforeseen and whether similar to or dissimilar to anything referred to aboveincluding without limitation, (ix) any manner of application of Collateral or any other assets of any Covered Entity or of the Seller or Canadian GuarantorTech Data, or proceeds thereof, to satisfy all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents and (x) any change, restructuring or termination of the corporate structure or existence of any Covered Entity, the Seller, Canadian Guarantor or the Performance Guarantor or any other Person or the equity ownership, existence, control, merger, consolidation or sale, lease or transfer of any of the assets of any such Person, or any bankruptcy, insolvency, winding up, dissolution, liquidation, receivership, assignment for the benefit of creditors, arrangement, composition, readjustment or reorganization of, insolvency or similar proceedings affectingstate or federal law, any Covered Entitycommon law or equitable cause, then to the extent of such payment or repayment, the Seller Obligation or part thereof which has been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the Canadian Guarantor date such initial payment, reduction or any of their assets or obligationssatisfaction occurred. The Performance Guarantor Tech Data waives all set-offs and counterclaims and all presentments, demands of for performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices of acceptance of this Performance Guarantyguaranty. The Performance Guarantor’s Tech Data agrees that its obligations under this Performance Guaranty shall not be limited if the Administrative Agent (on behalf of the Secured Parties) is precluded for any reason (including, without limitation, the application of the automatic stay to a Covered Entity under Section 362 of the Bankruptcy Code) from enforcing or exercising any right or remedy with respect to the Guaranteed Obligations, and the Performance Guarantor shall perform or observe, upon demand, the Guaranteed Obligations that would otherwise have been due and performable or observable by any Covered Entity had such right and remedies been permitted to be exercised. (b) Should any money due or owing under this Performance Guaranty not be recoverable from the Performance Guarantor due to any of the matters specified in this Section 2, then, in any such case, such money shall nevertheless be recoverable from the Performance Guarantor as though the Performance Guarantor were principal debtor in respect thereof and not merely a Performance Guarantor and guaranty shall be paid by the Performance Guarantor forthwithirrevocable.

Appears in 1 contract

Samples: Transfer and Administration Agreement (Tech Data Corp)

Validity of Obligations. (a) The Performance Guarantor UAG agrees that its obligations under this Performance Guaranty are absolute and Agreement shall be unconditional, irrespective of: of (i) the validity, enforceability, avoidance, subordination, discharge, or disaffirmance by any Person (including a trustee in bankruptcy or insolvency practitionerbankruptcy) of the Guaranteed Atlantic Obligations, any Receivable or the AAFC Purchase Agreement, (ii) the absence of any attempt by the Administrative Agent (or by the Seller or Canadian Guarantor) to collect on any Pool Receivables or to realize upon any other Collateral from the Obligor related thereto or any other property or collateralguarantor, or to obtain performance or observance of collect the Guaranteed Atlantic Obligations from the Covered Entities or the Seller, the Canadian Guarantor Atlantic or any other Person, (iii) the waiver, consent, amendment, modification, extension, forbearance or granting of any indulgence by any of the Administrative Agent (or by the Seller or Canadian Guarantor) AFC Parties with respect to any provision of any agreement or instrument evidencing the Guaranteed ObligationsAtlantic Obligations or any Receivable, (iv) any change of the time, manner or place of performance of, or in any other term of any of the Guaranteed ObligationsAtlantic Obligations or any Receivable, including, including without limitation, any amendment to or modification of any of the Transaction DocumentsAAFC Purchase Agreement, (v) any law, rule, regulation or order of any jurisdiction affecting any term or provision of any of the Guaranteed Atlantic Obligations, any Receivable, or rights of the Administrative Agent (or any of the Seller or Canadian Guarantor) AFC Parties with respect thereto, (vi) the failure by any of the Administrative Agent (or by the Seller or Canadian Guarantor) AFC Parties to take any steps to perfect and maintain perfected its respective interest in any Collateral Receivable or other property acquired by any of the AFC Parties from Atlantic or in any security or collateral related to the Guaranteed Atlantic Obligations, (vii) any exchange or release of any Receivable or other property acquired by the AFC Parties from Atlantic, (viii) any failure to obtain any consent, authorization or approval from or other action by or to notify or file with, any Governmental Authority governmental authority or regulatory body required in connection with the performance of the obligations hereunder by the Performance Guarantor, UAG or (viiiix) any impossibility or impracticability of performance, illegality, force majeure, any act of government, or other circumstances which might constitute a defense default available to, or a discharge of any Covered Entity Atlantic or the Performance GuarantorUAG, or any other circumstance, event or happening whatsoever whether foreseen or unforeseen and whether similar to or dissimilar to anything referred to above. UAG further agrees that its obligations under this Agreement shall not be limited by any valuation, (ix) estimation or disallowance made in connection with any manner proceedings involving Atlantic filed under the Bankruptcy Code, whether pursuant to Section 502 of application of Collateral the Bankruptcy Code or any other Section thereof. UAG further agrees that none of the AFC Parties shall be under any obligation to xxxxxxxx any assets in favor of or against or in payment of any Covered Entity or all of the Seller or Canadian Guarantor, or proceeds thereofAtlantic Obligations. UAG further agrees that, to satisfy all the extent that Atlantic makes a payment or payments to any of the Guaranteed Obligations AFC Parties, which payment or as otherwise permitted under the Transaction Documents, payments (or any manner of sale part thereof) are subsequently invalidated, declared to be fraudulent or other disposition of any collateral for all preferential, set aside and/or required to be repaid to Atlantic, its estate, trustee or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents and (x) any change, restructuring or termination of the corporate structure or existence of any Covered Entity, the Seller, Canadian Guarantor or the Performance Guarantor receiver or any other Person party, including, without limitation, UAG, under any bankruptcy law, state or federal law, common law or equitable cause, then to the equity ownershipextent of such payment or repayment, existencethe Atlantic Obligations or part thereof which had been paid, control, merger, consolidation reduced or sale, lease or transfer of any satisfied by such amount shall be reinstated and continued in full force and effect as of the assets of any date such Personinitial payment, reduction or any bankruptcy, insolvency, winding up, dissolution, liquidation, receivership, assignment for the benefit of creditors, arrangement, composition, readjustment or reorganization of, or similar proceedings affecting, any Covered Entity, the Seller the Canadian Guarantor or any of their assets or obligationssatisfaction occurred. The Performance Guarantor UAG waives all set-offs and counterclaims and all presentments, demands of for performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices of acceptance of this Performance GuarantyAgreement. The Performance Guarantor’s UAG's obligations under this Performance Guaranty Agreement shall not be limited if the Administrative Agent (on behalf of the Secured Parties) is AFC Parties are precluded for any reason (including, including without limitation, the application of the automatic stay to a Covered Entity under Section 362 of the Bankruptcy Code) from enforcing or exercising any right or remedy with respect to the Guaranteed Atlantic Obligations, and UAG shall pay to the Performance Guarantor shall perform or observeAFC Parties, upon demand, the Guaranteed amount of the Atlantic Obligations that would otherwise have been due and performable or observable by any Covered Entity payable had such right rights and remedies been permitted to be exercised. (b) Should any money due or owing under this Performance Guaranty not be recoverable from the Performance Guarantor due to any of the matters specified in this Section 2, then, in any such case, such money shall nevertheless be recoverable from the Performance Guarantor as though the Performance Guarantor were principal debtor in respect thereof and not merely a Performance Guarantor and shall be paid by the Performance Guarantor forthwith.

