Guarantee. i. The Guarantor hereby unconditionally and irrevocably guarantees to the Purchaser and its successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations. ii. Anything herein or in any of the other Agreements to the contrary notwithstanding, the maximum liability of the Guarantor hereunder and under the other Agreements shall in no event exceed the amount which can be guaranteed by the Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally. iii. The Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of the Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser hereunder. iv. The guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations and the obligations of the Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full. v. No payment made by the Company, the Guarantor or any other Person or received or collected by the Purchaser from the Company, the Guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the Guarantor in respect of the Obligations or any payment received or collected from the Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder until the Obligations are paid in full. vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 4 contracts
Sources: Parent Guarantee, Purchase Agreement (Polymet Mining Corp), Parent Guarantee (Polymet Mining Corp)
Guarantee. i. (a) The Guarantor hereby unconditionally and irrevocably irrevocably, guarantees to the Purchaser Administrative Agent, for the ratable benefit of the Lenders, and its their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations.
ii. (b) Anything herein or in any of the other Agreements Loan Document to the contrary notwithstanding, the maximum liability of the Guarantor hereunder and under the other Agreements Loan Documents shall in no event exceed the amount which can be guaranteed by the Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii. (c) The Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of the Guarantor hereunder without impairing the guarantee contained in this Section 2 7 or affecting the rights and remedies of the Purchaser Administrative Agent or any Lender hereunder.
iv. (d) The guarantee contained in this Section 2 7 shall remain in full force and effect until all the Obligations (other than contingent indemnification obligations for which no claim has been made) and the obligations of the Guarantor under the guarantee contained in this Section 2 7 shall have been satisfied by payment in fullfull and the Commitments shall be terminated, notwithstanding that from time to time during the term of this Agreement the Borrower may be free from any Obligations.
v. (e) No payment made by the CompanyBorrower, the Guarantor or any other Person or received or collected by the Purchaser Administrative Agent or any Lender from the CompanyBorrower, the Guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the Guarantor in respect of the Obligations or any payment received or collected from the Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder until the Obligations are paid in fullfull and the Commitments are terminated.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 4 contracts
Sources: Credit Agreement (Investment Technology Group, Inc.), Credit Agreement (Investment Technology Group, Inc.), Credit Agreement (Investment Technology Group, Inc.)
Guarantee. i. (a) The Guarantor hereby unconditionally and irrevocably guarantees to the Purchaser Loan Agent, for the ratable benefit of the Lenders and its their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company Borrowers when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations.
ii. (b) Anything herein or in any of the other Agreements Loan Document to the contrary notwithstanding, the maximum liability of the Guarantor hereunder and under the other Agreements Loan Documents shall in no event exceed the amount which can be guaranteed by the Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii. (c) The Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of the Guarantor hereunder without impairing the guarantee contained in this Section 2 Article VIII or affecting the rights and remedies of the Purchaser Loan Agent or any Lender hereunder.
iv. (d) The guarantee contained in this Section 2 Article VIII shall remain in full force and effect until all the Obligations and the obligations of the Guarantor under the guarantee (including contingent Obligations contained in this Section 2 any Loan Document that survive the termination thereof) shall have been satisfied by payment in fullfull and the Commitments shall be terminated.
v. (e) No payment made by either Borrower or the CompanyGuarantor, the Guarantor any other guarantor or any other Person or received or collected by the Purchaser Loan Agent or any Lender from the Companyeither Borrower, the Guarantor Guarantor, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the Guarantor in respect of the Obligations or any payment received or collected from the such Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder until the Obligations are paid in fullfull and the Commitments are terminated.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 4 contracts
Sources: Loan Agreement (Us Airways Group Inc), Loan Agreement (Us Airways Group Inc), Loan Agreement (Us Airways Group Inc)
Guarantee. i. The Guarantor hereby (a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably guarantees irrevocably, guarantees, as primary obligor and not merely as surety, to the Purchaser and its successorsAdministrative Agent, indorsees, transferees and assignsfor the ratable benefit of the Guaranteed Parties, the prompt and complete payment payment, and not collection, and performance by the Company Company, each Subsidiary Borrower, each Ancillary Borrower and each Applicable Account Party, as applicable, when due (whether at the stated maturity, by acceleration or otherwise) and at all times thereafter, of the all Guaranteed Obligations.
ii. (b) Anything herein or in any of the other Agreements Loan Document or any Ancillary Facility Document to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder and under the other Agreements shall in no event exceed the amount which can be guaranteed by the such Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting debtors (after giving effect to the rights right of creditors generallycontribution established in Section 2.2).
iii. The (c) Each Guarantor agrees that the Guaranteed Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser Guaranteed Parties hereunder.
iv. (d) The guarantee contained in this Section 2 shall remain in full force and effect until all the Guaranteed Obligations and the obligations of the Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment paid in full, notwithstanding that from time to time during the term of the Credit Agreement, the Company and/or one or more of the Subsidiary Borrowers, any Ancillary Borrower or any Applicable Account Party may be free from any Guaranteed Obligations.
v. (e) No payment made by the Company, any Subsidiary Borrower, any Ancillary Borrower, any Applicable Account Party, any of the Guarantor Guarantors, any other guarantor or any other Person or received or collected by the Purchaser any Guaranteed Party from the Company, any Subsidiary Borrower, any Ancillary Borrower, any Applicable Account Party, any of the Guarantor Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Guaranteed Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Guaranteed Obligations or any payment received or collected from the such Guarantor in respect of the Guaranteed Obligations), remain liable for the Guaranteed Obligations up to the maximum liability of the such Guarantor hereunder until the Guaranteed Obligations are paid in full.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 3 contracts
Sources: Revolving Credit Agreement (General Motors Financial Company, Inc.), 3 Year Revolving Credit Agreement (General Motors Financial Company, Inc.), 3 Year Revolving Credit Agreement (General Motors Financial Company, Inc.)
Guarantee. i. (a) The Guarantor hereby hereby, jointly and severally, unconditionally and irrevocably irrevocably, guarantees to the Purchaser Administrative Agent, for the ratable benefit of the Lenders and its their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company Borrowers when due (whether at the stated maturity, by acceleration or otherwise) of the Borrower Obligations.
ii. (b) Anything herein or in any of the other Agreements to the contrary notwithstanding, the maximum liability of the Guarantor hereunder and under the other Agreements shall in no event exceed the amount which can be guaranteed by the Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting debtors (after giving effect to the rights right of creditors generallysubrogation and contribution established in Section 8.02).
iii. (c) The Guarantor agrees that the Borrower Obligations may at any time and from time to time exceed the amount of the liability of the Guarantor hereunder without impairing the guarantee contained in this Section 2 Article VIII or affecting the rights and remedies of the Purchaser Administrative Agent or any Lender hereunder.
iv. (d) The guarantee contained in this Section 2 Article VIII shall remain in full force and effect until all the Borrower Obligations and the obligations of the Guarantor under the guarantee contained in this Section 2 Article VIII shall have been satisfied by payment in fullfull and the Commitments shall have been terminated, notwithstanding that from time to time during the term of this Agreement a Borrower may be free from any Borrower Obligations.
v. (e) No payment made by the CompanyBorrowers, the Guarantor Guarantor, any other guarantor or any other Person or received or collected by the Purchaser Administrative Agent or any Lender from the CompanyBorrowers, the Guarantor Guarantor, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the Guarantor in respect of the Borrower Obligations or any payment received or collected from the Guarantor in respect of the Borrower Obligations), remain liable for the Borrower Obligations up to the maximum liability of the Guarantor hereunder until the Borrower Obligations are paid in full.
vifull and the Commitments are terminated. Notwithstanding anything The provisions of Section 2.14 and 2.16 shall apply to the contrary in Guarantor under this Agreement, Article VIII (with respect appropriate changes therein to any defaulted non-monetary Obligations the specific performance of which by refer to the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stockas necessary), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 3 contracts
Sources: Credit Agreement (Eaton Vance Corp), Credit Agreement (Eaton Vance Corp), Credit Agreement (Eaton Vance Corp)
Guarantee. i. (a) The Guarantor hereby expressly, absolutely, unconditionally and irrevocably guarantees (the “Guarantee”) to the Purchaser and its successors, indorsees, transferees and assignsHolders, the prompt due, punctual and complete performance when required of all payment and performance by obligations of the Company when under this Agreement (the “Obligations”). The Guarantee is in no way conditioned upon any requirement that the Holders first attempt to collect the Obligations from the Company or resort to any security or other means of collecting payment. Should the Company default in the due (whether at the stated maturity, by acceleration and punctual payment or otherwise) performance of the Obligations.
ii. Anything herein or in any of , the other Agreements Guarantor’s obligations hereunder shall become immediately due and payable to the contrary notwithstanding, the maximum liability of Holders. All sums payable by the Guarantor hereunder shall be made in immediately available funds in U.S. Dollars. The Holders may, in their sole discretion, bring and under the other Agreements shall in no event exceed the amount which can be guaranteed by prosecute a separate action or actions against the Guarantor under applicable federal and state laws, including laws relating to for the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii. The Guarantor agrees that the Obligations may at any time and from time to time exceed the full amount of the liability Obligations regardless of whether any action is brought against the Guarantor hereunder without impairing Company or any other person or whether the guarantee contained Company or any other person is joined in this Section 2 any such action or affecting the rights and remedies of the Purchaser hereunderactions.
iv. The guarantee contained in this Section 2 (b) In the event that the Company becomes subject to a bankruptcy, reorganization or similar proceeding, (i) the Holders shall remain in full force and effect until all not be obligated to file any claim relating to the Obligations and the obligations failure of the Holders to so file shall not affect the Guarantor’s obligations hereunder, and (ii) the Obligations shall not be affected or delayed by any such proceeding. In the event that any payment to the Holders in respect of any Obligations is rescinded or must otherwise be returned or reduced for any reason whatsoever, this Guarantee shall continue to be effective or be reinstated, as the case may be, and the Guarantor under the shall remain liable hereunder with respect to such Obligations as if such payment had not been made. This is an unconditional guarantee contained in this Section 2 shall have been satisfied by of payment in fullfrom Guarantor and not of collection.
v. No payment made by (c) In the Company, event that the Guarantor consolidates with or merges into any other Person (as defined in the Merger Agreement) or received conveys, transfers or collected by the Purchaser from the Company, the Guarantor or leases its properties and assets substantially as an entirety to any other Person, such other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of shall assume the Obligations at the time of such consolidation, merger or sale, and shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the Guarantor in respect of the Obligations or any payment received or collected from the Guarantor in respect of the Obligations), remain liable for the Obligations up promptly provide evidence to the maximum liability Holders of the Guarantor hereunder until the Obligations are paid in fullsuch assumption.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 3 contracts
Sources: Contingent Cash Consideration Agreement (Teva Pharmaceutical Industries LTD), Contingent Cash Consideration Agreement (Nupathe Inc.), Contingent Cash Consideration Agreement (Nupathe Inc.)
Guarantee. i. The Guarantor hereby (a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably irrevocably, guarantees to the Purchaser Administrative Agent, for the ratable benefit of the Lenders and its their respective successors, indorsees, transferees and assignsassigns permitted hereunder, the prompt and complete payment and performance by the Company Borrower (or, in the case of any Specified Letter of Credit, the relevant Group Member(s)) when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations.;
ii. (b) Anything herein or in any of the other Agreements Loan Document to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder under this Section 10.1 and under the other Agreements Loan Documents shall in no event exceed the amount which can be guaranteed by the Guarantor is permitted under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii. The (c) Each Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 10 or affecting the rights and remedies of the Purchaser Administrative Agent or any Lender hereunder.
iv. (d) The guarantee contained in this Section 2 10 shall remain in full force and effect until all the Obligations and the obligations of the each Guarantor under the guarantee contained in this Section 2 10 shall have been satisfied by payment in fullfull (other than unasserted contingent obligations) and the Commitments shall be terminated.
v. (e) No payment made by the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person or received or collected by the Purchaser Administrative Agent or any Lender from the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Obligations or any payment received or collected from the such Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the such Guarantor hereunder until the Obligations are paid in fullfull (other than unasserted contingent obligations) and the Commitments are terminated.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 3 contracts
Sources: Credit and Guarantee Agreement (Lear Corp), Credit and Guarantee Agreement (Lear Corp), Credit and Guarantee Agreement
Guarantee. i. The Guarantor (a) Each of CFC and CHL (each, a “Guarantor”) hereby unconditionally and irrevocably guarantees to the Purchaser Managing Administrative Agent, for the ratable benefit of the Lenders and its their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company other when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations of the other hereunder (with respect to such Guarantor, the “Borrower Obligations”).
ii. (b) Anything herein or in any of the other Agreements Loan Document to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder and under the other Agreements Loan Documents shall in no event exceed the amount which can be guaranteed by the such Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting debtors (after giving effect to the rights right of creditors generallycontribution established in Section 8.02).
iii. The (c) Each Guarantor agrees that the Borrower Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 Article VIII or affecting the rights and remedies of the Purchaser Managing Administrative Agent or any Lender hereunder.
iv. (d) The guarantee contained in this Section 2 Article VIII shall remain in full force and effect until until, subject to reinstatement pursuant to Section 8.05, all the Borrower Obligations and the obligations of the each Guarantor under the guarantee contained in this Section 2 Article VIII shall have been satisfied by payment in fullfull and the Commitments shall be terminated, notwithstanding that from time to time during the term of this Agreement the Borrower may be free from any Borrower Obligations.
v. (e) No payment made by the CompanyBorrower, the Guarantor a Guarantor, any other guarantor or any other Person or received or collected by the Purchaser Managing Administrative Agent or any Lender from the CompanyBorrower, the Guarantor a Guarantor, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the relevant Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Borrower Obligations or any payment received or collected from the such Guarantor in respect of the Borrower Obligations), remain liable for the Borrower Obligations up to the maximum liability of the such Guarantor hereunder until until, subject to reinstatement pursuant to Section 8.05, the Borrower Obligations are paid in fullfull and the Commitments are terminated.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 3 contracts
Sources: Credit Agreement (Countrywide Financial Corp), 364 Day Credit Agreement (Countrywide Financial Corp), 364 Day Credit Agreement (Countrywide Financial Corp)
Guarantee. i. The Guarantor hereby (a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably irrevocably, guarantees to the Purchaser Administrative Agent, for the ratable benefit of the Guaranteed Parties and its their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Borrower Obligations.
ii. (b) Anything herein or in any of the other Agreements Loan Document to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder and under the other Agreements Loan Documents shall in no event exceed the amount which can be guaranteed by the such Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting debtors (after giving effect to the rights right of creditors generallycontribution established in Section 2.2).
iii. The (c) Each Guarantor agrees that the Borrower Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser Administrative Agent or any Lender hereunder.
iv. (d) The guarantee contained in this Section 2 shall remain in full force and effect until all the Borrower Obligations and the obligations of the each Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full, no Letter of Credit shall be outstanding and the Commitments shall be terminated, notwithstanding that from time to time during the term of the Credit Agreement the Borrower may be free from any Borrower Obligations.
v. (e) No payment made by the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person or received or collected by the Purchaser Administrative Agent or any Lender from the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Borrower Obligations or any payment received or collected from the such Guarantor in respect of the Borrower Obligations), remain liable for the Borrower Obligations up to the maximum liability of the such Guarantor hereunder until the Borrower Obligations are paid in full, no Letter of Credit shall be outstanding and the Commitments are terminated.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 3 contracts
Sources: Credit Agreement (AV Homes, Inc.), Guarantee Agreement (M I Homes Inc), Credit Agreement (Universal Health Services Inc)
Guarantee. i. The Guarantor hereby (a) Subject to the provisions of Section 2(b), each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably irrevocably, guarantees to the Purchaser Administrative Agent, for the ratable benefit of the Lenders and its the Issuing Lender and their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations.
ii. (b) Anything herein or in any of the other Agreements Loan Document to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder and under the other Agreements Loan Documents shall in no event exceed the amount which can be guaranteed by the such Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii(c) Each Guarantor further agrees to pay any and all expenses (including, without limitation, all fees and disbursements of counsel) which may be paid or incurred by the Administrative Agent or any Lender in enforcing, or obtaining advice of counsel in respect of, any rights with respect to, or collecting, any or all of the Obligations and/or enforcing any rights with respect to, or collecting against, such Guarantor under this Guarantee. The This Guarantee shall remain in full force and effect until the Obligations are paid in full and the Commitments are terminated, notwithstanding that from time to time prior thereto the Borrower may be free from any Obligations.
(d) Each Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 Guarantee or affecting the rights and remedies of the Purchaser Administrative Agent or any Lender or the Issuing Lender hereunder.
iv. The guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations and the obligations of the Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full.
v. (e) No payment or payments made by the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person or received or collected by the Purchaser Administrative Agent or any Lender from the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (or payments other than any payment payments made by the such Guarantor in respect of the Obligations or any payment payments received or collected from the such Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the such Guarantor hereunder until the Obligations are paid in fullfull and the Commitments are terminated.
vi. Notwithstanding anything (f) Each Guarantor agrees that whenever, at any time, or from time to time, it shall make any payment to the contrary Administrative Agent or any Lender or the Issuing Lender on account of its liability hereunder, it will notify the Administrative Agent in writing that such payment is made under this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable Guarantee for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreementspurpose.
Appears in 3 contracts
Sources: Credit Agreement (Denali Inc), Subsidiaries Guarantee (Unidigital Inc), Guarantee (Denali Inc)
Guarantee. i. The Guarantor (a) Each of CHL and CFC (each, a "Guarantor") hereby unconditionally and irrevocably guarantees to the Purchaser Managing Administrative Agent, for the ratable benefit of the Lenders and its their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company other when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations of the other hereunder (with respect to such Guarantor, the "Borrower Obligations").
ii. (b) Anything herein or in any of the other Agreements Loan Document to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder and under the other Agreements Loan Documents shall in no event exceed the amount which can be guaranteed by the such Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting debtors (after giving effect to the rights right of creditors generallycontribution established in Section 8.02).
iii. The (c) Each Guarantor agrees that the Borrower Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 Article VIII or affecting the rights and remedies of the Purchaser Managing Administrative Agent or any Lender hereunder.
iv. (d) The guarantee contained in this Section 2 Article VIII shall remain in full force and effect until until, subject to reinstatement pursuant to Section 8.05, all the Borrower Obligations and the obligations of the each Guarantor under the guarantee contained in this Section 2 Article VIII shall have been satisfied by payment in fullfull and the Commitments shall be terminated, notwithstanding that from time to time during the term of this Agreement the Borrower may be free from any Borrower Obligations.
v. (e) No payment made by the CompanyBorrower, the Guarantor a Guarantor, any other guarantor or any other Person or received or collected by the Purchaser Managing Administrative Agent or any Lender from the CompanyBorrower, the Guarantor a Guarantor, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the relevant Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Borrower Obligations or any payment received or collected from the such Guarantor in respect of the Borrower Obligations), remain liable for the Borrower Obligations up to the maximum liability of the such Guarantor hereunder until until, subject to reinstatement pursuant to Section 8.05, the Borrower Obligations are paid in fullfull and the Commitments are terminated.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 3 contracts
Sources: Credit Agreement (Countrywide Financial Corp), 364 Day Credit Agreement (Countrywide Financial Corp), 364 Day Credit Agreement (Countrywide Financial Corp)
Guarantee. i. The Guarantor To induce the Lenders to execute and deliver this Agreement and to make the Loans and issue or participate in the Letters of Credit, and in consideration thereof, the Company hereby unconditionally and irrevocably guarantees to the Purchaser Administrative Agent, for the ratable benefit of the Lenders and its their respective successors, indorsees, transferees indorsees and assigns, the prompt and complete payment and performance by the Company when due (whether at the stated maturity, by acceleration or otherwise) of the ObligationsObligations of the Subsidiary Borrowers, and the Company further agrees to pay the expenses which may be paid or incurred by the Administrative Agent or the Lenders in collecting any or all of the Obligations and/or enforcing any rights under this Section 10.1 or under the Obligations in accordance with this Section 10.1. The guarantee contained in this Section 10.1 shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Company and the successors and assigns thereof, and shall inure to the benefit of the Lenders and their successors and permitted assigns, until the Obligations shall have been satisfied in full and the Loans shall be terminated.
ii. (a) Anything herein or in any of the other Agreements to the contrary notwithstanding, the maximum liability of the Guarantor Company hereunder and under the other Agreements shall in no event exceed the amount which can be guaranteed by the Guarantor Company under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii. (b) The Guarantor Company agrees to the extent permitted by applicable law that the Obligations may at any time and from time to time exceed the amount of the liability of the Guarantor Company hereunder without impairing the guarantee contained in this Section 2 10 or affecting the rights and remedies of the Purchaser Administrative Agent or any Lender hereunder.
iv. (c) The guarantee contained in this Section 2 10 shall remain in full force and effect until all the Obligations and the obligations of the Guarantor Company under the guarantee contained in this Section 2 10 shall have been satisfied by payment in full, all Letters of Credit shall have expired or been terminated and the Commitments shall be terminated, notwithstanding that from time to time during the term of this Agreement the Borrowers may be free from any Obligations.
v. (d) No payment made by the Companyany Borrower, the Guarantor Company or any other Person or received or collected by the Purchaser Administrative Agent or any Lender from the Companyany Borrower, the Guarantor Company or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor Company hereunder which shall, notwithstanding any such payment (other than any payment made by the Guarantor Company in respect of the Obligations or any payment received or collected from the Guarantor Company in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder until the Obligations are paid in fullfull and the Commitments are terminated.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 3 contracts
Sources: Credit Agreement (Aspen Insurance Holdings LTD), Credit Agreement (Aspen Insurance Holdings LTD), Credit Agreement (Aspen Insurance Holdings LTD)
Guarantee. i. The To induce the Company to enter into the Merger Agreement, the Limited Guarantor hereby irrevocably, absolutely, and unconditionally and irrevocably guarantees to the Purchaser Company, on the terms and its successorsconditions set forth herein, indorseesdue and punctual payment, transferees performance and assigns, discharge of the prompt payment obligations or liabilities of each of Parent and complete payment and performance by the Company when due Merger Sub under (whether at the stated maturity, by acceleration or otherwisea) Section 7.2(b) of the Obligations.
ii. Anything herein or in any Merger Agreement (the “Parent Fee Obligation”) and (b) the last sentence of Section 5.10 and Section 7.2(d) of the other Agreements to Merger Agreement (the contrary notwithstanding, the maximum liability of the Guarantor hereunder and under the other Agreements shall “Other Obligations”); provided that (a) in no event exceed the amount which can be guaranteed by the Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii. The Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of shall the liability of the Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser hereunder.
iv. The guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations and the obligations of the Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full.
v. No payment made by the Company, the Guarantor or any other Person or received or collected by the Purchaser from the Company, the Guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the Limited Guarantor in respect of the Parent Fee Obligation exceed $4,950,000 (the “Cap”; the Parent Fee Obligation, as limited by the Cap, collectively with the Other Obligations, the “Obligations”), it being understood that the Company will not seek to enforce this Limited Guarantee with respect to the Parent Fee Obligation without giving effect to the Cap, (b) in no event shall Limited Guarantor be obligated to pay more than 15% of any Other Obligations arising under the last sentence of Section 5.10 and (c) Limited Guarantor’s obligation to pay under Section 7.2(d) shall be limited to its failure or any payment received delay to satisfy its portion of the Parent Fee Obligation) . In furtherance of the foregoing, the Limited Guarantor acknowledges that its liability under this Limited Guarantee shall extend to the Obligations and that the Company may, in its sole discretion, bring and prosecute a separate action or collected from actions against the Limited Guarantor in respect for the full amount of the Obligations), remain liable regardless of whether action is brought against Parent, Merger Sub or any other guarantor or Person, whether Parent, Merger Sub or any other Person is joined in any such action or actions or whether Parent, Merger Sub or any other Person were primarily responsible for causing the Obligations up to payment obligations of Parent, Merger Sub or the maximum liability of Limited Guarantor under the Guarantor hereunder until the Obligations are paid in fullMerger Agreement.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 3 contracts
Sources: Limited Guarantee (Weston Presidio v Lp), Limited Guarantee (Court Square Capital Partners II LP), Limited Guarantee (Leever Daniel H)
Guarantee. i. The Guarantor hereby (a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably irrevocably, guarantees to the Purchaser and its successorsAdministrative Agent, indorsees, transferees and assigns, for the ratable benefit of the Secured Parties the prompt and complete payment and performance by the Company when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations.
ii. (b) Anything herein or in any of the other Agreements Loan Document to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder and under the other Agreements Loan Documents in respect of the Obligations shall in no event exceed the amount which can be guaranteed by the such Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting debtors (after giving effect to the rights right of creditors generallycontribution established in Section 2.2).
iii. The (c) Each Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser Administrative Agent or any other Secured Party hereunder.
iv. (d) The guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations (other than contingent indemnification and the obligations contingent expense reimbursement obligations, Obligations in respect of the Secured Hedge Agreements and Cash Management Obligations) of each Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full, the Commitments have been terminated and either no Letter of Credit shall be outstanding or each outstanding Letter of Credit has been cash collateralized so that it is fully secured to the reasonable satisfaction of the Administrative Agent, notwithstanding that from time to time during the term of the Credit Agreement any Loan Party may be free from any of the Obligations.
v. No (e) Except as provided in Section 4.14, no payment made by any of the CompanyGuarantors, the Guarantor any other guarantor or any other Person or received or collected by the Purchaser Administrative Agent or any Secured Party from any of the CompanyGuarantors, the Guarantor any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Obligations or any payment received or collected from the such Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the such Guarantor hereunder until the Obligations are paid in full.
vi. Notwithstanding anything , the Commitments have been terminated, and either no Letters of Credit shall be outstanding or each outstanding Letter of Credit has been cash collateralized so that it is fully secured to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance reasonable satisfaction of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the AgreementsAdministrative Agent.
Appears in 3 contracts
Sources: Restatement Agreement (Constellation Brands, Inc.), Credit Agreement (Constellation Brands, Inc.), Guarantee Agreement (Constellation Brands, Inc.)
Guarantee. i. The Guarantor hereby (a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably irrevocably, guarantees to the Purchaser Administrative Agent, for the ratable benefit of the Secured Parties and its their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Borrower Obligations.
ii. (b) Anything herein or in any of the other Agreements Loan Document to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder and under the other Agreements Loan Documents shall in no event exceed the amount which can be guaranteed by the such Guarantor under applicable federal federal, state and state laws, including other laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting debtors (after giving effect to the rights right of creditors generallycontribution established in Section 2.02).
iii. The (c) Each Guarantor agrees that the Borrower Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser any Secured Party hereunder.
iv. (d) The guarantee contained in this Section 2 shall remain in full force and effect until all the Borrower Obligations and the obligations of the Guarantor under the guarantee contained in this Section 2 Obligations shall have been satisfied by payment in fullFully Satisfied notwithstanding that from time to time during the term of the Credit Agreement the Borrower may be free from any Borrower Obligations.
v. (e) No payment made by the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person or received or collected by the Purchaser any Secured Party from the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Borrower Obligations or any payment received or collected from the such Guarantor in respect of the Borrower Obligations), remain liable for the Borrower Obligations up to the maximum liability of the such Guarantor hereunder until the Borrower Obligations are paid in fullFully Satisfied.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 3 contracts
Sources: Second Lien Guarantee and Collateral Agreement (Spanish Broadcasting System Inc), First Lien Guarantee and Collateral Agreement (Spanish Broadcasting System Inc), Guarantee and Collateral Agreement (Spanish Broadcasting System Inc)
Guarantee. i. The Guarantor hereby (a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably irrevocably, guarantees to the Purchaser Collateral Agent, for the ratable benefit of the Secured Parties and its their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations.
ii. (b) Anything herein or in any of the other Agreements Loan Document to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder and under the other Agreements Loan Documents shall in no event exceed the amount which can be guaranteed by the such Guarantor under applicable foreign, federal and state bankruptcy, insolvency or receivership laws, including laws relating the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to the insolvency extent applicable to this guarantee and each Guarantor’s obligations hereunder (after giving effect to the right of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generallycontribution established in Section 2.2).
iii. The (c) Each Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser hereunderCollateral Agent.
iv. (d) The guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations and Termination Date, notwithstanding that from time to time during the obligations term of the Guarantor under Credit Agreement the guarantee contained in this Section 2 shall have been satisfied by payment in fullBorrower may be free from any Obligations.
v. (e) No payment made by the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person or received or collected by the Purchaser Collateral Agent or any Secured Party from the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Obligations or any payment received or collected from the such Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the such Guarantor hereunder until the Obligations are paid in fullTermination Date.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 3 contracts
Sources: Credit Agreement (Iac/Interactivecorp), Credit Agreement (Match Group, Inc.), Credit Agreement (Iac/Interactivecorp)
Guarantee. i. 9.1 The Guarantor (if any) hereby unconditionally and irrevocably guarantees to the Purchaser Landlord that the Tenant will pay the Rent reserved by and its successorsobserve and perform all of the covenants and stipulations on the part of the Tenant contained in this Agreement throughout the Term and indemnifies the Landlord against all losses, indorseesdamages, transferees costs and assigns, the prompt and complete payment and performance expenses arising or incurred by the Company when due (whether at the stated maturity, by acceleration or otherwise) Landlord as a results of the Obligationsnon-payment or non-performance of those obligations on liabilities.
ii. Anything herein or in any of the other Agreements to the contrary notwithstanding, the maximum liability 9.2 The obligations of the Guarantor hereunder under this Agreement are a direct, primary and unconditional liability to pay on demand to the Landlord any sum that the Tenant is liable to pay under this Lease without the other Agreements shall in no event exceed the amount which can be guaranteed need for any recourse by the Landlord against the Tenant.