Appears in 1 contract

Samples: Support Agreement (United Auto Group Inc)

Validity of Obligations. (a) The Performance Guarantor agrees that its obligations under this Performance Guaranty are absolute and unconditional, irrespective of: (i) the validity, enforceability, avoidance, subordination, discharge, or disaffirmance by any Person (including a trustee in bankruptcy or insolvency practitionerbankruptcy) of the Guaranteed Obligations, (ii) the absence of any attempt by the Administrative Agent any Secured Party (or by the Seller or Canadian GuarantorBorrower) to collect on any Pool Receivables or to realize upon any other Collateral or any other property or collateral, or to obtain performance or observance of the Guaranteed Obligations from the Covered Entities or the Seller, the Canadian Guarantor Borrower or any other Person, (iii) the waiver, consent, amendment, modification, extension, forbearance or granting of any indulgence by the Administrative Agent any Secured Party (or by the Seller or Canadian GuarantorBorrower) with respect to any provision of any agreement or instrument evidencing the Guaranteed Obligations, (iv) any change of the time, manner or place of performance of, or in any other term of any of the Guaranteed Obligations, including, without limitation, any amendment to or modification of any of the Transaction Documents, (v) any law, rule, regulation or order of any jurisdiction affecting any term or provision of any of the Guaranteed Obligations, or rights of the Administrative Agent Secured Parties (or of the Seller or Canadian GuarantorBorrower) with respect thereto, (vi) the failure by the Administrative Agent any Secured Party (or by the Seller or Canadian GuarantorBorrower) to take any steps to perfect and maintain perfected its interest in any Collateral or other property or in any security or collateral related to the Guaranteed Obligations, (vii) any failure to obtain any consent, authorization or approval from or other action by by, or to notify or file with, any Governmental Authority required in connection with the performance of the obligations hereunder by the Performance Guarantor, (viii) any impossibility or impracticability of performance, illegality, force majeure, any act of government, or other circumstances which might constitute a defense available to, or a discharge of any Covered Entity or the Performance Guarantor, or any other circumstance, event or happening whatsoever whether foreseen or unforeseen and whether similar to or dissimilar to anything referred to above, (ix) any manner of application of Collateral or any other assets of any Covered Entity or of the Seller or Canadian GuarantorBorrower, or proceeds thereof, to satisfy all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents and (x) any change, restructuring or termination of the corporate structure or existence of any Covered Entity, the Seller, Canadian Guarantor Borrower or the Performance Guarantor or any other Person or the equity ownership, existence, control, merger, consolidation or sale, lease or transfer of any of the assets of any such Person, or any bankruptcy, insolvency, winding up, dissolution, liquidation, receivership, assignment for the benefit of creditors, arrangement, composition, readjustment or reorganization of, or similar proceedings affecting, any Covered Entity, the Seller the Canadian Guarantor Borrower or any of their assets or obligations. The Performance Guarantor waives all set-offs and counterclaims and all presentments, demands of performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices of acceptance of this Performance Guaranty. The Performance Guarantor’s obligations under this Performance Guaranty shall not be limited if the Administrative Agent (on behalf of the any Secured Parties) Party is precluded for any reason (including, without limitation, the application of the automatic stay to a Covered Entity under Section 362 of the Bankruptcy Code) from enforcing or exercising any right or remedy with respect to the Guaranteed Obligations, and the Performance Guarantor shall perform or observe, upon demand, the Guaranteed Obligations that would otherwise have been due and performable or observable by any Covered Entity had such right and remedies been permitted to be exercised. (b) Should any money due or owing under this Performance Guaranty not be recoverable from the Performance Guarantor due to any of the matters specified in this Section 2, then, in any such case, such money shall nevertheless be recoverable from the Performance Guarantor as though the Performance Guarantor were principal debtor in respect thereof and not merely a Performance Guarantor and shall be paid by the Performance Guarantor forthwith. The Performance Guarantor further agrees that, to the extent that any Covered Entity, the Borrower or any other Person makes a payment or payments to any Secured Party in respect of any Guaranteed Obligation, which payment or payments or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to such Covered Entity, the Borrower or other Person, as applicable, or to the estate, trustee, or receiver of any Covered Entity, the Borrower, Person or any other party, including, without limitation, the Performance Guarantor, under any bankruptcy, insolvency or similar state or federal law, common law or equitable cause, then, to the extent of such payment or repayment, the Guaranteed Obligations or any part thereof which has been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the date such initial payment, reduction or satisfaction occurred.

Appears in 1 contract

Samples: Performance Guaranty (Foresight Energy LP)

Validity of Obligations. (a) The Performance Guarantor Company agrees that its obligations under this Performance Guaranty are shall be absolute and unconditional, irrespective of: of (i) the validity, enforceability, avoidance, subordination, discharge, or disaffirmance by any Person (including a trustee in bankruptcy or insolvency practitionerbankruptcy) of the Guaranteed Obligations, (ii) the absence of any attempt by the Administrative Agent (or by the Seller or Canadian Guarantor) to collect on any Pool Receivables or to realize upon any other Collateral Administrator or any other property or collateralSecured Party to collect any Receivables, or to obtain performance or observance of the Guaranteed Obligations from the any Covered Entities or the Seller, the Canadian Guarantor Subsidiary or any other Person, (iii) the waiver, consent, amendment, modification, extension, forbearance or granting of any indulgence by the Administrative Agent (Administrator or by the Seller or Canadian Guarantor) any other Secured Party with respect to any provision of any agreement or instrument evidencing the Guaranteed Obligations, (iv) any change of the time, manner or place of performance of, or in any other term of any of the Guaranteed Obligations, including, without limitation, any amendment to or modification of any of the Transaction Documents, , (v) any law, rule, regulation or order of any jurisdiction affecting any term or provision of any of the Guaranteed Obligations, or rights of the Administrative Agent (Administrator or of the Seller or Canadian Guarantor) any other Secured Party with respect thereto, (vi) the failure by the Administrative Agent (Administrator or by the Seller or Canadian Guarantor) any other Secured Party to take any steps to perfect and maintain perfected its interest in any Collateral Receivable or other property or in any security or collateral related to the Guaranteed Obligations, (vii) any failure to obtain any consent, authorization or approval from or other action by or to notify or file with, any Governmental Authority governmental authority or regulatory body required in connection with the performance of the obligations hereunder by the Performance GuarantorCompany, (viii) any impossibility or impracticability of performance, illegality, force majeure, any act of government, or other circumstances which might constitute a defense available to, or a discharge of any Covered Entity Subsidiary or the Performance GuarantorCompany, or any other circumstance, event or happening whatsoever whether foreseen or unforeseen and whether similar to or dissimilar to anything referred to above, (ix) any manner of application of Collateral collateral or any other assets of any Covered Entity or of the Seller or Canadian GuarantorSubsidiary, or proceeds thereof, to satisfy all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents and or (x) any change, restructuring or termination of the corporate structure or existence of any Covered EntitySubsidiary, the Seller, Canadian Guarantor or the Performance Guarantor Company or any other Person or the equity ownership, existence, control, merger, consolidation or sale, lease or transfer of any of the assets of any such Person, or any bankruptcy, insolvency, winding up, dissolution, liquidation, receivership, assignment for the benefit of creditors, arrangement, composition, readjustment or reorganization of, or similar proceedings affecting, any Covered Entity, the Seller the Canadian Guarantor Subsidiary or any of their assets or obligations. The Performance Guarantor Company waives all set-offs and counterclaims and all presentments, demands of performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices of acceptance of this Performance Guaranty. The Performance GuarantorCompany’s obligations under this Performance Guaranty shall not be limited if the Administrative Agent (on behalf of the Administrator or any other Secured Parties) Party is precluded for any reason (including, without limitation, the application of the automatic stay to a Covered Entity under Section 362 of the Bankruptcy Code) from enforcing or exercising any right or remedy with respect to the Guaranteed Obligations, and the Performance Guarantor Company shall perform or observe, upon demand, the Guaranteed Obligations that would otherwise have been due and performable or observable by any the applicable Covered Entity Subsidiary had such right and remedies been permitted to be exercised. (b) Should any money due or owing under this Performance Guaranty not be recoverable from the Performance Guarantor Company due to any of the matters specified above in this Section 22(a), then, in any such case, such money shall nevertheless be recoverable from the Performance Guarantor Company as though the Performance Guarantor Company were principal debtor in respect thereof and not merely a Performance Guarantor guarantor and shall be paid by the Performance Guarantor Company forthwith.

Appears in 1 contract

Samples: Performance Guaranty

Validity of Obligations. (a) The Performance Guarantor agrees that its obligations under this Performance Guaranty are Agreement shall be absolute and unconditional, irrespective of: of (i) the validity, enforceability, avoidancedisaffirmance, subordination, discharge, settlement or disaffirmance compromise (by any Person (other than one of the Guaranteed Parties, including a trustee in bankruptcy or insolvency practitionerbankruptcy) of the Guaranteed ObligationsObligations due to the inability of a Guaranty Party to pay or perform such obligation, (ii) the absence of any attempt by the Administrative Agent (or by the Seller or Canadian Guarantor) to collect on any Pool Receivables or to realize upon any other Collateral or any other property or collateral, or to obtain performance or observance of the Guaranteed Obligations from the Covered Entities or the Seller, the Canadian Guarantor or any other Persona Guaranty Party, (iii) the waiver, consent, amendment, modification, extension, forbearance or granting of any indulgence by the Administrative Agent (or by the Seller or Canadian Guarantor) with respect to any provision of any agreement or instrument evidencing the Guaranteed Obligations, (iv) any change of the time, manner or place of performance ofor payment, or in any other term of any of the Guaranteed Obligations, including, without limitation, any amendment to or modification of any of the Transaction Documents, (viv) any law, rule, regulation or order of any jurisdiction affecting any term or provision terms of any of the Guaranteed Obligations, or rights of the Administrative Agent (or of the Seller or Canadian Guarantor) with respect thereto, (vi) the failure by the Administrative Agent (or by the Seller or Canadian Guarantor) to take any steps to perfect and maintain perfected its interest in any Collateral or other property or in any security or collateral related to the Guaranteed Obligations, (vii) any failure to obtain any consent, authorization or approval from or other action by or to notify or file with, any Governmental Authority required in connection with the performance of the obligations hereunder by the Performance Guarantor, (viii) any impossibility or impracticability of performance, illegality, force majeure, any act of government, or other circumstances which might constitute a defense available to, or a discharge of any Covered Entity or the Performance Guarantor, or any other circumstance, event or happening whatsoever whether foreseen or unforeseen and whether similar to or dissimilar to anything referred to above, (ix) any manner of application of Collateral or any other assets of any Covered Entity or of the Seller or Canadian Guarantor, or proceeds thereof, to satisfy all or any of the Guaranteed Obligations or as otherwise permitted under rights of the Transaction DocumentsGuaranteed Parties with respect hereto due to the inability of a Guaranty Party to pay or perform such obligation (including any estimation, reduction or any manner of sale or other disposition of any collateral for all or any valuation of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents and (x) made in connection with any change, restructuring or termination of the corporate structure or existence of any Covered Entity, the Seller, Canadian Guarantor proceedings involving a Guaranty Party or the Performance Guarantor filed under the Federal Bankruptcy Code, whether pursuant to Section 502 of the Federal Bankruptcy Code or any other Person Section thereof), and (v) any other circumstance that would otherwise constitute a legal or equitable discharge or defense of a guarantor. The Performance Guarantor further agrees that, to the equity ownershipextent that a Guaranty Party on its own behalf pursuant to the Transaction Document, existence, control, merger, consolidation makes a payment or sale, lease or transfer of any payments to the Guaranteed Parties in respect of the assets of any such Person, Guaranteed Obligations which payment or payments or any bankruptcypart thereof are subsequently invalidated, insolvencydeclared to be fraudulent or preferential, winding upset aside or required to be repaid to its estate, dissolutiontrustee, liquidationreceiver or any other party, receivershipunder any bankruptcy law, assignment for state or federal law, common law or equitable cause, then to the benefit extent of creditors, arrangement, composition, readjustment such payment or reorganization of, or similar proceedings affecting, any Covered Entityrepayment, the Seller Guaranteed Obligations or part thereof that has been paid, reduced or satisfied by such amount shall be reinstated and continue in full force and effect as of the Canadian Guarantor date such initial payment, reduction or any of their assets or obligationssatisfaction occurred. The Performance Guarantor waives all set-offs and counterclaims and all presentments, demands of for performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices notices. After all of acceptance the Guaranteed Obligations have been performed or satisfied in full, the Performance Guarantor shall be subrogated to the rights and remedies of this Performance Guarantythe Guaranteed Parties with respect to any Guaranty Party. The Performance Guarantor’s Guarantor agrees that its obligations under this Performance Guaranty shall not be limited if the Administrative Agent (on behalf of the Secured Parties) is precluded for any reason (including, without limitation, the application of the automatic stay to a Covered Entity under Section 362 of the Bankruptcy Code) from enforcing or exercising any right or remedy with respect to the Guaranteed Obligations, and the Performance Guarantor shall perform or observe, upon demand, the Guaranteed Obligations that would otherwise have been due and performable or observable by any Covered Entity had such right and remedies been permitted to be exercisedirrevocable. (b) Should any money due or owing under this Performance Guaranty not be recoverable from the Performance Guarantor due to any of the matters specified in this Section 2, then, in any such case, such money shall nevertheless be recoverable from the Performance Guarantor as though the Performance Guarantor were principal debtor in respect thereof and not merely a Performance Guarantor and shall be paid by the Performance Guarantor forthwith.

Appears in 1 contract

Samples: Performance Guaranty and Parent Undertaking Agreement (United States Cellular Corp)

Validity of Obligations. (a) The Performance Guarantor agrees that its obligations under this Performance Guaranty are absolute and unconditional, irrespective of: (i) the validity, enforceability, avoidance, subordination, discharge, or disaffirmance by any Person (including a trustee in bankruptcy or insolvency practitionerbankruptcy) of the Guaranteed Obligations, (ii) the absence of any attempt by the Administrative Agent any Secured Party (or by the Seller or Canadian GuarantorBorrower) to collect on any Pool Receivables or to realize upon any other Collateral or any other property or collateral, or to obtain performance or observance of the Guaranteed Obligations from the Covered Entities or the Seller, the Canadian Guarantor Borrower or any other Person, (iii) the waiver, consent, amendment, modification, extension, forbearance or granting of any indulgence by the Administrative Agent any Secured Party (or by the Seller or Canadian GuarantorBorrower) with respect to any provision of any agreement or instrument evidencing the Guaranteed Obligations, (iv) any change of the time, manner or place of performance of, or in any other term of any of the Guaranteed Obligations, including, without limitation, any amendment to or modification of any of the Transaction Documents, (v) any law, rule, regulation or order of any jurisdiction affecting any term or provision of any of the Guaranteed Obligations, or rights of the Administrative Agent Secured Parties (or of the Seller or Canadian GuarantorBorrower) with respect thereto, (vi) the failure by the Administrative Agent any Secured Party (or by the Seller or Canadian GuarantorBorrower) to take any steps to perfect and maintain perfected its interest in any Collateral or other property or in any security or collateral related to the Guaranteed Obligations, (vii) any failure to obtain any consent, authorization or approval from or other action by or to notify or file with, any Governmental Authority required in connection with the performance of the obligations hereunder by the Performance Guarantor, (viii) any impossibility or impracticability of performance, illegality, force majeure, any act of government, or other circumstances which might constitute a defense available to, or a discharge of any Covered Entity or the Performance Guarantor, or any other circumstance, event or happening whatsoever whether foreseen or unforeseen and whether similar to or dissimilar to anything referred to above, (ix) any manner of application of Collateral or any other assets of any Covered Entity or of the Seller or Canadian GuarantorBorrower, or proceeds thereof, to satisfy all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents and (x) any change, restructuring or termination of the corporate structure or existence of any Covered Entity, the Seller, Canadian Guarantor Borrower or the Performance Guarantor or any other Person or the equity ownership, existence, control, merger, consolidation or sale, lease or transfer of any of the assets of any such Person, or any bankruptcy, insolvency, winding up, dissolution, liquidation, receivership, assignment for the benefit of creditors, arrangement, composition, readjustment or reorganization of, or similar proceedings affecting, any Covered Entity, the Seller the Canadian Guarantor Borrower or any of their assets or obligations. The Performance Guarantor waives all set-offs and counterclaims and all presentments, demands of performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices of acceptance of this Performance Guaranty. The Performance Guarantor’s obligations under this Performance Guaranty shall not be limited if the Administrative Agent (on behalf of the any Secured Parties) Party is precluded for any reason (including, without limitation, the application of the automatic stay to a Covered Entity under Section 362 of the Bankruptcy Code) from enforcing or exercising any right or remedy with respect to the Guaranteed Obligations, and the Performance Guarantor shall perform or observe, upon demand, the Guaranteed Obligations that would otherwise have been due and performable or observable by any Covered Entity had such right and remedies been permitted to be exercised. (b) Should any money due or owing under this Performance Guaranty not be recoverable from the Performance Guarantor due to any of the matters specified in this Section 2, then, in any such case, such money shall nevertheless be recoverable from the Performance Guarantor as though the Performance Guarantor were principal debtor in respect thereof and not merely a Performance Guarantor and shall be paid by the Performance Guarantor forthwith. The Performance Guarantor further agrees that, to the extent that any Covered Entity, the Borrower or any other Person makes a payment or payments to any Secured Party in respect of any Guaranteed Obligation, which payment or payments or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to such Covered Entity, the Borrower or other Person, as applicable, or to the estate, trustee, or receiver of any Covered Entity, the Borrower, Person or any other party, including, without limitation, the Performance Guarantor, under any bankruptcy, insolvency or similar state or federal law, common law or equitable cause, then, to the extent of such payment or repayment, the Guaranteed Obligations or any part thereof which has been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the date such initial payment, reduction or satisfaction occurred.