9.3 If this Agreement is disclaimed by a liquidator or trustee in bankruptcy of the Tenant or the Crown or is forfeited then the Guarantor under applicable federal and state laws, including laws relating shall (at the option of the Landlord) accept a new lease of the Property for a term commencing on the date of disclaimer or forfeiture for a term equivalent to the insolvency residue which would have remained of debtors, fraudulent conveyance the Term if there had been no disclaimer or transfer forfeiture at the same terms and subject to the same terms as this Agreement or laws affecting shall pay to the rights Landlord a sum equal to the rent that would have been payable under this Lease but for the disclaimer or forfeiture in respect of creditors generallythe period from the date of the disclaimer or forfeiture until the earlier of date which is [six] months after the date of the disclaimer or forfeiture and the date on which the Property has been re-let by the Landlord.
iii. The Guarantor agrees that 9.4 So far as the Obligations may at any time and from time to time exceed the amount of the liability of the Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser hereunder.
iv. The guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations and law allows the obligations of the Guarantor under this Agreement shall not be affected by any act, omission, matter or thing whereby (but for this provision) the guarantee contained Guarantor would be released in whole or part from this Section 2 shall have been satisfied Guarantee other than a release by payment in full.
v. No payment made deed given by the Company, the Guarantor or any other Person or received or collected by the Purchaser from the Company, the Guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the Guarantor in respect of the Obligations or any payment received or collected from the Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder until the Obligations are paid in fullLandlord.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 3 contracts
Sources: Tenancy Agreement (Gw Pharmaceuticals PLC), Tenancy Agreement (Gw Pharmaceuticals PLC), Tenancy Agreement (Gw Pharmaceuticals PLC)
Guarantee. i. The Guarantor hereby (a) Each of the Grantors hereby, jointly and severally, as a primary obligor and not merely as a surety, unconditionally and irrevocably irrevocably, guarantees to the Purchaser Collateral Agent for the ratable benefit of the Secured Parties and its their respective permitted successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company each other Guarantor when due (whether at the stated maturity, by acceleration or otherwise) of the Secured Obligations, including, without limitation, (i) the principal of and interest on the Term Loans made to the Borrower pursuant to the Credit Agreement, (ii) all other amounts payable by the Borrower under the Credit Agreement and the other Loan Documents, and (iii) the punctual and faithful performance, keeping, observance, and fulfillment by the Guarantors of all of the agreements, conditions, covenants, and obligations of the Guarantors contained in the Loan Documents (all of the foregoing being referred to collectively as the “Guaranteed Obligations”). Each Grantor hereby agrees that this Guarantee is an absolute, irrevocable and unconditional Guarantee of payment and is not a Guarantee of collection. Notwithstanding anything to the contrary contained in this Section 2 or otherwise in this Agreement or any other Loan Document, the Guarantee provided by the IDT Entities shall be limited to the aggregate principal amount and any accrued but unpaid interest outstanding under the IDT Intercompany Note on the Acceleration Date.
ii. (b) Anything herein or in any of the other Agreements Loan Document to the contrary notwithstanding, the maximum liability of each Grantor for the Guarantor hereunder and under the other Agreements Guaranteed Obligations shall in no event exceed the amount which can be guaranteed by the Guarantor such Grantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting debtors (after giving effect to the rights right of creditors generallycontribution established in Section 2.2).
iii. The Guarantor (c) Each Grantor agrees that the Guaranteed Obligations may at any time and from time to time exceed the amount of the liability of the Guarantor such Grantor hereunder without impairing the guarantee Guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser Collateral Agent or any other Secured Party hereunder.
iv. (d) The guarantee Guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations and the (including all obligations of the Guarantor each Grantor under the guarantee contained in this Section 2 2) shall have been satisfied by payment in fullfull (other than contingent or indemnification obligations not then asserted or due), notwithstanding that from time to time during the term of the Credit Agreement the Loan Parties may be free from any Obligations.
v. No (e) Except as provided in Section 8.14, no payment made by the CompanyBorrower, any of the Guarantor other Guarantors, any other guarantor or any other Person or received or collected by the Purchaser Collateral Agent or any other Secured Party from the CompanyBorrower, any of the Guarantor other Guarantors or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Guaranteed Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor any Grantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Guaranteed Obligations or any payment received or collected from the such Guarantor in respect of the Guaranteed Obligations), remain liable for the Guaranteed Obligations up to the maximum liability of the Guarantor such Grantor hereunder until the Guaranteed Obligations are shall have been paid in fullfull (other than contingent or indemnification obligations not then asserted or due).
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 3 contracts
Sources: Credit Agreement (SFX Entertainment, INC), Guarantee and Collateral Agreement (SFX Entertainment, INC), Guarantee and Collateral Agreement (SFX Entertainment, INC)
Guarantee. i. The Guarantor hereby (a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably irrevocably, guarantees to the Purchaser Lender and its successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Borrower Obligations.
ii. (b) Anything herein or in any of the other Agreements Loan Document to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder and under the other Agreements Loan Documents shall in no event exceed the amount which can be guaranteed by the such Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting debtors (after giving effect to the rights right of creditors generallycontribution established in Section 2.2).
iii. The (c) Each Guarantor agrees that the Borrower Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser Lender hereunder.
iv. (d) The guarantee contained in this Section 2 shall remain in full force and effect until all the Borrower Obligations and the obligations of the each Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full.
v. (e) No payment made by the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person or received or collected by the Purchaser Lender from the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Borrower Obligations or any payment received or collected from the such Guarantor in respect of the Borrower Obligations), remain liable for the Borrower Obligations up to the maximum liability of the such Guarantor hereunder until the Borrower Obligations are paid in full.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 3 contracts
Sources: Guarantee and Collateral Agreement (Virtus Investment Partners, Inc.), Guarantee and Collateral Agreement (Circuit Research Labs Inc), Guarantee and Collateral Agreement (Harman International Industries Inc /De/)
Guarantee. i. The Guarantor hereby (a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably irrevocably, guarantees to the Purchaser Lender and its respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Borrower Obligations.
ii. (b) Anything herein or in any of the other Agreements Loan Document to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder and under the other Agreements Loan Documents shall in no event exceed the amount which can be guaranteed by the such Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting debtors (after giving effect to the rights right of creditors generallycontribution established in Section 2.2).
iii. The (c) Each Guarantor agrees that the Borrower Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser hereunderLender.
iv. (d) The guarantee contained in this Section 2 shall remain in full force and effect until all the Borrower Obligations and the obligations of the each Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in fullfull and the Commitments shall be terminated, notwithstanding that from time to time during the term of the Credit Agreement the Borrower may be free from any Borrower Obligations.
v. (e) No payment made by the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person or received or collected by the Purchaser Lender from the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Borrower Obligations or any payment received or collected from the such Guarantor in respect of the Borrower Obligations), remain liable for the Borrower Obligations up to the maximum liability of the such Guarantor hereunder until the Borrower Obligations are paid in full.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Printcafe Software Inc), Guarantee and Collateral Agreement (Printcafe Software Inc)
Guarantee. i. The (a) Guarantor hereby unconditionally and irrevocably guarantees to the Purchaser and its successors, indorsees, transferees and assigns, Buyer the prompt and complete payment and performance of the Obligations by the Company Seller when due (whether at the stated maturity, by acceleration or otherwise) ), as the case may be, and agrees to indemnify and hold harmless Buyer from any and all claims, damages, losses, liabilities, costs and expenses that may be incurred by or asserted or awarded against Buyer, in each case relating to or arising out of the Obligations, as the case may be.
ii. Anything herein or in any of the other Agreements (b) Subject to the contrary notwithstandingclauses (c) and (d) below, the maximum liability of the Guarantor hereunder and under the other Agreements Repurchase Documents shall in no event exceed twenty-five percent (25%) of the amount then-current aggregate outstanding Repurchase Price due and payable from Seller to Buyer under the Repurchase Agreement.
(c) Notwithstanding the foregoing, the limitation on recourse liability as set forth in subsection (b) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Obligations immediately shall become fully recourse to Seller and Guarantor, jointly and severally, in the event of any of the following:
(i) a voluntary bankruptcy or insolvency proceeding is commenced by Seller under the Bankruptcy Code or any similar federal or state law; and
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against Seller or Guarantor in connection with which can Seller, Guarantor, or any Affiliate of any of the foregoing has or have colluded in any way with the creditors commencing or filing such proceeding.
(d) Notwithstanding the foregoing, the limitation on recourse liability as set forth in subsection (b) above shall not be guaranteed applicable to, and Guarantor shall be fully liable for, any and all actual losses, costs, claims, damages or other liabilities incurred or suffered by Buyer to the extent resulting from any of the following:
(i) fraud or intentional misrepresentation by Seller, Guarantor under applicable federal or any other Affiliate of Seller or Guarantor in connection with the execution and state lawsthe delivery of this Guarantee, the Repurchase Agreement, or any of the other Repurchase Documents, or any certificate, report, financial statement or other instrument or document furnished to Buyer at the time of the closing of the Repurchase Agreement or during the term of the Repurchase Agreement;
(ii) any material breach of the separateness covenants contained in the Repurchase Agreement; and
(iii) any material breach of any representations and warranties contained in any Repurchase Document including laws but not limited to any representations and warranties relating to Environmental Laws, or any indemnity for costs incurred in connection with the insolvency violation of debtorsany Environmental Law, fraudulent conveyance the correction of any environmental condition, or transfer the removal of any Materials of Environmental Concern, in each case in any way affecting Seller’s or laws affecting any of its Affiliates’ properties or any of the rights of creditors generallyPurchased Assets.
iii. The Guarantor agrees that (e) Nothing herein shall be deemed to be a waiver of any right which Buyer may have under Section 506(a), 506(b), 1111(b) or any other provision of the Obligations may at any time and from time Bankruptcy Code to time exceed file a claim for the full amount of the liability outstanding obligations under the Repurchase Agreement or to require that all collateral shall continue to secure all of the indebtedness owing to the Buyer in accordance with the Repurchase Agreement or any other Repurchase Documents.
(f) Guarantor hereunder further agrees to pay any and all reasonable and documented expenses (including, without impairing the guarantee contained limitation, all reasonable fees and disbursements of external counsel) which may be paid or incurred by Buyer in this Section 2 enforcing any rights with respect to, or affecting the rights and remedies collecting, any or all of the Purchaser hereunder.
ivObligations and/or enforcing any rights with respect to, or collecting against, Guarantor under this Guarantee. The guarantee contained in this Section 2 This Guarantee shall remain in full force and effect until all the Obligations are fully satisfied and the obligations of the Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment paid in full, notwithstanding that from time to time prior thereto Seller may be free from any Obligations.
v. (g) No payment or payments made by the Company, the Guarantor Seller or any other Person or received or collected by the Purchaser Buyer from the Company, the Guarantor Seller or any other Person by virtue of any action or proceeding or any set-off or appropriation or application application, at any time or from time to time time, in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the Guarantor in respect of the Obligations or any payment received or collected from the Guarantor in respect of the Obligations)payments, remain liable for the amount of the Obligations up (subject to the maximum liability of the Guarantor hereunder limitations set forth in Section 2(b), if applicable) until the Obligations are paid in full.
vi. Notwithstanding anything (h) Guarantor agrees that whenever, at any time, or from time to the contrary in this Agreementtime, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable make any payment to Buyer on account of Guarantor’s liability hereunder, Guarantor will notify Buyer in writing that such payment is made under this Guarantee for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreementspurpose.
Appears in 2 contracts
Sources: Guarantee Agreement, Guarantee Agreement (Blackstone Mortgage Trust, Inc.)
Guarantee. i. The 1.1 With effect on and from the Effective Date (as defined under the Novation Agreement), the Guarantor hereby unconditionally hereby:
(a) agrees and irrevocably guarantees to the Purchaser Owner, as an independent and its successorsprimary obligor and not only as surety, indorsees, transferees and assigns, that if the prompt and complete payment and performance by the Company when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations.
ii. Anything herein or in Transferee breaches any of the Guaranteed Obligations, then the Guarantor shall on the Owner’s demand perform that Guaranteed Obligation in place of the Transferee and shall indemnify and save harmless the Owner from and against any and all losses, damages, expenses, liabilities, claims, costs or proceedings which the Owner may suffer or incur by reason of that breach or any of the Guaranteed Obligations being or becoming totally or partially unenforceable by reason of illegality, incapacity, lack or exceeding of powers, ineffectiveness of execution or any other matter; provided that the Guarantor’s liability under this deed shall be no greater than the Transferee’s liability under the Agreements (or what its liability would have been had the relevant obligations been fully enforceable);
(b) acknowledges and agrees that no variation of or alteration to the contrary notwithstandingterms of the Guaranteed Obligations or to their extent, nature or method of performance, and no allowance of time, waiver, forbearance, forgiveness, indulgence, compromise or other dealing under or in connection with the maximum Agreements or any right or remedy arising thereunder, and no invalidity, illegality, unenforceability or irregularity of the Agreements or of any provision thereof, and no other act, omission or default which (but for this provision) might have operated to release, exonerate or discharge the Guarantor or otherwise reduce, extinguish or adversely affect any liability of the Guarantor hereunder and under the other Agreements terms of this deed shall in no event exceed any way release, exonerate or discharge the amount which can Guarantor from any liability under the terms of this deed or otherwise reduce, extinguish or adversely affect any such liability, and the Guarantor hereby waives any requirement for notice to it of any such event;
(c) agrees that this deed shall not be guaranteed revocable by the Guarantor under applicable federal Guarantor, shall be a continuing guarantee, shall be additional to and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance not in substitution for any rights or transfer or laws affecting the rights of creditors generally.
iii. The Guarantor agrees remedies that the Obligations Owner may have against the Transferee under the Agreements or at law, shall be additional to any time and other guarantee or security from time to time exceed held by the amount Owner, shall not be affected by any release or waiver of the liability of the Guarantor hereunder without impairing the any such guarantee contained in this Section 2 or affecting the rights security and remedies of the Purchaser hereunder.
iv. The guarantee contained in this Section 2 shall remain in full force and effect until notwithstanding the winding-up, liquidation, receivership, administration, voluntary arrangement or other composition with creditors (or any event equivalent or analogous to any of the foregoing under the law of any jurisdiction) of the Transferee or if the Transferee is unable to pay its debts (as defined in Indonesian Bankruptcy and Suspension of Debt Payment Obligation Law 37 of 2004, as amended);
(d) acknowledges and agrees that its liabilities and obligations under this deed shall not be limited to its proportion of shareholding in the Transferee;
(e) agrees that all sums payable by the Obligations and Guarantor under this deed shall be paid to the Owner in full, free of all present or future taxes, levies, duties, charges, fees, withholdings or deductions (together referred to as “Deductions”) and, if the Guarantor is compelled by law to make any Deduction, the Guarantor will gross-up the payment so that the net sum received by the Owner is equal to the full amount which the Owner would have received had no such Deduction been made;
(f) agrees that, as long as the Transferee remains under any actual or contingent liability under the terms of the Agreements, it shall not take any security from the Transferee in connection with this deed (and, if taken, any such security shall be held by the Guarantor as security for its liability to the Owner under this deed) or take any step to enforce any right or claim against the Transferee in respect of any payment made under or liability arising from or in connection with this deed or exercise any rights as Guarantor in competition with the Owner;
(g) agrees that the obligations of the Guarantor under this deed and the guarantee contained in Transferee under the Agreements are independent and several obligations, and accordingly that the Owner shall not be obliged, before enforcing any of its rights or remedies under this Section 2 shall have been satisfied by payment in full.
v. No payment made by the Companydeed, the Guarantor to commence proceedings or take any other Person action against the Transferee or received or collected by the Purchaser from the Company, the Guarantor or enforce any other Person by virtue of any action guarantee or proceeding or any set-off or appropriation or application at any time or security from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made held by the Guarantor Owner in respect of the Obligations Guaranteed Obligations;
(h) agrees that the Owner shall be entitled to assign any or all of its rights or benefits under this deed (whether or not accrued) at any payment received or collected from the Guarantor in respect time to any person who takes an assignment of any of the Obligationsrights under the Agreements or the benefit thereof, subject mutatis mutandis to the same terms.
(i) waives in favour of the Owner any and all of its rights, protection, privileges and defences provided by law to a guarantor and in particular the provisions in Article 1430, 1831 (but only to the extent it requires the Owner to exhaust their remedies against the Guarantor), remain liable for the Obligations up to the maximum liability 1837, 1843, 1347 through 1850 of the Guarantor hereunder until Indonesian Civil Code (Kitab Undang-Undang Hukum Perdata); and
(j) waives any right to and agrees not to make any claim or set off or “Kompensasi” as provided in Articles 1425 through 1435 of the Obligations are paid Indonesian Civil Code and agrees not to make any counter claim in fullany action brought by the Owner to enforce its rights hereunder.
vi. Notwithstanding anything 1.2 The Guarantor confirms that, on the date hereof and on the Effective Date: (i) it is a corporation duly incorporated and validly existing and in good standing under the laws of the country of its incorporation and has the corporate power and authority to enter into and perform its obligations under this deed and all necessary corporate, shareholder and other action has been taken to authorise the contrary in this Agreementexecution, with respect to any defaulted non-monetary Obligations the specific delivery and performance of which by the Guarantor is not reasonably possible same; and (e.g. ii) that this deed constitutes legal, valid and binding obligations applicable to it and the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations obligations are in full force and effect in accordance with their terms, and the Agreementsdelivery and performance by Guarantor of this deed will not contravene any law of any governmental authority having jurisdiction over Guarantor.
Appears in 2 contracts
Sources: Lease, Operation and Maintenance Agreement, Lease, Operation and Maintenance Agreement (Hoegh LNG Partners LP)
Guarantee. i. (i) The Guarantor hereby Guarantors hereby, jointly and severally, unconditionally and irrevocably guarantees irrevocably, guarantee to the Purchaser Holders and its their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations.
(ii. Anything herein or in any of the other Agreements to the contrary notwithstanding, the ) The maximum liability of the each Guarantor hereunder and under the other Agreements shall in no event exceed the amount which can be guaranteed by the such Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generallygenerally (after giving effect to the right of contribution established in Section 2(b)).
(iii. The ) Each Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser Holders hereunder.
(iv. ) The guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations and the obligations of the each Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full.
v. (v) No payment made by the Company, any of the Guarantor Guarantors, any other guarantor or any other Person or received or collected by the Purchaser Holders from the Company, any of the Guarantor Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Obligations or any payment received or collected from the such Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the such Guarantor hereunder until the Obligations are paid in full.
(vi. ) Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor Guarantors is not reasonably possible (e.g. the issuance of the Company’s Common Stock)possible, the Guarantor Guarantors shall only be liable for making the Purchaser Holders whole on a monetary basis for the Company’s 's failure to perform such Obligations in accordance with the AgreementsObligations.
Appears in 2 contracts
Sources: Subsidiary Guarantee (Unity Wireless Corp), Subsidiary Guarantee (Aduromed Industries, Inc.)
Guarantee. i. The Guarantor hereby irrevocably and unconditionally and irrevocably guarantees to the Purchaser and its successors, indorsees, transferees and assigns, SUPPLIER the prompt and complete full discharge by GWWO (and its Affiliates, where relevant) of all of GWWO’s (or, where relevant, its Affiliate) covenants, agreements, obligations and liabilities under this Agreement, including the due and punctual payment of all amounts which are or may become due and payable by GWWO hereunder, when and as the same shall become due and payable (collectively, the “GWWO Obligations”), in accordance with the terms hereof or thereof. The Guarantor acknowledges and agrees that, with respect to all GWWO Obligations to pay money, such guaranty shall be a guaranty of payment and performance by and not of collection and shall not be conditioned or contingent upon the Company when pursuit of any remedies against GWWO. If GWWO shall default in the due (whether at and punctual performance of any GWWO Obligation, including the stated maturity, by acceleration or otherwise) full and timely payment of the Obligations.
ii. Anything herein or in any of the other Agreements amount due and payable pursuant to the contrary notwithstandingany GWWO Obligation, the maximum liability Guarantor will forthwith perform or cause to be performed such GWWO Obligation and will forthwith make full payment of any amount due with respect thereto at its sole cost and expense. The liabilities and obligations of the Guarantor hereunder pursuant to this Agreement are unconditional and under absolute and, without limiting the other Agreements generality of the foregoing, shall not be released, discharged or otherwise affected by:
(a) any acceleration, extension, renewal, settlement, compromise, waiver or release in no event exceed respect of any GWWO Obligation by operation of law or otherwise;
(b) the amount which can be guaranteed by invalidity or unenforceability, in whole or in part, of this Agreement;
(c) any modification or amendment of or supplement to this Agreement;
(d) any change in the corporate existence, structure or ownership of GWWO or the Guarantor under applicable federal and state lawsor any insolvency, including laws relating bankruptcy, reorganization or other similar proceeding affecting any of them or their assets; or
(e) any other act, omission to act, delay of any kind by any party hereto or any other person, or any other circumstance whatsoever that might, but for the insolvency provisions of debtorsthis Section, fraudulent conveyance constitute a legal or transfer or laws affecting equitable discharge of the rights obligations of creditors generally.
iiithe Guarantor hereunder. The Guarantor irrevocably and unconditionally agrees that with the Obligations may at SUPPLIER that, if any time obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and from time to time exceed primary obligation, indemnify the amount SUPPLIER immediately on demand against any cost, loss or liability it incurs as a result of the liability of GWWO or the Guarantor hereunder without impairing not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under this Agreement on the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser hereunder.
ivdate which it would have been due. The Guarantor hereby waives any right, whether legal or equitable, statutory or non-statutory, to require the SUPPLIER to proceed against or take any action against or pursue any remedy with respect to GWWO or any other person or make presentment or demand for performance or give any notice of non-performance before the SUPPLIER may enforce its rights hereunder against the Guarantor. This guarantee contained in this Section 2 is to be a continuing guarantee and accordingly the Guarantor’s obligations hereunder shall remain in full force and effect until all the GWWO Obligations and the obligations of the Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment performed in full.
v. No payment made by the Company, the Guarantor or any other Person or received or collected by the Purchaser from the Company, the Guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application . If at any time any performance by any person of any GWWO Obligation is rescinded or from time to time in reduction must be otherwise restored or returned, whether upon the insolvency, bankruptcy or reorganization of GWWO or in payment of otherwise, the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor Guarantor’s obligations hereunder which shall, notwithstanding any such payment (other than any payment made by the Guarantor in respect of the Obligations or any payment received or collected from the Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder until the Obligations are paid in full.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is such GWWO Obligation shall be reinstated at such time as though such GWWO Obligation had become due and had not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreementsbeen performed.
Appears in 2 contracts
Sources: Amendment and Restatement Agreement (Grifols SA), Purchase and Sale Agreement (Grifols SA)
Guarantee. i. The Guarantor hereby (a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably irrevocably, guarantees to the Purchaser Collateral Agent, for its benefit and its the ratable benefit of the other Secured Parties and their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company Borrower when due and payable (whether at the stated maturity, by acceleration or otherwise) of the Borrower Obligations. It is the intent of each Guarantor that the guaranty set forth herein shall be a guaranty of payment and not a guaranty of collection.
ii. (b) Anything herein or in any of the other Agreements Loan Document to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder and under the other Agreements Loan Documents shall in no event exceed the amount which can be guaranteed by the such Guarantor under applicable federal and state lawslaw, including laws relating applicable Debtor Relief Laws (after giving effect to the insolvency right of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generallycontribution established in Section 2.2).
iii. The (c) Each Guarantor agrees that the total amount of the Borrower Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser Collateral Agent or any other Secured Party hereunder.
iv. (d) The guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations and earlier to occur of (i) the obligations date of the satisfaction of the Termination Conditions or (ii) as to any Guarantor, the sale or other disposition of all of the Capital Stock of such Guarantor permitted under the guarantee contained in this Section 2 shall have been satisfied by payment in fullCredit Agreement.
v. (e) No payment made by the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person or received or collected by the Purchaser Collateral Agent or any other Secured Party from the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of any of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of any of the Obligations or any payment received or collected from the such Guarantor in respect of any of the Obligations), remain liable for each of the Obligations up to the maximum liability of the such Guarantor hereunder until the Obligations are paid in fullearlier to occur of (i) the date of the satisfaction of the Termination Conditions or (ii) the sale or other disposition of all of the Capital Stock of such Guarantor permitted under the Credit Agreement.
vi. Notwithstanding anything to the contrary (f) The guarantee contained in this AgreementSection 2 is a primary and original obligation of each Guarantor, with is not merely the creation of a surety relationship, and is an absolute, unconditional, and continuing guaranty of payment and performance which shall remain in full force and effect without respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations future changes in accordance with the Agreementsconditions.
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Sirva Inc), Guarantee and Collateral Agreement (Sirva Inc)
Guarantee. i. The Guarantor hereby (a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably irrevocably, guarantees to the Purchaser Administrative Agent, for the ratable benefit of the Tranche A Lenders and its their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Tranche A Obligations.
ii. (b) Anything herein or in any of the other Agreements Fundamental Document to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder and under the other Agreements Fundamental Documents shall in no event exceed the amount which can be guaranteed by the such Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting debtors (after giving effect to the rights right of creditors generallycontribution established in Section 2.2).
iii. The (c) Each Guarantor agrees that the Tranche A Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser Administrative Agent or any Tranche A Lender hereunder.
iv. (d) The guarantee contained in this Section 2 shall remain in full force and effect until all the Tranche A Obligations and the obligations of the each Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in fullfull in cash, no Letter of Credit shall be outstanding and the Tranche A Commitments shall be terminated, notwithstanding that from time to time during the term of the Credit Agreement the Borrower may be free from any Tranche A Obligations.
v. (e) No payment made by the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person or received or collected by the Purchaser Administrative Agent or any Tranche A Lender from the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Tranche A Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Tranche A Obligations or any payment received or collected from the such Guarantor in respect of the Tranche A Obligations), remain liable for the Tranche A Obligations up to the maximum liability of the such Guarantor hereunder until the Tranche A Obligations are paid in fullfull in cash, no Letter of Credit shall be outstanding and the Tranche A Commitments are terminated.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Sources: Credit Agreement (PHH Corp), Credit Agreement (PHH Corp)
Guarantee. i. (a) The Guarantor hereby unconditionally and irrevocably irrevocably, guarantees to the Purchaser Administrative Agent, for the ratable benefit of the Lenders, and its their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company each Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations.
ii. (a) Anything herein or in any of the other Agreements Loan Document to the contrary notwithstanding, the maximum liability of the Guarantor hereunder and under the other Agreements Loan Documents shall in no event exceed the amount which can be guaranteed by the Guarantor under applicable federal Federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii. (b) The Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of the Guarantor hereunder without impairing the guarantee contained in this Section 2 7 or affecting the rights and remedies of the Purchaser Administrative Agent or any Lender hereunder.
iv. (c) The guarantee contained in this Section 2 7 shall remain in full force and effect until all the Obligations (other than contingent indemnification obligations for which no claim has been made) and the obligations of the Guarantor under the guarantee contained in this Section 2 7 shall have been satisfied by payment in fullfull and the Commitments shall be terminated, notwithstanding that from time to time during the term of this Agreement the Borrowers may be free from any Obligations.
v. (d) No payment made by the Companyany Borrower, the Guarantor or any other Person or received or collected by the Purchaser Administrative Agent or any Lender from the Companyany Borrower, the Guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the Guarantor in respect of the Obligations or any payment received or collected from the Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder until the Obligations are paid in fullfull and the Commitments are terminated.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Sources: Credit Agreement (Knight Capital Group, Inc.), Credit Agreement (Knight Capital Group, Inc.)
Guarantee. i. (a) The Guarantor Parent Borrower hereby unconditionally and irrevocably guarantees to the Purchaser Administrative Agent, for the ratable benefit of the Lenders and its their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company Subsidiary Borrowers when due (whether at the stated maturity, by acceleration or otherwise) of the Subsidiary Obligations. As used in this Article IX, the term “Lenders” includes affiliates of Lenders which are parties to any Specified Cash Management Agreements or Specified Swap Agreements.
ii. Anything herein or in any of the other Agreements to the contrary notwithstanding, the maximum liability of the Guarantor hereunder and under the other Agreements shall in no event exceed the amount which can be guaranteed by the Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii. (b) The Guarantor Parent Borrower agrees that the Subsidiary Obligations may at any time and from time to time exceed the amount of the liability of the Guarantor Parent Borrower hereunder that would exist in the absence of this Article IX without impairing the guarantee contained in this Section 2 Guarantee or affecting the rights and remedies of the Purchaser Administrative Agent or any Lender hereunder.
iv. The guarantee contained in this Section 2 (c) This Guarantee shall remain in full force and effect until all the Subsidiary Obligations and the obligations of the Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in fullfull in immediately available funds, no Letter of Credit shall be outstanding and the Commitments shall be terminated, notwithstanding that from time to time during the term of this Guarantee the Subsidiary Borrowers may be free from any Subsidiary Obligations.
v. (d) No payment made by the Companyany Borrower, the Guarantor any Guarantor, any other guarantor or any other Person or received or collected by the Purchaser Administrative Agent or any Lender from the Companyany Borrower, the Guarantor any Guarantor, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Subsidiary Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor Parent Borrower hereunder which shall, notwithstanding any such payment (other than any payment made by the Guarantor Parent Borrower in respect of the Subsidiary Obligations or any payment received or collected from the Guarantor Parent Borrower in respect of the Subsidiary Obligations), remain liable for the Subsidiary Obligations up to the maximum liability of the Guarantor hereunder until the Subsidiary Obligations are paid in fullfull in immediately available funds, no Letter of Credit shall be outstanding and the Commitments are terminated.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Sources: Credit Agreement (Ralph Lauren Corp), Credit Agreement (Polo Ralph Lauren Corp)
Guarantee. i. The Guarantor hereby (a) Subject to the provisions of Section 2(b), each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably guarantees irrevocably, guarantees, as primary obligor and not merely as surety, to the Purchaser and its successorsCollateral Agent, indorsees, transferees and assignsfor the ratable benefit of the Secured Parties, the prompt and complete payment and performance by the Company when due (whether at the stated maturity, by acceleration required prepayment, acceleration, demand or otherwise) of the ObligationsObligations of anyone other than such Guarantor (including amounts that would become due but for operation of the automatic stay under 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a)).
ii. (b) Anything herein or in any of the other Agreements Credit Document to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder and under the other Agreements Credit Documents shall in no event exceed the amount which that can be guaranteed by the such Guarantor under the Bankruptcy Code or any applicable federal and state laws, including laws relating to fraudulent conveyances, fraudulent transfers or the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii. The (c) Each Guarantor further agrees to pay any and all expenses (including all reasonable fees and disbursements of counsel) that may be paid or incurred by the Collateral Agent or any other Secured Party in enforcing, or obtaining advice of counsel in respect of, any rights with respect to, or collecting, any or all of the Obligations and/or enforcing any rights with respect to, or collecting against, such Guarantor under this Guarantee.
(d) Each Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 Guarantee or affecting the rights and remedies of the Purchaser Collateral Agent or any other Secured Party hereunder.
iv. The guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations and the obligations of the Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full.
v. (e) No payment or payments made by the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person or received or collected by the Purchaser Collateral Agent , the Administrative Agent or any other Secured Party from the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder hereunder, which shall, notwithstanding any such payment (or payments, other than any payment payments made by the such Guarantor in respect of the Obligations or any payment payments received or collected from the such Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the such Guarantor hereunder until the Obligations under the Credit Documents are paid in fullfull and the Commitments thereunder are terminated.
vi. Notwithstanding anything (f) Each Guarantor agrees that whenever, at any time, or from time to time, it shall make any payment to the contrary Collateral Agent or any other Secured Party on account of its li- ability hereunder, it will notify the Collateral Agent in writing that such payment is made under this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable Guarantee for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreementspurpose.