Appears in 1 contract

Samples: Performance Guaranty (Alliance Resource Partners Lp)

Validity of Obligations. (a) The Performance Guarantor agrees that its obligations under this Performance Guaranty are shall be absolute and unconditional, irrespective of: of (i) the validity, enforceability, avoidance, subordination, discharge, or disaffirmance by any Person (including a trustee in bankruptcy or insolvency practitioner) of the Guaranteed Obligations, (ii) the absence of any attempt by any Credit Party or the Administrative Agent (or by the Seller or Canadian Guarantor) SPV to collect on any Pool Receivables or to realize upon any other Collateral Pool Assets or any other Pool Assets or any other property or collateral, or to obtain performance or observance of the Guaranteed Obligations from the Covered Entities or the SellerEntities, the Canadian Guarantor SPV or any other Person, (iii) the any waiver, consent, amendment, modification, extension, forbearance or granting of any indulgence by the Administrative Agent (Credit Parties or by the Seller or Canadian Guarantor) SPV with respect to any provision of any agreement or instrument evidencing the Guaranteed Obligations, (iv) any change of the time, manner or place of performance of, or in any other term of any of the Guaranteed Obligations, including, without limitation, any amendment to or modification of any of the Transaction Documents, (v) any law, rule, regulation or order of any jurisdiction affecting any term or provision of any of the Guaranteed Obligations, or rights of the Administrative Agent (Credit Parties or of the Seller or Canadian Guarantor) SPV with respect thereto, (vi) the failure by any Credit Party or the Administrative Agent (or by the Seller or Canadian Guarantor) SPV to take any steps to perfect and maintain perfected its interest in any Collateral Receivable or other property or in any security or collateral related to the Guaranteed Obligations, (vii) any failure to obtain any consent, authorization or approval from or other action by or to notify or file with, any Governmental Authority required in connection with the performance of the obligations hereunder by the Performance Guarantor, (viii) any impossibility or impracticability of performance, illegality, force majeure, any act of government, or other circumstances which might constitute a defense available to, or a discharge of any Covered Entity or the Performance Guarantor, or any other circumstance, event or happening whatsoever whether foreseen or unforeseen and whether similar to or dissimilar to anything referred to above, (ix) any manner of application of Collateral collateral or any other assets of any Covered Entity or of the Seller or Canadian GuarantorSPV, or proceeds thereof, to satisfy all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents Documents, and (x) any change, restructuring or termination of the corporate structure or existence of any Covered Entity, the SellerSPV, Canadian Guarantor or the Performance Guarantor or any other Person or the equity ownership, existence, control, merger, consolidation or sale, lease or transfer of any of the assets of any such Person, or any bankruptcy, insolvency, winding up, dissolution, liquidation, receivership, assignment for the benefit of creditors, arrangement, composition, readjustment or reorganization of, or similar proceedings affecting, any Covered Entity, the Seller the Canadian Guarantor SPV or any of their assets or obligations. The Performance Guarantor waives all set-offs and counterclaims and all presentments, demands of performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices of acceptance of this Performance Guaranty. The Performance Guarantor’s obligations under this Performance Guaranty shall not be limited if the Administrative Agent (on behalf of the Secured Parties) any Credit Party is precluded for any reason (including, without limitation, the application of the automatic stay to a Covered Entity under Section 362 of the Bankruptcy Code) from enforcing or exercising any right or remedy with respect to the Guaranteed Obligations, and the Performance Guarantor shall perform or observe, upon demand, the Guaranteed Obligations that would otherwise have been due and performable or observable by any Covered Entity had such right and remedies been permitted to be exercised. (b) Should any money due or owing under this Performance Guaranty not be recoverable from the Performance Guarantor due to any of the matters specified above in this Section 22(a), then, in any such case, such money shall nevertheless be recoverable from the Performance Guarantor as though the Performance Guarantor were a principal debtor in respect thereof and not merely a Performance Guarantor guarantor and shall be paid by the Performance Guarantor forthwith. The Performance Guarantor further agrees that, to the extent that any Covered Entity, the SPV or any other Person makes a payment or payments to the any Credit Party in respect of any Guaranteed Obligation, which payment or payments or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to such Covered Entity, the SPV or other Person, as applicable, or to the estate, trustee, or receiver of any Covered Entity, the SPV, and such Person or to any other party, including, without limitation, the Performance Guarantor, under any bankruptcy, insolvency or similar state or federal law, common law or equitable cause, then, to the extent of such payment or repayment, the Guaranteed Obligations or any part thereof which has been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the date such initial payment, reduction or satisfaction occurred.

Appears in 1 contract

Samples: Performance Guaranty (Owens Corning)

Validity of Obligations. (a) The Performance Guarantor agrees that its obligations under this Performance Guaranty are absolute and unconditional, irrespective of: (i) the validity, enforceability, avoidance, subordination, discharge, or disaffirmance by any Person (including a trustee in bankruptcy or insolvency practitioner) of the Guaranteed Obligations, (ii) the absence of any attempt by the Administrative Agent any Secured Party (or by the Seller or Canadian GuarantorSPE) to collect on any Pool Receivables or to realize upon any other Collateral Supporting Assets or any other property or collateral, or to obtain performance or observance of the Guaranteed Obligations from the Covered Entities or the SellerEntities, the Canadian Guarantor SPE or any other Person, (iii) the any waiver, consent, amendment, modification, extension, forbearance or granting of any indulgence by the Administrative Agent any Secured Party (or by the Seller or Canadian GuarantorSPE) with respect to any provision of any agreement or instrument evidencing the Guaranteed Obligations, (iv) any change of the time, manner or place of performance of, or in any other term of any of the Guaranteed Obligations, including, without limitation, any amendment to or modification of any of the Transaction Documents, (v) any law, rule, regulation or order of any jurisdiction affecting any term or provision of any of the Guaranteed Obligations, or rights of the Administrative Agent Secured Parties (or of the Seller or Canadian GuarantorSPE) with respect thereto, (vi) the failure by the Administrative Agent any Secured Party (or by the Seller or Canadian GuarantorSPE) to take any steps to perfect and maintain perfected its interest in any Collateral Supporting Assets or other property or in any security or collateral related to the Guaranteed Obligations, (vii) any failure to obtain any consent, authorization or approval from or other action by or to notify or file with, any Governmental Authority Official Body required in connection with the performance of the obligations hereunder by the Performance Guarantor, (viii) any impossibility or impracticability of performance, illegality, force majeure, any act of government, or other circumstances which might constitute a defense available to, or a discharge of any Covered Entity or the Performance Guarantor, or any other circumstance, event or happening whatsoever whether foreseen or unforeseen and whether similar to or dissimilar to anything referred to above, (ix) any manner of application of Collateral Supporting Assets or any other assets of any Covered Entity or of the Seller or Canadian GuarantorSPE, or proceeds thereof, to satisfy all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents and (x) any change, restructuring or termination of the corporate structure or existence of any Covered Entity, the Seller, Canadian Guarantor SPE or the Performance Guarantor or any other Person or the equity ownership, existence, control, merger, consolidation or sale, lease or transfer of any of the assets of any such Person, or any bankruptcy, insolvency, winding up, dissolution, liquidation, receivership, assignment for the benefit of creditors, arrangement, composition, readjustment or reorganization of, or similar proceedings affecting, any Covered Entity, the Seller the Canadian Guarantor SPE or any of their assets or obligations. The To the extent allowed under the law, the Performance Guarantor waives all set-offs and counterclaims and all presentments, demands of performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices of acceptance of this Performance Guaranty. The Performance Guarantor’s obligations under this Performance Guaranty shall not be limited if the Administrative Agent (on behalf of the any Secured Parties) Party is precluded for any reason (including, without limitation, the application of the automatic stay to a Covered Entity under Section 362 of the Bankruptcy Code) from enforcing or exercising any right or remedy with respect to the Guaranteed Obligations, and the Performance Guarantor shall perform or observe, upon demand, the Guaranteed Obligations that would otherwise have been due and performable or observable by any Covered Entity had such right and remedies been permitted to be exercised. (b) Should any money due or owing under this Performance Guaranty not be recoverable from the Performance Guarantor due to any of the matters specified in this Section 2, then, in any such case, such money shall nevertheless be recoverable from the Performance Guarantor as though the Performance Guarantor were a principal debtor in respect thereof and not merely a Performance Guarantor guarantor and shall be paid by the Performance Guarantor forthwith. The Performance Guarantor further agrees that, to the extent that any Covered Entity, the SPE or any other Person makes a payment or payments to any Secured Party in respect of any Guaranteed Obligation, which payment or payments or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to such Covered Entity, the SPE or other Person, as applicable, or to the estate, trustee, or receiver of any Covered Entity, the SPE, Person or any other party, including, without limitation, the Performance Guarantor, under any bankruptcy, insolvency or similar state or federal law, common law or equitable cause, then, to the extent of such payment or repayment, the Guaranteed Obligations or any part thereof which has been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the date such initial payment, reduction or satisfaction occurred.