Appears in 2 contracts
Sources: Guarantee (Dollar General Corp), Guarantee (Dollar General Corp)
Guarantee. i. The Guarantor hereby (a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably irrevocably, guarantees to the Purchaser Administrative Agent, for the ratable benefit of the Lenders and its their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the ObligationsBorrower Obligations (other than, with respect to any Guarantor, any Excluded Swap Obligations of such Guarantor).
ii. (b) Anything herein or in any of the other Agreements Loan Document to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder and under the other Agreements Loan Documents shall in no event exceed the amount which can be guaranteed by the such Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting debtors (after giving effect to the rights right of creditors generallycontribution established in Section 2.2).
iii. The (c) Subject to Section 2(b), each Guarantor agrees that the Borrower Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser Administrative Agent or any Lender hereunder.
iv. (d) The guarantee contained in this Section 2 shall remain in full force and effect until all the Borrower Obligations and the obligations of the each Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full, no Letter of Credit shall be outstanding and the Commitments shall be terminated, notwithstanding that from time to time during the term of the Credit Agreement the Borrower may be free from any Borrower Obligations.
v. (e) No payment made by the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person or received or collected by the Purchaser Administrative Agent or any Lender from the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Borrower Obligations or any payment received or collected from the such Guarantor in respect of the Borrower Obligations), remain liable for the Borrower Obligations up to the maximum liability of the such Guarantor hereunder until the Borrower Obligations are paid in full, no Letter of Credit shall be outstanding and the Commitments are terminated.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Sources: Credit Agreement (Henry Schein Inc), Credit Agreement (Henry Schein Inc)
Guarantee. i. (a) The Guarantor Guarantors hereby absolutely, unconditionally and irrevocably guarantees guarantee, jointly and severally, as principal obligors, and not merely as sureties, to the Purchaser and its successors, indorsees, transferees successors and permitted assigns, all Liabilities of the prompt Sellers to Purchaser arising out of or related to this Agreement, including the indemnification obligations of the Company pursuant to Article VIII. Each Guarantor reserves the right to assert defenses that the applicable Seller may have or have had to payment or performance of any obligations guaranteed hereunder. The foregoing obligation of the Guarantors constitutes a continuing guaranty of payment and complete payment performance, and not of collection, and is and shall be absolute and unconditional under any and all circumstances, including circumstances that might otherwise constitute a legal or equitable discharge of a surety or guarantor. The obligation of the Guarantors hereunder shall not be discharged, impaired or otherwise affected by the failure of Purchaser to assert any claim or demand against a Seller or to enforce any remedy hereunder, but shall be reduced by any amount paid by a Seller relating to an obligation guaranteed by the Guarantors hereunder.
(b) The Guarantors have the requisite power and authority to execute and deliver this Agreement and to perform their obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance by the Company when due (whether at Guarantors of this Agreement and the stated maturity, consummation by acceleration or otherwise) the Guarantors of the Obligations.
ii. Anything herein or in any transactions contemplated hereby have been duly and validly authorized by all requisite entity action on the part of the Guarantors, and no other Agreements to entity proceedings or approvals on the contrary notwithstanding, the maximum liability part of the Guarantor hereunder Guarantors are necessary in connection with the execution, delivery and under performance of this Agreement or the other Agreements shall in no event exceed consummation of the amount which can be guaranteed transactions contemplated hereby. This Agreement has been duly executed and delivered by the Guarantor under applicable federal Guarantors and, assuming the due authorization, execution and state lawsdelivery hereof by each other Party, including laws relating to constitutes the insolvency of debtorslegal, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii. The Guarantor agrees that the Obligations may at any time valid and from time to time exceed the amount binding obligation of the liability of Guarantors, enforceable against the Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser hereunder.
iv. The guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations and the obligations of the Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full.
v. No payment made by the Company, the Guarantor or any other Person or received or collected by the Purchaser from the Company, the Guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the Guarantor in respect of the Obligations or any payment received or collected from the Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder until the Obligations are paid in full.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations Guarantors in accordance with the Agreementsits terms.
Appears in 2 contracts
Sources: Purchase Agreement, Purchase Agreement (Perrigo Co)
Guarantee. i. The Guarantor hereby (a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably irrevocably, guarantees to the Purchaser and its successorsAdministrative Agent, indorsees, transferees and assignsfor the benefit of the Secured Parties, the prompt and complete payment and performance by the Company Borrower when due and payable (whether at the stated maturity, by acceleration or otherwise) of the ObligationsBorrower Obligations owed to the Secured Parties.
ii. (b) Anything herein or in any of the other Agreements Loan Document to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder and under the other Agreements Loan Documents shall in no event exceed the amount which that can be guaranteed by the such Guarantor under applicable law, including applicable federal and state laws, including laws relating to the insolvency of debtors; provided that, fraudulent conveyance or transfer or laws affecting to the maximum extent permitted under applicable law, it is the intent of the parties hereto that the rights of creditors generallycontribution of each Guarantor provided in Subsection 2.2 be included as an asset of the respective Guarantor in determining the maximum liability of such Guarantor hereunder.
iii. The (c) Each Guarantor agrees that the Borrower Obligations guaranteed by it hereunder may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser Administrative Agent or any other Secured Party hereunder.
iv. (d) The guarantee contained in this Section 2 shall remain in full force and effect until the earliest to occur of (i) the first date on which all the Loans, all other Borrower Obligations then due and owing, and the obligations of the each Guarantor under the guarantee contained in this Section 2 then due and owing shall have been satisfied by payment in fullfull in cash and the Commitments shall be terminated, notwithstanding that from time to time during the term of the Credit Agreement the Borrower may be free from any Borrower Obligations, (ii) as to any Guarantor, the sale or other disposition of all of the Capital Stock of such Guarantor (to a Person other than the Borrower or a Restricted Subsidiary) that is permitted under the Credit Agreement and (iii) the designation of such Guarantor as an Unrestricted Subsidiary.
v. (e) No payment made by the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person or received or collected by the Purchaser Administrative Agent or any other Secured Party from the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of any of the Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Borrower Obligations or any payment received or collected from the such Guarantor in respect of any of the Borrower Obligations), remain liable for the Borrower Obligations guaranteed by it hereunder up to the maximum liability of the such Guarantor hereunder until the earliest to occur of (i) the first date on which all the Loans and all other Borrower Obligations then due and owing, are paid in full.
vi. Notwithstanding anything to full in cash and the contrary in this AgreementCommitments are terminated, with respect to any defaulted non-monetary Obligations (ii) the specific performance sale or other disposition of which by the Guarantor is not reasonably possible (e.g. the issuance all of the Company’s Common Stock), Capital Stock of such Guarantor (to a Person other than the Borrower or a Restricted Subsidiary) that is permitted under the Credit Agreement and (iii) the designation of such Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreementsas an Unrestricted Subsidiary.
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Nci Building Systems Inc), Credit Agreement (Nci Building Systems Inc)
Guarantee. i. (i) The Guarantor hereby hereby, jointly and severally, absolutely, unconditionally and irrevocably irrevocably, guarantees to the Purchaser and its respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations. The Guarantor’s liability under this Guarantee shall be unlimited, open and continuous for so long as this Guarantee remains in force.
(ii. ) Anything herein or in any of the other Agreements Transaction Document to the contrary notwithstanding, the maximum liability of the Guarantor hereunder and under the other Agreements Transaction Documents shall in no event exceed the amount which can be guaranteed by the Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generallygenerally (after giving effect to the right of contribution set forth in Section 2(b)).
(iii. The ) Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of the Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser hereunder.
(iv. ) The guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations and the obligations of the Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full.
v. (v) No payment made by the Company, the Guarantor Guarantor, any other guarantor or any other Person or received or collected by the Purchaser from the Company, the Guarantor Guarantor, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the Guarantor in respect of the Obligations or any payment received or collected from the Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder until the Obligations are paid in full.
(vi. ) Notwithstanding anything to the contrary in this AgreementGuarantee, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s 's Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s 's failure to perform such Obligations in accordance with the AgreementsTransaction Documents.
Appears in 2 contracts
Sources: Subsidiary Guarantee (Adamis Pharmaceuticals Corp), Subsidiary Guarantee (Adamis Pharmaceuticals Corp)
Guarantee. i. The Guarantor hereby (a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably irrevocably, guarantees to the Purchaser and its successorsAdministrative Agent, indorsees, transferees and assignsfor the ratable benefit of the Secured Parties, the prompt and complete payment and performance by the Company Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Borrower Obligations.
ii. (b) Anything herein or in any of the other Agreements Loan Document to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder and under the other Agreements Loan Documents shall in no event exceed the amount which can be guaranteed by the such Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting debtors (after giving effect to the rights right of creditors generallycontribution established in Section 2.2).
iii. The (c) Each Guarantor agrees that the Borrower Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser any Secured Party hereunder.
iv. (d) The guarantee contained in this Section 2 shall remain in full force and effect until all the Borrower Obligations and the obligations of the each Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full, no Letter of Credit shall be outstanding and the Commitments shall be terminated, notwithstanding that from time to time during the term of the Credit Agreement the Borrower may be free from any Borrower Obligations.
v. (e) No payment made by the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person or received or collected by the Purchaser any Secured Party from the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Borrower Obligations or any payment received or collected from the such Guarantor in respect of the Borrower Obligations), remain liable for the Borrower Obligations up to the maximum liability of the such Guarantor hereunder until the Borrower Obligations are paid in full, no Letter of Credit shall be outstanding and the Commitments are terminated.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Sources: Credit Agreement (Business Sound Inc), Guarantee and Collateral Agreement (Business Sound Inc)
Guarantee. i. The Guarantor hereby (a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably irrevocably, guarantees to the Purchaser Administrative Agent, for the ratable benefit of the Lenders and its their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Borrower Obligations.
ii. (b) Anything herein or in any of the other Agreements Loan Document to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder and under the other Agreements Loan Documents shall in no event exceed the amount which can be guaranteed by the such Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting debtors (after giving effect to the rights right of creditors generallycontribution established in Section 2.2).
iii. The (c) Each Guarantor agrees that the Borrower Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser Administrative Agent or any Lender hereunder.
iv. (d) The guarantee contained in this Section 2 shall remain in full force and effect until all the Borrower Obligations and the obligations of the each Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in fullfull and the Commitments shall be terminated, notwithstanding that from time to time during the term of the Credit Agreement the Borrower may be free from any Borrower Obligations.
v. (e) No payment made by the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person or received or collected by the Purchaser Administrative Agent or any Lender from the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Borrower Obligations or any payment received or collected from the such Guarantor in respect of the Borrower Obligations), remain liable for the Borrower Obligations up to the maximum liability of the such Guarantor hereunder until the Borrower Obligations are paid in fullfull and the Commitments are terminated.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Sources: Credit Agreement (Global Payments Inc), Guarantee and Collateral Agreement (Sba Communications Corp)
Guarantee. i. (a) The Guarantor hereby unconditionally and irrevocably guarantees to the Purchaser Managing Facility Agent for the ratable benefit of the Managing Facility Agent and its successors, indorsees, transferees and assigns, the Purchasers the prompt and complete payment and performance by the Company Seller, the Servicer and RAC when due (whether at the stated maturity, by acceleration maturity or otherwise) of the Obligations. Such guarantee shall be a guarantee of payment.
ii. Anything herein (b) The Guarantor further unconditionally and irrevocably covenants and agrees with the Managing Facility Agent for the ratable benefit of the Managing Facility Agent and the Purchasers that the Guarantor will cause each of the Seller, the Servicer and RAC duly and punctually to perform and observe all of their respective terms, conditions, covenants, agreements and indemnities under the Purchase Agreement and the Repurchase Agreement, including but not limited to the obligations of the Seller pursuant to subsection 2.6 and 2.10 of the Purchase Agreement and the obligations of RAC pursuant to Sections 2 and 3 of the Repurchase Agreement, and any other document executed and delivered by the Seller, the Servicer or RAC in connection therewith, strictly in accordance with the terms thereof, and that if for any reason whatsoever the Seller, the Servicer or RAC shall fail so to perform and observe such terms, conditions, covenants, agreements and indemnities, the Guarantor will duly and punctually perform and observe the same.
(c) The Guarantor further agrees to pay any and all expenses (including, without limitation, all reasonable fees and disbursements of counsel) which may be paid or incurred by the Managing Facility Agent or any Purchaser in enforcing or preserving any of the other Agreements to the contrary notwithstanding, the maximum liability of the Guarantor hereunder and their rights under the other Agreements shall in no event exceed the amount which can be guaranteed by the Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generallythis Guarantee.
iii. (d) The Guarantor agrees that the Obligations may whenever, at any time and time, or from time to time exceed time, it shall make any payment to the amount Managing Facility Agent or any Purchaser on account of its liability hereunder, it will notify the liability of the Guarantor hereunder without impairing the guarantee contained Managing Facility Agent and such Purchaser, if applicable, in writing that such payment is made under this Section 2 or affecting the rights and remedies of the Purchaser hereunder.
ivGuarantee for such purpose. The guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations and the obligations of the Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full.
v. No payment or payments made by the CompanySeller, the Guarantor Servicer, RAC or any other Person or received or collected by the Managing Facility Agent or any Purchaser from the CompanySeller, the Guarantor Servicer, RAC or any other Person by virtue of any action or proceeding or any set-off or appropriation or application application, at any time or from time to time time, in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the Guarantor in respect of the Obligations or any payment received or collected from the Guarantor in respect of the Obligations)payments, remain liable for the Obligations up to the maximum liability of the Guarantor hereunder continue until the Obligations are paid in fullfull and the Commitments are terminated. This Guarantee shall remain in full force and effect until the Obligations are paid in full and the Commitments are terminated, notwithstanding that from time to time prior thereto the Seller, the Servicer and/or RAC may be free from any Obligations.
vi. (e) Notwithstanding anything herein to the contrary contrary, the Guarantor, in this lieu of paying or depositing the amount required to repurchase any Purchased Receivable pursuant to the Purchase Agreement or the Repurchase Agreement, with respect to any defaulted non-monetary Obligations may purchase such Receivable directly from the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations Purchasers in accordance with the Agreementsprovisions of the Purchase Agreement or the Repurchase Agreement, as the case may be, for repurchases as if the Guarantor were the Seller or RAC thereunder.
Appears in 2 contracts
Guarantee. i. The 6.1 In consideration of SLL agreeing to enter into this Agreement with you, we may require you to provide a Guarantor hereby or Guarantors (being person(s) who are acceptable to us). In such event the Guarantors will jointly and severally and unconditionally and irrevocably guarantees irrevocably: (a) guarantee, to SLL as principal obligor(s), and not merely as a surety/sureties, by way of a continuing obligation, the due and punctual compliance by the Lessee with each of the Lessee’s obligations, including the payment of all amounts payable by the Lessee, under, or in connection with, this Agreement; and (b) indemnify SLL from and against any liability of the Lessee directly or indirectly arising by reason of: (i) any obligation of the Lessee (including any obligation to pay money) being or becoming void, voidable or unenforceable; or (ii) the Lessee failing to pay any amount payable under, or to perform any obligation under, this Agreement.
6.2 The guarantee and the indemnity in clause 6.1 shall respectively: (a) constitute obligations separate and independent from each other and from the other obligations under this Agreement; and (b) give rise to separate and independent causes of action.
6.3 No release, delay, granting of time, forbearance, compromise or any other indulgence given by SLL to the Purchaser Lessee, or amendment, alteration, compounding, compromise, release, abandonment, waiver or other variation of any of the provisions of this Agreement, or any other thing by which any of the Guarantor(s) would have been released, if the Guarantor(s) had been surety only or otherwise, shall discharge, release, prejudice or affect the liability of any of the Guarantor(s) as guarantor(s) or indemnifier(s).
6.4 As between the Guarantor(s) and its successors, indorsees, transferees and assignsSLL, the prompt Guarantor(s) may for all purposes be treated as the Lessee, and complete payment SLL shall be under no obligation to take any proceedings against the Lessee or exhaust any of the Lessee’s, powers or remedies against the Lessee before pursuing or enforcing this guarantee and performance indemnity against any of the Guarantor(s).
6.5 The Guarantor(s): (a) shall not claim in the liquidation of the Lessee in competition with SLL; (b) shall not exercise any right of subrogation or contribution, require marshalling, or claim the benefit of any security now or in the future held by SLL; (c) authorises SLL to claim in the Company when due Lessee’s liquidation for all debts owing to the Guarantor(s); (whether at d) waives in favour of SLL all its/their rights against SLL or the stated maturityLessee (or both) to the extent necessary to give effect to the provisions of this section 6; and (e) to the fullest extent permitted by law, by acceleration waive(s) such of the rights of the Guarantor(s) as surety or indemnifier (legal, equitable, statutory or otherwise) of the Obligations.
ii. Anything herein or in any of the other Agreements to the contrary notwithstanding, the maximum liability of the Guarantor hereunder and under the other Agreements shall in no event exceed the amount which can be guaranteed by the Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii. The Guarantor agrees that the Obligations may at any time and from time to time exceed the amount be inconsistent with any of the liability provisions of this guarantee and indemnity.