Appears in 1 contract

Samples: Performance Guaranty (Centuri Holdings, Inc.)

Validity of Obligations. (a) The Performance Guarantor Parent agrees that its obligations under this Performance Guaranty are absolute and Agreement shall be unconditional, irrespective of: , without limitation, (ia) the validity, enforceability, avoidance, subordination, discharge, or disaffirmance by any Person (including a trustee in bankruptcy or insolvency practitionerbankruptcy) of the Guaranteed Seller Obligations, any Receivable, the Investor Agreement or the Parallel Purchase Agreement, (iib) the absence of any attempt by the Administrative Agent (or by the Seller or Canadian Guarantor) to collect on any Pool Receivables or to realize upon any other Collateral from the Obligor related thereto or any other property or collateralguarantor, or to obtain performance or observance of collect the Guaranteed Seller Obligations from the Covered Entities or the Seller, the Canadian Guarantor Seller or any other Person, (iiic) the waiver, consent, amendment, modification, consent extension, forbearance or granting of any indulgence by any of the Administrative Purchase Parties or the Agent (or by the Seller or Canadian Guarantor) with respect to any provision of any agreement or instrument evidencing the Guaranteed ObligationsSeller Obligations or any Receivable, (ivd) any change of the time, manner or place of performance of, or in any other term of any of the Guaranteed ObligationsSeller Obligations or any Receivable, including, including without limitation, any amendment to or modification of any of the Transaction DocumentsInvestor Agreement or the Parallel Purchase Agreement, (ve) any law, rule, regulation or order of any jurisdiction affecting any term or provision of any of the Guaranteed Seller Obligations, any Receivable, or rights of the Administrative Agent (or any of the Seller Purchase Parties or Canadian Guarantor) the Agent with respect thereto, (vif) the failure by any of the Administrative Purchase Parties or the Agent (or by the Seller or Canadian Guarantor) to take any steps to perfect and maintain perfected its respective interest in any Collateral Receivable or other property acquired by any of the Purchase Parties from the Seller or in any security or collateral related to the Guaranteed Seller Obligations, (viig) any exchange or release of any Receivable or other property acquired by the Purchase Parties from the Seller, (h) any failure to obtain any consent, authorization or approval from or other action by or to notify or file with, any Governmental Authority governmental authority or regulatory body required in connection with the performance of the obligations hereunder by the Performance Guarantor, Parent or (viiii) any impossibility impossi- bility or impracticability of performance, illegality, force majeure, any act of government, or other circumstances similar circumstance which might constitute a defense available to, or a discharge of any Covered Entity the Seller or the Performance GuarantorParent. The Parent further agrees that its obligations under this Agreement shall not be limited by any valuation, estimation or disallowance made in connection with any proceedings involving the Seller filed under the United States Bankruptcy Code, as amended ("Code"), whether pursuant to Section 502 of the Code or any other circumstanceSection thereof. The Parent further agrees that none of the Purchase Parties or the Agent shall be under any obligation to xxxxxxxx any assets in favor of or against or in payment of any or all of the Seller Obligations. The Parent further agrees that, event to the extent that the Seller makes a payment or happening whatsoever whether foreseen payments to any of the Purchase Parties or unforeseen and whether similar the Agent, which payment or payments (or any part thereof) are subsequently invalidated, declared to be fraudulent or dissimilar preferential, set aside and/or required to anything referred be repaid to abovethe Seller, (ix) any manner of application of Collateral its estate, trustee or receiver or any other assets of any Covered Entity or of the Seller or Canadian Guarantorparty, or proceeds thereofincluding, to satisfy all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents and (x) any change, restructuring or termination of the corporate structure or existence of any Covered Entitywithout limitation, the SellerParent, Canadian Guarantor under any bankruptcy law, state or federal law, common law or equitable cause, then to the Performance Guarantor extent of such payment or any other Person or the equity ownership, existence, control, merger, consolidation or sale, lease or transfer of any of the assets of any such Person, or any bankruptcy, insolvency, winding up, dissolution, liquidation, receivership, assignment for the benefit of creditors, arrangement, composition, readjustment or reorganization of, or similar proceedings affecting, any Covered Entityrepayment, the Seller Obliga- tion or part thereof which had been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the Canadian Guarantor date such initial payment, reduction or any of their assets or obligationssatisfaction occurred. The Performance Guarantor Parent waives all set-offs and counterclaims and all presentments, demands of for performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices of acceptance of this Performance GuarantyAgreement. The Performance Guarantor’s Parent shall perform its obligations under and as contemplated by this Agreement without set-off or counterclaim, any such claims to be pursued independently of the Parent's performance hereunder. The Parent's obligations under this Performance Guaranty Agreement shall not be limited if the Administrative Purchase Parties or the Agent (on behalf of the Secured Parties) is are precluded for any reason (including, including without limitation, the application of the automatic stay to a Covered Entity under Section 362 of the Bankruptcy Code) from enforcing or exercising any right or remedy with respect to the Guaranteed Seller Obligations, and the Performance Guarantor Parent shall perform or observepay to the Purchase Parties and the Agent, upon demand, the Guaranteed amount of the Seller Obligations that would otherwise have been due and performable or observable by any Covered Entity payable had such right rights and remedies been permitted to be exercised. (b) Should any money due or owing under this Performance Guaranty not be recoverable from the Performance Guarantor due to any of the matters specified in this Section 2, then, in any such case, such money shall nevertheless be recoverable from the Performance Guarantor as though the Performance Guarantor were principal debtor in respect thereof and not merely a Performance Guarantor and shall be paid by the Performance Guarantor forthwith.

Appears in 1 contract

Samples: Support Agreement (Snap on Inc)