6.6 The obligations of the Guarantor hereunder without impairing Guarantor(s) under this guarantee and indemnity shall not be conditional, contingent or dependent upon the guarantee contained in this Section 2 validity or affecting the rights and remedies enforceability of the Purchaser hereunderobligations of any other person, and shall be and remain binding notwithstanding that any other person has not executed, or properly executed, this Agreement or given this guarantee and indemnity.
iv. 6.7 The obligations of the Guarantor(s) under this guarantee contained in this Section 2 and indemnity shall remain in full force and effect until all amounts payable by the Obligations Lessee under this Agreement have been paid and until all other obligations imposed on the Lessee have been complied with. Such obligations shall not be reduced or affected by the death, insolvency, liquidation or dissolution of the Guarantor under Lessee or the guarantee contained in this Section 2 shall have been satisfied by payment in full.
v. No payment made by the Company, the Guarantor Guarantor(s) or any other Person or received or collected by the Purchaser from the Company, the Guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the Guarantor in respect of the Obligations or any payment received or collected from the Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder until the Obligations are paid in fullthem.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Sources: Lease Agreement, Lease Agreement
Guarantee. i. 10.1 The Guarantor Guarantor, as primary obligor, hereby unconditionally and irrevocably irrevocably:
(a) guarantees by way of continuing guarantee to the Purchaser Seller the due and its successors, indorsees, transferees punctual performance and assigns, the prompt and complete payment and performance observance by the Company when due Buyer of all its obligations under or pursuant to this Agreement and each other Transaction Document (whether at the stated maturity, by acceleration or otherwise“Buyer’s Guaranteed Obligations”);
(b) agrees that if and each time that the Buyer defaults for any reason whatsoever in the performance of the Obligations.
ii. Anything herein or in any of the other Agreements to the contrary notwithstanding, the maximum liability of the Guarantor hereunder and under the other Agreements shall in no event exceed the amount which can be guaranteed by the Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii. The Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of the Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser hereunder.
iv. The guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations and the obligations of the Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full.
v. No payment made by the Company, the Guarantor or any other Person or received or collected by the Purchaser from the Company, the Guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the Guarantor in respect of the Obligations or any payment received or collected from the Guarantor in respect of the Buyer’s Guaranteed Obligations), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder until the Obligations are paid in full.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only on demand as principal debtor and primary obligor (without requiring the Seller to first take steps against the Buyer or any other person), unconditionally perform (or procure performance of) and satisfy (or procure the satisfaction of) the Buyer’s Guaranteed Obligations in respect of which such default has occurred, in the manner prescribed under this Agreement or any other Transaction Document so that the same benefits would be liable conferred on the Seller as if the Buyer’s Guaranteed Obligations have been duly performed and satisfied by the Buyer; and
(c) agrees that this guarantee is in addition to and without prejudice to and is not in substitution for making any rights which the Purchaser whole on a monetary basis Seller may have or hold for the Companyperformance and observance of the Buyer’s failure Guaranteed Obligations.
10.2 The Guarantor’s obligations under this Clause shall not be affected by any matter or thing which but for this provision might operate to perform affect or prejudice those obligations, including without limitation:
(a) any time or indulgence granted to, or composition with, the Buyer or any other person;
(b) any taking, variation, renewal or release of the Buyer’s Guaranteed Obligations or any right, guarantee, remedy or security from or against the Buyer or any other person;
(c) any neglect to perfect or enforce the Agreement, any other Transaction Document or any right, guarantee, remedy or security from or against the Buyer or any other person; or
(d) any unenforceability or invalidity of the Buyer’s Guaranteed Obligations, so that this Clause 10 shall be construed as if there were no such Obligations in accordance with the Agreementsunenforceability or invalidity.
Appears in 2 contracts
Sources: Sale and Purchase Agreement (Amphenol Corp /De/), Offer Letter (Amphenol Corp /De/)
Guarantee. i. The Guarantor hereby (a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably irrevocably, guarantees to the Purchaser Administrative Agent for the ratable benefit of the Secured Parties and its their respective successors, indorseesendorsees, transferees and assigns, the prompt and complete payment and performance by the Company Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the all Obligations.
ii. Anything herein or in any of the other Agreements to the contrary notwithstanding, the maximum liability of the Guarantor hereunder and under the other Agreements shall in no event exceed the amount which can be guaranteed by the Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii. The Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of the Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser hereunder.
iv. (b) The guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations and the obligations of the each Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in fullfull in cash (other than contingent or indemnification obligations for which no claim has been made) and the Commitments shall be terminated, notwithstanding that from time to time during the term of the Credit Agreement the Borrower may be free from any Obligations; provided that any Guarantor shall be released from its guarantee contained in this Section 2 as provided in Section 8.15.
v. (c) No payment made by the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person or received or collected by the Purchaser Administrative Agent, any Lender or any other Secured Party from the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Obligations or any payment received or collected from the such Guarantor in respect of the Obligations), remain liable for the Borrower Obligations up to the maximum liability of the such Guarantor hereunder until the Borrower Obligations are paid in full.
vifull in cash (other than contingent or indemnification obligations for which no claim has been made) and the Commitments are terminated, provided that any Guarantor shall be released from its guarantee contained in this Section 2 as provided in Section 8.15. Notwithstanding anything to the contrary foregoing, in this Agreement, with respect to any defaulted non-monetary Obligations no event shall the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only Guarantors be liable for making payment of any amount in excess of the Purchaser whole on a monetary basis for the Company’s failure to perform such then outstanding Borrower Obligations in accordance with the Agreementsand, without duplication, Guarantor Obligations.
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Paperweight Development Corp), Guarantee and Collateral Agreement (Paperweight Development Corp)
Guarantee. i. The Guarantor hereby (a) Subject to the provisions of Section 2.1(b), each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably irrevocably, guarantees to the Purchaser Administrative Agent, for the ratable benefit of the Lenders and its their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the ObligationsBorrower Obligations (other than, with respect to any Guarantor, any Excluded Swap Obligations of such Guarantor).
ii. (b) Anything herein or in any of the other Agreements Loan Document to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder and under the other Agreements Loan Documents in its capacity as Guarantor shall in no event exceed the amount which can be guaranteed by the such Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting debtors (after giving effect to the rights right of creditors generallycontribution established in Section 2.2).
iii. The (c) Each Guarantor agrees that the Borrower Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser Administrative Agent or any Lender hereunder.
iv. (d) The guarantee contained in this Section 2 shall remain in full force and effect until all the Borrower Obligations and the obligations of the each Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in fullfull (other than contingent indemnification and expense reimbursement obligations), no Letter of Credit shall be outstanding (unless such Letter of Credit shall have been cash collateralized in accordance with the terms of the Credit Agreement) and the Revolving Commitments shall be terminated, notwithstanding that from time to time during the term of the Credit Agreement the Borrower may be free from the Borrower Obligations.
v. (e) No payment made by the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person or received or collected by the Purchaser Administrative Agent or any Lender from the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Borrower Obligations or any payment received or collected from the such Guarantor in respect of the Borrower Obligations), remain liable for the Borrower Obligations up to the maximum liability of the such Guarantor hereunder until the Borrower Obligations (other than contingent indemnification and expense reimbursement obligations) are paid in full.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance no Letter of which by the Guarantor is not reasonably possible Credit shall be outstanding (e.g. the issuance unless such Letter of the Company’s Common Stock), the Guarantor Credit shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations have been cash collateralized in accordance with the Agreementsterms of the Credit Agreement) and the Revolving Commitments are terminated.
Appears in 2 contracts
Guarantee. i. The Guarantor hereby (a) Each of the Guarantors hereby, jointly and --------- severally, unconditionally and irrevocably irrevocably, guarantees to the Purchaser Administrative Agent, for the ratable benefit of the Lenders and its their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Borrower Obligations.
ii. (b) Anything herein or in any of the other Agreements Loan Document to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder and under the other Agreements Loan Documents shall in no event exceed the amount which can be guaranteed by the such Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting debtors (after giving effect to the rights right of creditors generallycontribution established in Section 2.2).
iii. The (c) Each Guarantor agrees that the Borrower Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser Administrative Agent or any Lender hereunder.
iv. (d) The guarantee contained in this Section 2 shall remain in full force and effect until all the Borrower Obligations and the obligations of the each Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full, no Letter of Credit shall be outstanding and the Commitments shall be terminated, notwithstanding that from time to time during the term of the Credit Agreement the Borrower may be free from any Borrower Obligations.
v. (e) No payment made by the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person or received or collected by the Purchaser Administrative Agent or any Lender from the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-set- off or appropriation or application at any time or from time to time in reduction of or in payment of the Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Borrower Obligations or any payment received or collected from the such Guarantor in respect of the Borrower Obligations), remain liable for the Borrower Obligations up to the maximum liability of the such Guarantor hereunder until the Borrower Obligations are paid in full, no Letter of Credit shall be outstanding and the Commitments are terminated.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Nationwide Credit Inc), Guarantee and Collateral Agreement (Intira Corp)
Guarantee. i. The (a) Each Guarantor hereby hereby, jointly and severally, unconditionally and irrevocably guarantees to the Purchaser Administrative Agent, for the ratable benefit of the Lenders and its their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company each Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the ObligationsBorrower Obligations (other than, with respect to any Guarantor, any Excluded Swap Obligations of such Guarantor). As used in this Guarantee, the term “Lenders” includes affiliates of Lenders which are parties to any Specified Cash Management Agreements or Specified Swap Agreements.
ii. (b) Anything herein or in any of the other Agreements to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder and under the other Agreements shall in no event exceed the amount which can be guaranteed by the such Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting debtors (after giving effect to the rights right of creditors generallycontribution established in Section 2.2).
iii. The (c) Each Guarantor agrees that the Borrower Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 Guarantee or affecting the rights and remedies of the Purchaser Administrative Agent or any Lender hereunder.
iv. The guarantee contained in this Section 2 (d) This Guarantee shall remain in full force and effect until all the Borrower Obligations and the obligations of the each Guarantor under the guarantee contained in this Section 2 Guarantee shall have been satisfied by payment in fullfull in immediately available funds, no Letter of Credit shall be outstanding and the Commitments shall be terminated, notwithstanding that from time to time during the term of the Credit Agreement the Borrowers may be free from any Borrower Obligations.
v. (e) No payment made by the Companyany Borrower, the Guarantor any Guarantor, any other guarantor or any other Person or received or collected by the Purchaser Administrative Agent or any Lender from the Companyany Borrower, the Guarantor any Guarantor, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Borrower Obligations or any payment received or collected from the such Guarantor in respect of the Borrower Obligations), remain liable for the Borrower Obligations up to the maximum liability of the such Guarantor hereunder until the Borrower Obligations are paid in fullfull in immediately available funds, no Letter of Credit shall be outstanding and the Commitments are terminated.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Sources: Credit Agreement (Ralph Lauren Corp), Credit Agreement (Ralph Lauren Corp)
Guarantee. i. (a) The Guarantor Company hereby unconditionally and irrevocably guarantees to the Purchaser Administrative Agent, for the ratable benefit of the Lenders and its their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company Foreign Subsidiary Borrowers when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations of the Foreign Subsidiary Borrowers (the “Subsidiary Obligations”).
ii. Anything herein or in any of the other Agreements to the contrary notwithstanding, the maximum liability of the Guarantor hereunder and under the other Agreements shall in no event exceed the amount which can be guaranteed by the Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii. (b) The Guarantor Company agrees that the Subsidiary Obligations may at any time and from time to time exceed the amount of the liability of the Guarantor Company hereunder that would exist in the absence of this Article X without impairing the guarantee contained in this Section 2 Guarantee or affecting the rights and remedies of the Purchaser Administrative Agent or any Lender hereunder.
iv. The guarantee contained in this Section 2 (c) This Guarantee shall remain in full force and effect until all the Subsidiary Obligations and the obligations of the Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in fullfull in immediately available funds, no Letter of Credit shall be outstanding and the Commitments shall be terminated, notwithstanding that from time to time during the term of this Guarantee the Foreign Subsidiary Borrowers may be free from any Subsidiary Obligations.
v. (d) No payment made by the Companyany Borrower, the Guarantor any Subsidiary Guarantor, any other guarantor or any other Person or received or collected by the Purchaser Administrative Agent or any Lender from the Companyany Borrower, the Guarantor any Subsidiary Guarantor, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Subsidiary Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor Company hereunder which shall, notwithstanding any such payment (other than any payment made by the Guarantor Company in respect of the Subsidiary Obligations or any payment received or collected from the Guarantor Company in respect of the Subsidiary Obligations), remain liable for the Subsidiary Obligations up to the maximum liability of the Guarantor hereunder until the Subsidiary Obligations are paid in fullfull in immediately available funds, no Letter of Credit shall be outstanding and the Commitments are terminated.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Sources: Credit Agreement (Coach Inc), Credit Agreement (Coach Inc)
Guarantee. i. The Guarantor 14.1 PharmaCell will use maximal efforts to do all things necessary, including the provision of funds to the Supplier, to ensure that the Supplier at all times performs and is able to perform its obligations under this Agreement, whether these obligations be for the payment of money, the performance of any activity, the taking of any step, or otherwise. Without prejudice to any other remedy TiGenix may have under this Agreement or otherwise against the Supplier, PharmaCell hereby unconditionally and irrevocably guarantees to TiGenix, on the Purchaser terms and conditions herein, that if there is any Material Breach by the Supplier of any of its successorsobligations under this Agreement which is capable of being remedied; PharmaCell shall use maximal efforts to complete, indorseesor cause to be completed, transferees such obligation(s), subject to all limitations and assignsdefences available to the Supplier. This guarantee shall not be construed to impose upon PharmaCell any obligations greater than, in addition to, or other than, the prompt and complete payment and performance obligations expressly assumed by the Company when due (whether at the stated maturity, by acceleration or otherwise) of the ObligationsSupplier under this Agreement.
ii. Anything herein 14.2 If it has been established by court or in arbitration judgment or binding amicable settlement between TiGenix and the Supplier that TiGenix is entitled to any of damages or other payment from the Supplier, and the Supplier does not pay those damages or does not make that other Agreements payment to the contrary notwithstandingTiGenix as required under this Agreement, the maximum liability of the Guarantor hereunder and under the PharmaCell will pay or cause to pay those damages or make that other Agreements shall in no event exceed the amount which can be guaranteed by the Guarantor under applicable federal and state laws, including laws relating payment to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generallyTiGenix on demand.
iii. The Guarantor agrees 14.3 TiGenix is obligated to exhaust its recourse against the Supplier before being entitled to call on PharmaCell to perform its obligations under this Section 14, it being understood that TiGenix shall be deemed to have exhausted its recourse against the Obligations Supplier after having reached a settlement with the Supplier or having obtained a first judgment against the Supplier followed by one unsuccessful enforcement attempt to recover from the Supplier.
14.4 TiGenix and the Supplier may at any time and from time to time exceed the amount change one or more of the liability provisions of the Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser hereunder.
iv. The guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations and the obligations of the Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full.
v. No payment made by the Company, the Guarantor or any other Person or received or collected by the Purchaser from the Company, the Guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor hereunder which shall, notwithstanding any such payment Agreement (other than any payment made by the Guarantor in respect of the Obligations or any payment received or collected from the Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder until the Obligations are paid in full.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with Section 6) without the Agreementsconsent of, but with a prior notice to, PharmaCell, it being understood that TiGenix and the Supplier cannot create additional obligations on the part of PharmaCell without the prior written approval of PharmaCell.
Appears in 2 contracts
Sources: Share Purchase Agreement (TiGenix NV), Share Purchase Agreement (TiGenix NV)
Guarantee. i. The Guarantor hereby (a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably irrevocably, guarantees to the Purchaser and its successorsAdministrative Agent, indorsees, transferees and assignsfor the benefit of the Secured Parties, the prompt and complete payment and performance by the Company Borrower when due and payable (whether at the stated maturity, by acceleration or otherwise) of the ObligationsBorrower Obligations owed to the Secured Parties.
ii. (b) Anything herein or in any of the other Agreements Loan Document to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder and under the other Agreements Loan Documents shall in no event exceed the amount which that can be guaranteed by the such Guarantor under applicable law, including applicable federal and state laws, including laws relating to the insolvency of debtors; provided that, fraudulent conveyance or transfer or laws affecting to the maximum extent permitted under applicable law, it is the intent of the parties hereto that the rights of creditors generallycontribution of each Guarantor provided in Subsection 2.2 be included as an asset of the respective Guarantor in determining the maximum liability of such Guarantor hereunder.
iii. The (c) Each Guarantor agrees that the Borrower Obligations guaranteed by it hereunder may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser Administrative Agent or any other Secured Party hereunder.
iv. (d) The guarantee contained in this Section 2 shall remain in full force and effect until the earliest to occur of (i) the first date on which all of the Loans, any Reimbursement Obligations and all other Borrower Obligations then due and owing, and the obligations of the each Guarantor under the guarantee contained in this Section 2 then due and owing shall have been satisfied by payment in fullfull in cash, no Letter of Credit shall be outstanding (except for Letters of Credit that have been cash collateralized, or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent) and the Commitments shall be terminated, notwithstanding that from time to time during the term of the Credit Agreement the Borrower may be free from any Borrower Obligations, (ii) as to any Guarantor, a sale or other disposition of all the Capital Stock of such Guarantor (other than to the Borrower or a Subsidiary Guarantor), or any other transaction or occurrence as a result of which such Guarantor ceases to be a Restricted Subsidiary of the Borrower, in each case that is permitted under the Credit Agreement and (iii) as to any Guarantor, such Guarantor becoming an Excluded Subsidiary.
v. (e) No payment made by the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person or received or collected by the Purchaser Administrative Agent or any other Secured Party from the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of any of the Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Borrower Obligations or any payment received or collected from the such Guarantor in respect of any of the Borrower Obligations), remain liable for the Borrower Obligations guaranteed by it hereunder up to the maximum liability of the such Guarantor hereunder until the earliest to occur of (i) the first date on which all the Loans, any Reimbursement Obligations, and all other Borrower Obligations then due and owing are paid in fullfull in cash, no Letter of Credit shall be outstanding (except for Letters of Credit that have been cash collateralized or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent) and the Commitments are terminated, (ii) as to any Guarantor, a sale or other disposition of all the Capital Stock of such Guarantor (other than to the Borrower or a Subsidiary Guarantor), or any other transaction or occurrence as a result of which such Guarantor ceases to be a Restricted Subsidiary of the Borrower, in each case that is permitted under the Credit Agreement and (iii) as to any Guarantor, such Guarantor becoming an Excluded Subsidiary.
vi. (f) Notwithstanding anything herein or in any other Loan Document to the contrary in contrary, including Subsection 2.6 hereof, (i) the obligations of Holdings under this Agreement, with including in respect to any defaulted non-monetary Obligations of its Guarantor Obligations, are expressly limited recourse obligations of Holdings, and such obligations shall be payable solely from, limited to, and shall in no event exceed, Holdings’ Pledged Collateral, and (ii) upon the specific performance collection, sale or disposition of, or other realization upon, all of which Holdings’ Pledged Collateral by the Guarantor is not reasonably possible (e.g. the issuance or on behalf of the Company’s Common Stock)Collateral Agent or any Secured Party, whether pursuant to Section 6 of this Agreement or otherwise, the obligations of Holdings under this Agreement, including in respect of its Guarantor Obligations, shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure irrevocably and indefeasibly terminated and shall not be subject to perform such Obligations in accordance with the Agreementsreinstatement under any circumstance.
Appears in 2 contracts
Sources: First Lien Credit Agreement (PharMEDium Healthcare Holdings, Inc.), First Lien Guarantee and Collateral Agreement (PharMEDium Healthcare Holdings, Inc.)
Guarantee. i. The (a) Guarantor hereby unconditionally and irrevocably guarantees to the Purchaser Lender and its successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations.
ii. Anything herein (b) The Guarantor further agrees to pay any and all reasonable expenses (including, without limitation, all fees and disbursements of counsel) which may be paid or incurred by the Lender in enforcing, or obtaining advice of counsel in respect of, any rights with respect to, or collecting, any or all of the other Agreements to the contrary notwithstandingObligations and/or enforcing any rights with respect to, the maximum liability of the Guarantor hereunder and under the other Agreements shall in no event exceed the amount which can be guaranteed by or collecting against, the Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generallythis Guarantee.
iii. (c) The Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of the Guarantor hereunder without impairing the guarantee contained in this Section 2 Guarantee or affecting the rights and remedies of the Purchaser Lender hereunder.
iv. The guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations and the obligations of the Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full.
v. (d) No payment or payments made by the CompanyBorrower, the Guarantor any other guarantor or any other Person or received or collected by the Purchaser Lender from the CompanyBorrower, the Guarantor any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor hereunder which shall, notwithstanding any such payment (or payments, other than any payment payments made by the Guarantor in respect of the Obligations or any payment payments received or collected from the Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder until the Obligations are indefeasibly paid in full.
vi. Notwithstanding anything (e) The Guarantor agrees that whenever, at any time, or from time to time, it shall make any payment to the contrary Lender on account of its liability hereunder, it will notify the Lender in writing that such payment is made under this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable Guarantee for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreementspurpose.
Appears in 2 contracts
Sources: Guarantee (XZERES Corp.), Guarantee (Charys Holding Co Inc)
Guarantee. i. The Guarantor hereby (a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably irrevocably, guarantees to the Purchaser Agent, for the ratable benefit of the Lenders and its their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Borrower Obligations.
ii. (b) Anything herein or in any of the other Agreements Loan Document to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder and under the other Agreements Loan Documents shall in no event exceed the amount which can be guaranteed by the such Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting debtors (after giving effect to the rights right of creditors generallycontribution established in Section 2.2).
iii. The (c) Each Guarantor agrees that the Borrower Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser Agent or any Lender hereunder.
iv. (d) The guarantee contained in this Section 2 shall remain in full force and effect until all the Borrower Obligations and the obligations of the each Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full, no Letter of Credit shall be outstanding and the Commitments shall be terminated, notwithstanding that from time to time during the term of the Credit Agreement the Borrower may be free from any Borrower Obligations.
v. (e) No payment made by the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person or received or collected by the Purchaser Agent or any Lender from the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Borrower Obligations or any payment received or collected from the such Guarantor in respect of the Borrower Obligations), remain liable for the Borrower Obligations up to the maximum liability of the such Guarantor hereunder until the Borrower Obligations are paid in full, no Letter of Credit shall be outstanding and the Commitments are terminated.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Aftermarket Technology Corp), Guarantee and Collateral Agreement (Aftermarket Technology Corp)
Guarantee. i. The Guarantor (a) New Media hereby unconditionally and irrevocably guarantees to each Holder of Notes and to the Purchaser Trustee and its successors, indorsees, transferees successors and assigns, (i) the prompt full and complete punctual payment and performance by when due of all monetary obligations of the Company when due under the Indenture and (whether at ii) the stated maturity, by acceleration or otherwise) full and punctual performance within applicable grace periods of all other obligations of the ObligationsCompany under the Indenture. New Media further agrees that its obligations hereunder shall be unconditional, irrespective of the absence or existence of any action to enforce the same, the recovery of any judgment against the Company (except to the extent such judgment is paid) or any waiver or amendment of the provisions of the Indenture or the Notes to the extent that any such action or any similar action would otherwise constitute a legal or equitable discharge or defense of New Media (except that such waiver or amendment shall be effective in accordance with its terms).
ii. Anything herein (b) New Media further agrees that its Guarantee constitutes a guarantee of payment, performance and compliance and not merely of collection.
(c) New Media further agrees to waive presentment to, demand of payment from and protest to the Company of its Guarantee, and also waives diligence, notice of acceptance of its Guarantee, presentment, demand for payment, notice of protest for nonpayment, the filing of claims with a court in the event of merger or in any bankruptcy of the Company, any right to require a proceeding first against the Company or any other Agreements Person, and all other defenses based on suretyship. The obligations of New Media shall not be affected by any failure or delay on the part of the Trustee to exercise any right or remedy under the Indenture or the Notes.
(d) The obligation of New Media to make any payment hereunder may be satisfied by causing the Company to make such payment. If any Holder of any Note or the Trustee is required by any court or otherwise to return to the contrary notwithstandingCompany or New Media or any custodian, trustee, liquidator or other similar official acting in relation to the Company or New Media any amount paid by either of them to the Trustee or such Holder, the maximum liability of the Guarantor hereunder and under the other Agreements shall in no event exceed the amount which can be guaranteed by the Guarantor under applicable federal and state lawsGuarantee, including laws relating to the insolvency of debtorsextent theretofore discharged, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii. The Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of the Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser hereunder.
iv. The guarantee contained in this Section 2 shall remain be reinstated in full force and effect until all the Obligations and the obligations of the Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in fulleffect.
v. No payment made by the Company, the Guarantor or any other Person or received or collected by the Purchaser from the Company, the Guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the Guarantor in respect of the Obligations or any payment received or collected from the Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder until the Obligations are paid in full.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Sources: First Supplemental Indenture (Gannett Co., Inc.), First Supplemental Indenture (Gannett Media Corp.)
Guarantee. i. (a) The Guarantor hereby unconditionally and irrevocably guarantees to the Purchaser and its successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company when due (whether in consideration of ▇▇▇▇▇▇▇ Fuel having entered into this agreement at the stated maturity, by acceleration or otherwiseGuarantor’s request:
(i) guarantees that the Customer will perform all its obligations under this agreement for the Term and during any period of overholding after the end of the ObligationsTerm;
(ii) must pay on demand any amount which ▇▇▇▇▇▇▇ Fuels is entitled to recover from the Customer under this agreement whether in respect of the term or any period of overholding; and
(iii) indemnifies ▇▇▇▇▇▇▇ Fuels against all loss resulting from ▇▇▇▇▇▇▇ Fuels having entered into this agreement whether from the Customer’s failure to perform its obligations under it or from this agreement being or becoming unenforceable against the Customer and whether in respect of the term or any period of overholding.
ii. Anything herein or in any of the other Agreements to the contrary notwithstanding, the maximum (b) The liability of the Guarantor hereunder will not be affected by:
(i) ▇▇▇▇▇▇▇ Fuels granting the Customer or a Guarantor time or any other indulgence, or agreeing not to ▇▇▇ the Customer or another Guarantor;
(ii) failure by any Guarantor to sign this document; or
(iii) transfer of the freehold of the Premises.
(c) The Guarantor agrees that:
(i) ▇▇▇▇▇▇▇ Fuels may retain all money received including dividends from the Customer’s bankrupt estate, and need allow the Guarantor a reduction in its liability under this guarantee only to the other Agreements shall in no event exceed extent of the amount which can be guaranteed by received;
(ii) the Guarantor under applicable federal and state laws, including laws relating must not seek to recover money from the Customer to reimburse the Guarantor for payments made to ▇▇▇▇▇▇▇ Fuels until ▇▇▇▇▇▇▇ Fuels has been paid in full;
(iii) the Guarantor must not prove in the bankruptcy or winding up of the Customer for any amount which ▇▇▇▇▇▇▇ Fuels has demanded from the Guarantor; and
(iv) the Guarantor must pay ▇▇▇▇▇▇▇ Fuels all money which ▇▇▇▇▇▇▇ Fuels refunds to the insolvency of debtors, fraudulent conveyance Customer’s liquidator or transfer or laws affecting trustee in bankruptcy as preferential payments received from the rights of creditors generallyCustomer.
iii(d) If any of the Customer’s obligations are unenforceable against the Customer, then this clause is to operate as a separate indemnity and the Guarantor indemnifies ▇▇▇▇▇▇▇ Fuels against all Liability resulting from ▇▇▇▇▇▇▇ Fuels inability to enforce performance of those obligations. The Guarantor agrees that the Obligations may at any time and from time to time exceed must pay ▇▇▇▇▇▇▇ Fuels the amount of the liability of loss resulting from the Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser hereunderunenforceability.
iv. The (e) If there is more than one Guarantor, this guarantee contained binds them separately, together and in this Section 2 shall remain in full force and effect until all the Obligations and the obligations of the Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in fullany combination.
v. No payment made by the Company, the Guarantor or any other Person or received or collected by the Purchaser from the Company, the Guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the Guarantor in respect of the Obligations or any payment received or collected from the Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder until the Obligations are paid in full.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Sources: Fuel Supply and Equipment Loan Agreement, Fuel Supply and Equipment Loan Agreement
Guarantee. i. The (a) Each Guarantor hereby hereby, jointly and severally, unconditionally and irrevocably guarantees to the Purchaser Administrative Agent, for the ratable benefit of the Lenders and its their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company each Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Borrower Obligations.
ii. (b) Anything herein or in any of the other Agreements to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder and under the other Agreements shall in no event exceed the amount which can be guaranteed by the such Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting debtors (after giving effect to the rights right of creditors generallycontribution established in Section 2.2).
iii. The (c) Each Guarantor agrees that the Borrower Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 Guarantee or affecting the rights and remedies of the Purchaser Administrative Agent or any Lender hereunder.
iv. The guarantee contained in this Section 2 (d) This Guarantee shall remain in full force and effect until all the Borrower Obligations and the obligations of the each Guarantor under the guarantee contained in this Section 2 Guarantee shall have been satisfied by payment in fullfull in immediately available funds, no Letter of Credit shall be outstanding and the Commitments shall be terminated, notwithstanding that from time to time during the term of the Credit Agreement the Borrowers may be free from any Borrower Obligations.
v. (e) No payment made by the Companyany Borrower, the Guarantor any Guarantor, any other guarantor or any other Person or received or collected by the Purchaser Administrative Agent or any Lender from the Companyany Borrower, the Guarantor any Guarantor, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Borrower Obligations or any payment received or collected from the such Guarantor in respect of the Borrower Obligations), remain liable for the Borrower Obligations up to the maximum liability of the such Guarantor hereunder until the Borrower Obligations are paid in fullfull in immediately available funds, no Letter of Credit shall be outstanding and the Commitments are terminated.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Sources: Credit Agreement (Coach Inc), Credit Agreement (Coach Inc)
Guarantee. i. 7.1 The Guarantor hereby irrevocably and unconditionally and irrevocably guarantees to the Purchaser Trustee:
(a) the due and its successors, indorsees, transferees and assigns, the prompt and complete punctual payment and performance by the Company when due (whether at the stated maturity, by acceleration or otherwise) in accordance with these presents of the Obligations.principal of and interest (if any) on all Notes issued by STUF and of any other amounts payable by STUF under these presents in relation to such Notes and the relative Coupons; and
ii. Anything herein or in any (b) the due and punctual performance and observance by STUF of each of the other Agreements provisions of these presents on its part to be performed or observed in relation to any Notes and Coupons issued by it.
7.2 If STUF fails for any reason whatsoever punctually to pay any such principal, interest or other amount, the Guarantor shall cause each and every such payment to be made as if the Guarantor instead of STUF were expressed to be the primary obligor of the relevant Note or Coupon and not merely as surety (but without affecting STUF’s obligations) to the contrary notwithstandingintent that the holder thereof shall receive the same amounts in respect of principal, the maximum liability of the Guarantor hereunder and under the interest or such other Agreements shall in no event exceed the amount which can be guaranteed as would have been receivable had such payments been made by STUF.