Validity of Obligations. (a) The To the fullest extent permitted by applicable law, the Performance Guarantor agrees that its obligations under this Performance Guaranty are absolute and unconditional, irrespective of: (i) the validity, enforceability, avoidance, subordination, discharge, or disaffirmance by any Person (including a trustee in bankruptcy or insolvency practitioner) of the Guaranteed Obligations, (ii) the absence of any attempt by the Administrative Agent any Secured Party (or by the Seller or Canadian GuarantorBorrower) to collect on any Pool Receivables or to realize upon any other Collateral or any other property or collateral, or to obtain performance or observance of the Guaranteed Obligations from the Covered Entities Entities, or the Seller, the Canadian Guarantor Borrower or any other Person, (iii) the any waiver, consent, amendment, modification, extension, forbearance or granting of any indulgence by the Administrative Agent any Secured Party (or by the Seller or Canadian GuarantorBorrower) with respect to any provision of any agreement or instrument evidencing the Guaranteed Obligations, (iv) any change of the time, manner or place of performance of, or in any other term of any of the Guaranteed Obligations, including, without limitation, any amendment to or modification of any of the Transaction Documents, (v) any law, rule, regulation or order of any jurisdiction affecting any term or provision of any of the Guaranteed Obligations, or rights of the Administrative Agent Secured Parties (or of the Seller or Canadian GuarantorBorrower) with respect thereto, (vi) the failure by the Administrative Agent any Secured Party (or by the Seller or Canadian GuarantorBorrower) to take any steps to perfect and maintain perfected its interest in any Collateral or other property or in any security or collateral related to the Guaranteed Obligations, (vii) any failure to obtain any consent, authorization or approval from or other action by or to notify or file with, any Governmental Authority required in connection with the performance of the obligations hereunder by the Performance Guarantor, (viii) any impossibility or impracticability of performance, illegality, force majeure, any act of government, or other circumstances which might constitute a defense available to, or a discharge of any Covered Entity or the Performance Guarantor, or any other circumstance, event or happening whatsoever whether foreseen or unforeseen and whether similar to or dissimilar to anything referred to above, (ix) any manner of application of Collateral or any other assets of any Covered Entity or of the Seller or Canadian GuarantorBorrower, or proceeds thereof, to satisfy all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents and (x) any change, restructuring or termination of the corporate structure or existence of any Covered Entity, the Seller, Canadian Guarantor Borrower or the Performance Guarantor or any other Person or the equity ownership, existence, control, merger, consolidation or sale, lease or transfer of any of the assets of any such Person, or any bankruptcy, insolvency, winding up, dissolution, liquidation, receivership, assignment for the benefit of creditors, arrangement, composition, readjustment or reorganization of, or similar proceedings affecting, any Covered Entity, the Seller the Canadian Guarantor Borrower or any of their assets or obligations. The Performance Guarantor waives all set-offs and counterclaims and all presentments, demands of performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices of acceptance of this Performance Guaranty. The Performance Guarantor’s obligations under this Performance Guaranty shall not be limited if the Administrative Agent (on behalf of the any Secured Parties) Party is precluded for any reason (including, without limitation, the application of the automatic stay to a Covered Entity under Section 362 of the Bankruptcy Code) from enforcing or exercising any right or remedy with respect to the Guaranteed Obligations, and the Performance Guarantor shall perform or observe, upon demand, the Guaranteed Obligations that would otherwise have been due and performable or observable by any Covered Entity had such right and remedies been permitted to be exercised. (b) Should any money due or owing under this Performance Guaranty not be recoverable from the Performance Guarantor due to any of the matters specified in this Section 2, then, in any such case, such money shall nevertheless be recoverable from the Performance Guarantor as though the Performance Guarantor were principal debtor in respect thereof and not merely a Performance Guarantor and shall be paid by the Performance Guarantor forthwith. The Performance Guarantor further agrees that, to the extent that any Covered Entity, the Borrower or any other Person makes a payment or payments to any Secured Party in respect of any Guaranteed Obligation, which payment or payments or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to such Covered Entity, the Borrower or other Person, as applicable, or to the estate, trustee, or receiver of any Covered Entity, the Borrower, Person or any other party, including, without limitation, the Performance Guarantor, under any bankruptcy, insolvency or similar state or federal law, common law or equitable cause, then, to the extent of such payment or repayment, the Guaranteed Obligations or any part thereof which has been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the date such initial payment, reduction or satisfaction occurred.

Appears in 1 contract

Samples: Performance Guaranty (Owens & Minor Inc/Va/)

Validity of Obligations. (a) The Performance Guarantor agrees that its obligations under this Performance Guaranty are shall be absolute and unconditional, irrespective of: of (i) the validity, enforceability, avoidance, subordination, discharge, or disaffirmance by any Person (including a trustee in bankruptcy or insolvency practitionerbankruptcy) of the Guaranteed Obligations, (ii) the absence of any attempt by the Administrative Agent (Administrator or by the Seller or Canadian Guarantor) any Purchaser to collect on any Pool Receivables or to realize upon any other Collateral or any other property or collateralReceivables, or to obtain performance or observance of the Guaranteed Obligations from the Covered Entities or the Seller, the Canadian Guarantor any applicable Originator or any other Person, (iii) the waiver, consent, amendment, modification, extension, forbearance or granting of any indulgence by the Administrative Agent (or by the Seller or Canadian Guarantor) Administrator with respect to any provision of any agreement or instrument evidencing the Guaranteed Obligations, (iv) any change of the time, manner or place of performance of, or in any other term of any of the Guaranteed Obligations, including, without limitation, any amendment to or modification of any of the Transaction Documents, (v) any law, rule, regulation or order of any jurisdiction affecting any term or provision of any of the Guaranteed Obligations, or rights of the Administrative Agent (Administrator or of the Seller or Canadian Guarantor) any Purchaser with respect thereto, (vi) the failure by the Administrative Agent (Administrator or by the Seller or Canadian Guarantor) any Purchaser to take any steps to perfect and maintain perfected its interest in any Collateral Receivable or other property or in any security or collateral related to the Guaranteed Obligations, (vii) any failure to obtain any consent, authorization or approval from or other action by or to notify or file with, any Governmental Authority governmental authority or regulatory body required in connection with the performance of the obligations hereunder by the Performance Guarantor, Guarantor or (viii) any impossibility or impracticability of performance, illegality, force majeure, any act of government, or other circumstances which might constitute a defense default available to, or a discharge of any Covered Entity Originator or the Performance Guarantor, or any other circumstance, event or happening whatsoever whether foreseen or unforeseen and whether similar to or dissimilar to anything referred to above, (ix) any manner of application of Collateral or any other assets of any Covered Entity or of the Seller or Canadian Guarantor, or proceeds thereof, to satisfy all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents and (x) any change, restructuring or termination of the corporate structure or existence of any Covered Entity, the Seller, Canadian Guarantor or the Performance Guarantor or any other Person or the equity ownership, existence, control, merger, consolidation or sale, lease or transfer of any of the assets of any such Person, or any bankruptcy, insolvency, winding up, dissolution, liquidation, receivership, assignment for the benefit of creditors, arrangement, composition, readjustment or reorganization of, or similar proceedings affecting, any Covered Entity, the Seller the Canadian Guarantor or any of their assets or obligations. The Performance Guarantor waives all set-offs and counterclaims and all presentments, demands of performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices of acceptance of this Performance Guaranty. The Performance Guarantor’s obligations under this Performance Guaranty shall not be limited if the Administrative Agent (on behalf of the Secured Parties) Administrator or any Purchaser is precluded for any reason (including, without limitation, the application of the automatic stay to a Covered Entity under Section 362 of the Bankruptcy Code) from enforcing or exercising any right or remedy with respect to the Guaranteed Obligations, and the Performance Guarantor shall perform or observe, upon demand, the Guaranteed Obligations that would otherwise have been due and performable or observable by any Covered Entity had such right and remedies been permitted to be exercised. (b) Should any money due or owing under this Performance Guaranty not be recoverable from the Performance Guarantor due to any of the matters specified in this Section 2, then, in any such case, such money shall nevertheless be recoverable from the Performance Guarantor as though the Performance Guarantor were principal debtor in respect thereof and not merely a Performance Guarantor and shall be paid by the Performance Guarantor forthwith.Guaranteed

Appears in 1 contract

Samples: Omnibus Amendment to Purchase and Sale Agreement, Receivables Purchase Agreement, and Performance Guaranty (Cooper Tire & Rubber Co)

Validity of Obligations. (a) The Performance Guarantor Support Provider agrees that its obligations under this Performance Guaranty are absolute and Agreement shall be unconditional, irrespective of: of (i) the validity, enforceability, avoidance, subordination, discharge, or disaffirmance by any Person (including a trustee in bankruptcy or insolvency practitionerbankruptcy) of the Guaranteed Obligations, (ii) the absence of any attempt by the Administrative Agent (or by the Seller or Canadian Guarantor) to collect on any Pool Receivables or to realize upon any other Collateral or any other property or collateralCollections from the Obligor related thereto, or to obtain performance or observance of collect the Guaranteed Obligations from the Covered Entities or the Seller, the Canadian Guarantor UDS Transaction Parties or any other Person, (iii) the waiver, consent, amendment, modification, extension, forbearance or granting of any indulgence by any Purchaser, the Administrative Agent (or by the Seller or Canadian Guarantor) any other Person with respect to any provision of any agreement or instrument evidencing the Guaranteed Obligations, (iv) any change of the time, manner or place of performance of, or in any other term of any of the Guaranteed Obligations, including, including without limitation, any amendment to or modification of any of the Transaction DocumentsDocument, (v) any law, rule, regulation or order of any jurisdiction affecting any term or provision of any of the Guaranteed Obligations, or rights of any of the Purchasers, the Administrative Agent (or of the Seller or Canadian Guarantor) any other Person with respect thereto, (vi) the failure by any of the Purchasers, the Administrative Agent (or by the Seller or Canadian Guarantor) any other Person to take any steps to perfect and maintain perfected its respective interest in any Collateral Receivable or any Receivables Assets or other property acquired by it pursuant to any of the Transaction Documents or in any security or collateral related to the Guaranteed ObligationsObligations (vii) any exchange or release of any Receivable or any Receivables Assets or other property acquired by any Purchaser, the Administrative Agent or any other Person pursuant to any of the Transaction Documents, (viiviii) any failure to obtain any consent, authorization or approval from or other action by or to notify or file with, any Governmental Authority governmental authority or regulatory body required in connection with the performance of the obligations hereunder by the Performance Guarantor, Support Provider or (viiiix) any impossibility or impracticability of performance, illegality, force majeure, any act of government, or other circumstances which might constitute a defense default available to, or a discharge of any Covered Entity the UDS Transaction Parties or the Performance GuarantorSupport Provider, or any other circumstance, event or happening whatsoever whether foreseen or unforeseen and whether similar to or dissimilar to anything referred to above. The Support Provider further agrees that its obligations under this Agreement shall not be limited to any valuation, (ix) estimation or disallowance made in connection with any manner proceedings involving any of application the UDS Transaction Parties filed under the Bankruptcy Code, whether pursuant to Section 502 of Collateral the Bankruptcy Code or any other assets of any Covered Entity or Section thereof. The Support Provider further agrees that none of the Seller Purchasers, the Administrative Agent or Canadian Guarantor, or proceeds thereof, to satisfy all or any other Person under any of the Guaranteed Obligations Transaction Documents shall be under any obligation to marshall any assets in favor of or as otherwise permitted against or in payment ox xxx or all of the Obligations. The Support Provider further agrees that, to the extent that any Transaction Party makes a payment or payments to any of the Purchasers, the Administrative Agent or any other Person under any of the Transaction Documents, which payment or payments (or any manner of sale part thereof) are subsequently invalidated, declared to be fraudulent or other disposition of any collateral for all preferential, set aside and/or required to be repaid to such Transaction Party, its estate, trustee or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents and (x) any change, restructuring or termination of the corporate structure or existence of any Covered Entity, the Seller, Canadian Guarantor or the Performance Guarantor receiver or any other Person party, including, without limitation, the Support Provider, under any bankruptcy law, state or federal law, common law or equitable cause, then to the equity ownershipextent of such payment or repayment, existencethe Obligation or part thereof which had been paid, control, merger, consolidation reduced or sale, lease or transfer of any satisfied by such amount shall be reinstated and continued in full force and effect as of the assets of any date such Personinitial payment, reduction or any bankruptcy, insolvency, winding up, dissolution, liquidation, receivership, assignment for the benefit of creditors, arrangement, composition, readjustment or reorganization of, or similar proceedings affecting, any Covered Entity, the Seller the Canadian Guarantor or any of their assets or obligationssatisfaction occurred. The Performance Guarantor Support Provider waives all set-offs and counterclaims and all presentments, demands of for performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices of acceptance of this Performance GuarantyAgreement. The Performance Guarantor’s Support Provider's obligations under this Performance Guaranty Agreement shall not be limited if any Purchaser, the Administrative Agent (on behalf of the Secured Parties) or any other Person is precluded for any reason (including, including without limitation, the application of the automatic stay to a Covered Entity under Section 362 of the Bankruptcy Code) from enforcing or exercising any right or remedy with respect to the Guaranteed Obligations, and the Performance Guarantor Support Provider shall perform pay to such Purchaser, the Administrative Agent or observesuch other Person, as applicable, upon demand, the Guaranteed amount of the Obligations that would otherwise have been due and performable or observable by any Covered Entity payable had such right rights and remedies been permitted to be exercised. (b) Should any money due or owing under this Performance Guaranty not be recoverable from the Performance Guarantor due to any of the matters specified in this Section 2, then, in any such case, such money shall nevertheless be recoverable from the Performance Guarantor as though the Performance Guarantor were principal debtor in respect thereof and not merely a Performance Guarantor and shall be paid by the Performance Guarantor forthwith.

Appears in 1 contract

Samples: Performance Support Agreement (Ultramar Diamond Shamrock Corp)

Validity of Obligations. (a) The Performance Guarantor agrees that its obligations under this Performance Guaranty are shall be absolute and unconditional, irrespective of: (i) the validity, enforceability, avoidance, subordination, discharge, or disaffirmance by any Person (including a trustee in bankruptcy or insolvency practitionerbankruptcy) of the Guaranteed Obligations, (ii) the absence of any attempt by the Administrative Agent (Administrator, any Purchaser Agent, any Purchaser or by the Seller or Canadian Guarantor) SPV to collect on any Pool Receivables or to realize upon any other Collateral or any other property or collateralReceivables, or to obtain performance or observance of the Guaranteed Obligations from the Covered Entities or the Seller, the Canadian Guarantor OC Sales or any other Person, (iii) the waiver, consent, amendment, modification, extension, forbearance or granting of any indulgence by the Administrative Agent (Administrator, any Purchaser Agent, any Purchaser or by the Seller or Canadian Guarantor) SPV with respect to any provision of any agreement or instrument evidencing the Guaranteed Obligations, (iv) any change of the time, manner or place of performance of, or in any other term of any of the Guaranteed Obligations, including, without limitation, any amendment to or modification of any of the Transaction Documents, (v) any law, rule, regulation or order of any jurisdiction affecting any term or provision of any of the Guaranteed Obligations, or rights of the Administrative Agent (Administrator, any Purchaser Agent, any Purchaser or of the Seller or Canadian Guarantor) SPV with respect thereto, (vi) the failure by the Administrative Agent (Administrator, any Purchaser Agent, any Purchaser or by the Seller or Canadian Guarantor) SPV to take any steps to perfect and maintain perfected its interest in any Collateral Receivable or other property or in any security or collateral related to the Guaranteed Obligations, (vii) any failure to obtain any consent, authorization or approval from or other action by or to notify or file with, any Governmental Authority governmental authority or regulatory body required in connection with the performance of the obligations hereunder by the Performance Guarantor, (viii) any impossibility or impracticability of performance, illegality, force majeure, any act of government, or other circumstances which might constitute a defense default available to, or a discharge of any Covered Entity OC Sales, the SPV or the Performance Guarantor, or any other circumstance, event or happening whatsoever whether foreseen or unforeseen and whether similar to or dissimilar to anything referred to above, (ix) any manner of application of Collateral collateral or any other assets of any Covered Entity OC Sales or of the Seller or Canadian GuarantorSPV, or proceeds thereof, to satisfy all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents Documents, and (x) any change, restructuring or termination of the corporate structure or existence of any Covered EntityOC Sales, the SellerSPV, Canadian Guarantor or the Performance Guarantor or any other Person or the equity ownership, existence, control, merger, consolidation or sale, lease or transfer of any of the assets of any such Person, or any bankruptcy, insolvency, winding up, dissolution, liquidation, receivership, assignment for the benefit of creditors, arrangement, composition, readjustment or reorganization of, or similar proceedings affecting, any Covered EntityOC Sales, the Seller the Canadian Guarantor SPV or any of their assets or obligations. The Performance Guarantor waives all set-offs and counterclaims and all presentments, demands of performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices of acceptance of this Performance Guaranty. The Performance Guarantor’s obligations under this Performance Guaranty shall not be limited if the Administrative Administrator, any Purchaser Agent (on behalf of the Secured Parties) or any Purchaser is precluded for any reason (including, without limitation, the application of the automatic stay to a Covered Entity under Section 362 of the Bankruptcy Code) from enforcing or exercising any right or remedy with respect to the Guaranteed Obligations, and the Performance Guarantor shall perform or observe, upon demand, the Guaranteed Obligations that would otherwise have been due and performable or observable by any Covered Entity OC Sales had such right and remedies been permitted to be exercised. (b) Should any money due or owing under this Performance Guaranty not be recoverable from the Performance Guarantor due to any of the matters specified above in this Section 22(a), then, in any such case, such money shall nevertheless be recoverable from the Performance Guarantor as though the Performance Guarantor were principal debtor in respect thereof and not merely a Performance Guarantor guarantor and shall be paid by the Performance Guarantor forthwith. The Performance Guarantor further agrees that, to the extent that any Person makes a payment or payments to the Administrator, any Purchaser Agent or any Purchaser in respect of any Guaranteed Obligation, which payment or payments or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to such Person or to the estate, trustee, or receiver of such Person or to any other party, including, without limitation, the Performance Guarantor, under any bankruptcy, insolvency or similar state or federal law, common law or equitable cause, then, to the extent of such payment or repayment, the Guaranteed Obligations or any part thereof which has been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the date such initial payment, reduction or satisfaction occurred.

Appears in 1 contract

Samples: Performance Guaranty (Owens Corning)

Validity of Obligations. (a) The Performance Guarantor agrees that its obligations under this Performance Guaranty are absolute and unconditional, irrespective of: (i) the validity, enforceability, avoidance, subordination, discharge, or disaffirmance by any Person (including a trustee in bankruptcy or insolvency practitioner) of the Guaranteed Obligations, (ii) the absence of any attempt by the Administrative Agent any Secured Party (or by the Seller or Canadian GuarantorSPV) to collect on any Pool Receivables or to realize upon any other Collateral or any other property or collateral, or to obtain performance or observance of the Guaranteed Obligations from the Covered Entities or the Seller, the Canadian Guarantor SPV or any other Person, (iii) the any waiver, consent, amendment, modification, extension, forbearance or granting of any indulgence by the Administrative Agent any Secured Party (or by the Seller or Canadian GuarantorSPV) with respect to any provision of any agreement or instrument evidencing the Guaranteed Obligations, (iv) any change of the time, manner or place of performance of, or in any other term of any of the Guaranteed Obligations, including, without limitation, any amendment to or modification of any of the Transaction Documents, (v) any law, rule, regulation or order of any jurisdiction affecting any term or provision of any of the Guaranteed Obligations, or rights of the Administrative Agent Secured Parties (or of the Seller or Canadian GuarantorSPV) with respect thereto, (vi) the failure by the Administrative Agent any Secured Party (or by the Seller or Canadian GuarantorSPV) to take any steps to perfect and maintain perfected its interest in any Collateral or other property or in any security or collateral related to the Guaranteed Obligations, (vii) any failure to obtain any consent, authorization or approval from or other action by or to notify or file with, any Governmental Authority required in connection with the performance of the obligations hereunder by the Performance Guarantor, (viii) any impossibility or impracticability of performance, illegality, force majeure, any act of government, or other circumstances which might constitute a defense available to, or a discharge of any Covered Entity or the Performance Guarantor, or any other circumstance, event or happening whatsoever whether foreseen or unforeseen and whether similar to or dissimilar to anything referred to above, (ix) any manner of application of Collateral or any other assets of any Covered Entity or of the Seller or Canadian GuarantorSPV, or proceeds thereof, to satisfy all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents and (x) any change, restructuring or termination of the corporate structure or existence of any Covered Entity, the Seller, Canadian Guarantor SPV or the Performance Guarantor or any other Person or the equity ownership, existence, control, merger, consolidation or sale, lease or transfer of any of the assets of any such Person, or any bankruptcy, insolvency, winding up, dissolution, liquidation, receivership, assignment for the benefit of creditors, arrangement, composition, readjustment or reorganization of, or similar proceedings affecting, any Covered Entity, the Seller the Canadian Guarantor SPV or any of their assets or obligations. The Performance Guarantor waives all set-offs and counterclaims and all presentments, demands of performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices of acceptance of this Performance Guaranty. The Performance Guarantor’s obligations under this Performance Guaranty shall not be limited if the Administrative Agent (on behalf of the any Secured Parties) 747530762 22708133 3 Party is precluded for any reason (including, without limitation, the application of the automatic stay to a Covered Entity under Section 362 of the Bankruptcy Code) from enforcing or exercising any right or remedy with respect to the Guaranteed Obligations, and the Performance Guarantor shall perform or observe, upon demand, the Guaranteed Obligations that would otherwise have been due and performable or observable by any Covered Entity had such right and remedies been permitted to be exercised. (b) Should any money due or owing under this Performance Guaranty not be recoverable from the Performance Guarantor due to any of the matters specified in this Section 2, then, in any such case, such money shall nevertheless be recoverable from the Performance Guarantor as though the Performance Guarantor were principal debtor in respect thereof and not merely a Performance Guarantor guarantor and shall be paid by the Performance Guarantor forthwith. The Performance Guarantor further agrees that, to the extent that any Covered Entity, the SPV or any other Person makes a payment or payments to any Secured Party in respect of any Guaranteed Obligation, which payment or payments or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to such Covered Entity, the SPV or other Person, as applicable, or to the estate, trustee, or receiver of any Covered Entity, the Performance Guarantor, the SPV or any other party, including, without limitation, the Performance Guarantor, under any bankruptcy, insolvency or similar state or federal law, common law or equitable cause, then, to the extent of such payment or repayment, the Guaranteed Obligations or any part thereof which has been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the date such initial payment, reduction or satisfaction occurred.

Appears in 1 contract

Samples: Performance Guaranty (Worthington Industries Inc)

Validity of Obligations. (a) The Performance Guarantor agrees that its obligations under this Performance Guaranty are shall be absolute and unconditional, irrespective of: of (i) the validity, enforceability, avoidance, subordination, discharge, discharge or disaffirmance by any Person (including a trustee in bankruptcy or insolvency practitionerbankruptcy) of the Guaranteed Obligations, (ii) the absence of any attempt by the Administrative Agent (Agent, any Purchaser or by the Seller or Canadian Guarantor) SPV to collect on any Pool Receivables or to realize upon any other Collateral or any other property or collateralReceivables, or to obtain performance or observance of the Guaranteed Obligations from the any Covered Entities or the Seller, the Canadian Guarantor Entity or any other Person, (iii) the waiver, consent, amendment, modification, extension, forbearance or granting of any indulgence by the Administrative Agent (Agent, any Purchaser or by the Seller or Canadian Guarantor) SPV with respect to any provision of any agreement or instrument evidencing the Guaranteed Obligations, (iv) any change of the time, manner or place of performance of, or in any other term or provision of any of the Guaranteed Obligations, including, without limitation, any amendment to or modification of any of the Transaction Documents, (v) any law, rule, regulation or order of any jurisdiction affecting any term or provision of any of the Guaranteed Obligations, or rights of the Administrative Agent (Agent, any Purchaser or of the Seller or Canadian Guarantor) SPV with respect thereto, (vi) the failure by the Administrative Agent (Agent, any Purchaser or by the Seller or Canadian Guarantor) SPV to take any steps to perfect and maintain perfected its interest in any Receivable, the Collateral or any portion thereof or other property or in any security or collateral related to the Guaranteed Obligations, (vii) any failure to obtain any consent, authorization or approval from or other action by or to notify or file with, any Governmental Authority required in connection with the 714478069 14453709 3 performance of the obligations hereunder by the Performance Guarantor, (viii) any impossibility or impracticability of performance, illegality, force majeure, any act of government, or other circumstances which might constitute a defense available to, or a discharge of any Covered Entity or the Performance Guarantor, or any other circumstance, event or happening whatsoever whether foreseen or unforeseen and whether similar to or dissimilar to anything referred to above, (ix) any manner of application of Collateral or any other assets of any Covered Entity or of the Seller or Canadian GuarantorSPV, or proceeds thereof, to satisfy all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents, or any manner of sale or other disposition of any collateral Collateral for all or any of the Guaranteed Obligations or as otherwise permitted under the Transaction Documents and (x) any change, restructuring or termination of the corporate structure or existence of any Covered Entity, the Seller, Canadian Guarantor or the Performance Guarantor or any other Person or the equity ownership, existence, control, merger, consolidation or sale, lease or transfer of any of the assets of any such Person, or any bankruptcy, insolvency, winding up, dissolution, liquidation, receivership, assignment for the benefit of creditors, arrangement, composition, readjustment or reorganization of, or similar proceedings affecting, any Covered Entity, the Seller the Canadian Guarantor SPV or any of their assets or obligations. The Performance Guarantor waives all set-offs and counterclaims and all presentments, demands of performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices of acceptance of this Performance Guaranty. The Performance Guarantor’s obligations under this Performance Guaranty shall not be limited if the Administrative Agent (on behalf of the Secured Parties) or any Purchaser is precluded for any reason (including, without limitation, the application of the automatic stay to a Covered Entity under Section 362 of the Bankruptcy Code) from enforcing or exercising any right or remedy with respect to the Guaranteed Obligations, and the Performance Guarantor shall perform or observe, upon demand, the Guaranteed Obligations that would could otherwise have been due and performable or observable by any Covered Entity had such right and remedies been permitted to be exercised. (b) Should any money due or owing under this Performance Guaranty not be recoverable from the Performance Guarantor due to any of the matters specified above in this Section 22(a), then, in any such case, such money shall nevertheless be recoverable from the Performance Guarantor as though the Performance Guarantor were a principal debtor in respect thereof and not merely a Performance Guarantor guarantor and shall be paid by the Performance Guarantor forthwith.

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Samples: Performance Guaranty (Mallinckrodt PLC)