7.3 If any payment received by the Guarantor under applicable federal and state laws, including laws relating Trustee or any Noteholder or Couponholder pursuant to the provisions of these presents in relation to the Notes or the Coupons issued by STUF shall (whether on the subsequent bankruptcy, insolvency or corporate reorganisation of debtorsSTUF or other such similar event) be avoided or set aside for any reason, fraudulent conveyance such payment shall not be considered as discharging or transfer or laws affecting the rights of creditors generally.
iii. The Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of diminishing the liability of the Guarantor hereunder without impairing and this guarantee shall continue to apply as if such payment had at all times remained owing by STUF and the guarantee contained Guarantor shall indemnify the Trustee and the relative Noteholders and/or Couponholders (as the case may be) in this Section 2 or affecting the rights and remedies of the Purchaser hereunder.
iv. The guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations and respect thereof provided that the obligations of the Guarantor under this Clause 7.3 shall, as regards each payment made to the Trustee or any Noteholder or Couponholder which is avoided or set aside, be contingent upon such payment being reimbursed to STUF or other persons entitled through STUF.
7.4 The Guarantor hereby agrees that its obligations under this guarantee contained shall be unconditional and that the Guarantor shall be fully liable under this guarantee irrespective of the validity, regularity, legality or enforceability against STUF of, or of any defence or counter-claim whatsoever available to STUF in this Section 2 shall relation to, its obligations under these presents, whether or not any action has been taken to enforce the same or any judgment obtained against STUF, whether or not any of the other provisions of these presents have been satisfied modified, whether or not any time, indulgence, waiver, authorisation or consent has been granted to STUF by payment in full.
v. No payment or on behalf of the relative Noteholders or the relative Couponholders or the Trustee, whether or not any determination has been made by the CompanyTrustee pursuant to Clause 19.1, whether or not there have been any dealings or transactions between STUF, any of the relative Noteholders or Couponholders or the Trustee, whether or not STUF has been dissolved, liquidated, merged, consolidated, bankrupted or has changed its status, functions, control or ownership, whether or not STUF has been prevented from making payment by foreign exchange provisions applicable at its place of registration or incorporation and whether or not any other circumstances have occurred which might otherwise constitute a legal or equitable discharge of or defence to a guarantor. Accordingly, the Guarantor validity of this guarantee shall not be affected by reason of any invalidity, irregularity, illegality or unenforceability of all or any other Person or received or collected by the Purchaser from the Company, the Guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations obligations of STUF under these presents and this guarantee shall not be deemed to modify, reduce, release or otherwise affect discharged nor shall the liability of the Guarantor hereunder which shallunder this guarantee be affected by any act, notwithstanding any such payment (other than any payment made by thing or omission or means whatever whereby its liability would not have been discharged if it had been the Guarantor in respect of the Obligations or any payment received or collected from the Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder until the Obligations are paid in fullprincipal debtor.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Sources: Fifteenth Supplemental Trust Deed, Thirteenth Supplemental Trust Deed
Guarantee. i. The (i) Each Guarantor hereby hereby, unconditionally and irrevocably irrevocably, guarantees to the Purchaser and its successors, indorsees, transferees and assigns, Holder the prompt and complete payment and performance by the Company Loan Parties when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations.
(ii. Anything herein or in any ) All obligations of the other Agreements to the contrary notwithstanding, the maximum liability of the Guarantor hereunder and under the other Agreements shall in no event exceed the amount which can be guaranteed by the each Guarantor under applicable federal this Section 15 (this “Guarantee”) shall remain in full force and state lawseffect until the Obligations are paid in full in cash, including laws relating notwithstanding that from time to time prior thereto the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generallyMaker may be free from any Obligations.
(iii. The ) Each Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 Guarantee or affecting the rights and remedies of the Purchaser Holder hereunder.
(iv. The guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations and the obligations of the Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full.
v. ) No payment or payments made by the CompanyMaker, the Guarantor any Guarantor, any other guarantor or any other Person or received or collected by the Purchaser Holder from the CompanyMaker, the Guarantor any Guarantor, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (or payments other than any payment payments made by the such Guarantor in respect of the Obligations or any payment payments received or collected from the such Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the such Guarantor hereunder until the Obligations (but excluding reimbursement and indemnity obligations which survive but are not due and payable) are paid in full.
vi. Notwithstanding anything (v) Each Guarantor agrees that whenever, at any time, or from time to time, it shall make any payment to the contrary Holder on account of its liability hereunder, it will notify the Holder in writing that such payment is made under this AgreementGuarantee for such purpose, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Companyprovided that such Guarantor’s failure to perform give such Obligations in accordance with notice shall not affect the Agreementsvalidity or effectiveness of such payment.
Appears in 2 contracts
Sources: Unsecured Promissory Note (Childrens Place, Inc.), Unsecured Promissory Note (Childrens Place, Inc.)
Guarantee. i. (a) The Guarantor Guarantor, hereby unconditionally subsidiary and irrevocably guarantees to the Purchaser and its successorsBeneficiary the full, indorsees, transferees and assigns, the prompt due and complete payment of any and performance by all amounts that XYZ shall owe the Company when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations.
ii. Anything herein or in any of the other Agreements to the contrary notwithstanding, the maximum liability of the Guarantor hereunder and Beneficiary under the other Agreements shall in no event exceed Contract, as well as the amount which can be guaranteed by due and timely performance of any and all obligations of XYZ under the Guarantor under applicable federal and state laws, including laws relating Contract up to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii. The Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability XXXXXX (XXXXX) millions of the Guarantor hereunder without impairing the dollars. This Guarantee is a guarantee contained in this Section 2 or affecting the rights of payment and remedies performance and not merely a guarantee of the Purchaser hereunder.
iv. The guarantee contained in this Section 2 collection and shall remain in full force and effect until all obligations of XYZ guaranteed hereunder have been paid or performed in their entirety, subject to article 2 of this Guarantee.
(b) The guarantee of payment and performance provided in this Guarantee is a continuing and absolute guarantee and shall apply to all obligations under the Obligations and Contract as they arise. Without limiting the generality of the foregoing, the guarantee of the Guarantor shall not be released, discharged or otherwise affected by: (i) any changes in the name, authorized activities, legal existence, structure, personnel or direct or indirect ownership of XYZ, (ii) the insolvency, bankruptcy, reorganization or any other similar proceeding affecting XYZ or its respective assets, or (iii) any other act or omission or delay of any kind by XYZ, the Beneficiary or any other Person. The guarantee shall specifically cover the obligations of the Guarantor under Contract and by no reason shall be executed for those derived from any non-contractual liability to which shall apply the guarantee contained in this Section 2 shall have been satisfied by payment in fullApplicable Law regardless the content of the Contract and the Guarantee.
v. No payment made (c) To the extent permitted by the CompanyApplicable Laws, the Guarantor agrees that, without notice and without requiring any confirmation, consent or any other Person or received or collected by the Purchaser from the Companyadditional guarantee on its part, the Guarantor or any other Person by virtue obligations of any action or proceeding or any set-off or appropriation or application at any time or XYZ guaranteed hereunder may be from time to time in reduction of time, pursuant to the Contract, be renewed, extended, increased, accelerated, modified, amended, settled, waived, released or in payment rescinded, all of the Obligations shall be deemed to modify, reduce, release foregoing without impairing or otherwise affect affecting in any way the liability obligation of the Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the Guarantor in respect of the Obligations or any payment received or collected from the Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder until the Obligations are paid in full.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with this Guarantee.
(d) This Guarantee constitutes the AgreementsBeneficiary will related to the fact that the Contractor guaranteed by the Guarantor, complied with the requirements described in section (c) of the Article 17.2 of this Contract at full satisfaction of the Beneficiary and selected to determine the guarantee amount in accordance with section (a) of this Article.
Appears in 2 contracts
Sources: License Contract for the Exploration and Extraction of Hydrocarbons (Deepwater), License Contract for the Exploration and Extraction of Hydrocarbons (Deepwater)
Guarantee. i. The Guarantor hereby (a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably irrevocably, guarantees to the Purchaser Administrative Agent, for the ratable benefit of the Lenders and its their respective successors, indorsees, transferees and assignsassigns permitted hereunder, the prompt and complete payment and performance by the Company Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations.
ii. (b) Anything herein or in any of the other Agreements Loan Document to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder under this Section 10.01 and under the other Agreements Loan Documents shall in no event exceed the amount which can be guaranteed by the Guarantor is permitted under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii. The (c) Each Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 Article X or affecting the rights and remedies of the Purchaser Administrative Agent or any Lender hereunder.
iv. (d) The guarantee contained in this Section 2 Article X shall remain in full force and effect until all the Obligations and the obligations of the each Guarantor under the guarantee contained in this Section 2 Article X shall have been satisfied by payment in fullfull (other than contingent reimbursement and indemnification obligations not yet accrued and payable) and the Commitments shall be terminated.
v. (e) No payment made by the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person or received or collected by the Purchaser Administrative Agent or any Lender from the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Obligations or any payment received or collected from the such Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the such Guarantor hereunder until the Obligations are paid in fullfull (other than contingent reimbursement and indemnification obligations not yet accrued and payable) and the Commitments are terminated.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Sources: Credit and Guarantee Agreement, Credit and Guarantee Agreement
Guarantee. i. (a) The Guarantor Parent hereby unconditionally and irrevocably guarantees that, at the Closing, the Purchaser will have the funds available to pay the Purchase Price. The Parent hereby further guarantees to the Purchaser and its successors, indorsees, transferees and assigns, Seller the prompt and complete payment and performance performance, when due, of the liabilities and obligations of the Purchaser (including any assignee of the Purchaser permitted under Section 12.4 hereof) to the Seller hereunder, in accordance with the terms of this Agreement and pursuant to all amendments, supplements, renewals and restatements of the Agreement (the "Obligations"); provided that the enforcement by the Company Seller of the guarantee against the Parent shall be subject to the terms of this Section 12.14.
(b) If the Purchaser (including any assignee of the Purchaser permitted under Section 12.4 hereof) fails to pay or perform any Obligations for which it is liable, when and as the same shall become due and payable or performable (whether at the stated maturity, by acceleration or otherwise), the Seller shall make written demand on the Purchaser for the payment or performance of such Obligations, as the case may be, and if the Seller is unable to obtain such payment or performance from the Purchaser, as the case may be, and such Obligations are not in dispute between the Seller and the Purchaser, then after thirty (30) days from the date of the written demand, the Seller may make written demand on the Parent for such non-disputed Obligations. In the event any Obligation is in dispute between the Seller and the Purchaser, the Seller and the Purchaser must have fully resolved such dispute either by the agreement of the Seller or the Purchaser or pursuant to final resolution of the dispute through litigation or arbitration before the Seller shall be entitled to make written demand on the Parent pursuant to this Section 12.14. Subject to the preceding sentence, in the event that the Seller makes a demand on the Parent for an Obligation that is the subject of a dispute between the Seller and the Purchaser, the Parent shall have no obligation under this Agreement to pay or perform, as the case may be, such Obligation.
ii. Anything herein or in any of the other Agreements to the contrary notwithstanding, the maximum liability of the Guarantor hereunder and under the other Agreements shall in no event exceed the amount which can be guaranteed by the Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii. The Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of the Guarantor hereunder without impairing the guarantee contained (c) Nothing in this Section 2 or affecting the rights and remedies of the Purchaser hereunder.
iv. The guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations and the obligations of the Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full.
v. No payment made by the Company, the Guarantor or any other Person or received or collected by the Purchaser from the Company, the Guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations Agreement shall be deemed to modify, reduce, release or otherwise affect the liability guarantee any obligation of the Guarantor hereunder which shall, notwithstanding any such payment (Purchaser other than any payment made by as specifically stated in the Guarantor in respect first sentence of Section 12.14(a) above and other than the Purchaser's Obligations or any payment received or collected from the Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability Seller and arising out of the Guarantor hereunder until the Obligations are paid in full.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Alleghany Corp /De), Stock Purchase Agreement (Alleghany Corp /De)
Guarantee. i. The 9.1 In consideration of the Lender giving loan to the Borrower/s under this Agreement as well as under the Existing Agreement and at the request of the Borrower/s, the Guarantor hereby unconditionally guarantees repayment I the said loan together with all costs, charges and irrevocably expenses payable hereunder and under Existing Agreement and agrees that his obligation shall be concurred with those of the Borrower/s in all respects as if he himself was the Borrower/s and hereby guarantees to the Purchaser Lender:
a) The regular and its successors, indorsees, transferees punctual payment of all sums due under this Agreement and assigns, under the prompt Existing Agreement and complete payment the due performance and performance observance by the Company when due (whether at the stated maturity, by acceleration or otherwise) Borrower/s of the Obligationsterms and conditions of this Agreement as well as under Existing Agreement; CG
b) To pay to the Lender all monies becoming due and payable to the Lender under this Agreement as well as under the Existing Agreement;
c) The liability of the guarantor in respect of the sums due and payable under this Agreement as well as under the Existing Agreement shall be joint and coextensive with that of the Borrower/s
9.2 THE GUARANTOR HEREBY DECLARES
a) that the Lender shall be liberty to ▇▇▇ the Borrower/s and the Guarantor jointly and/ or severally of shall be entitled to proceed against the Guarantor as if the guarantor is the principal debtor;
b) that he/they shall have no claim against the Borrower/s and any other benefits to which sureties may otherwise be entitled.
ii. Anything herein c) that the neglect or forbearance of the Lender in enforcing payment of any monies due under this Agreement or under the Existing Agreement of any other indulgence shown to the Borrower/s shall not release the Borrower/s or the Guarantor from the several obligations under this Agreement or in any of the other Agreements to the contrary notwithstanding, the maximum liability of the Guarantor way hereunder or under Existing Agreement and under the other Agreements shall not in no event exceed the amount which can be guaranteed by the Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting any way affect the rights of creditors generally.the Lender in respect thereof; G
iii. The Guarantor agrees d) that the Obligations may at any time and from time to time exceed the amount of the liability of the Guarantor hereunder without impairing the guarantee indemnities/ guarantees contained in this Section 2 or affecting the rights and remedies of the Purchaser hereunder.
iv. The guarantee contained in this Section 2 herein shall remain in full force and effect until all for the Obligations entire period of this Agreement as well as the Existing Agreement and shall survive the obligations termination of this Agreement as well as that of Existing Agreement in so far as they relate to events which occurred during the period of the Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full.
v. No payment made by the Company, the Guarantor aforesaid Agreement or any other Person renewals hereof;
e) not to assign, transfer, revoke, cancel, alter, modify or received or collected by withdraw this guarantee without the Purchaser from the Company, the Guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment prior written consent of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the Guarantor in respect of the Obligations or any payment received or collected from the Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder until the Obligations are paid in fullLender.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Sources: Loan Cum Hypothecation Agreement, Loan Cum Hypothecation Agreement
Guarantee. i. The Guarantor hereby unconditionally For the purposes of this clause 20 the following definition shall apply:
a) Guaranteed obligations: all monies, debts and irrevocably guarantees to the Purchaser and its successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company when due (whether at the stated maturity, by acceleration or otherwise) liabilities of the Obligations.
ii. Anything herein or in any of the other Agreements to the contrary notwithstanding, the maximum liability of the Guarantor hereunder and under the other Agreements shall in no event exceed the amount which can be guaranteed by the Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii. The Guarantor agrees that the Obligations may at any time and nature from time to time exceed due or owing from or incurred by the amount hirer to HML.
b) In consideration of HML entering into this agreement, the guarantor guarantees to HML that whenever the hirer does not pay any of the guaranteed obligations as and when they fall due, the guarantor shall make due and punctual payment to HML on demand of the guaranteed obligations.
c) If the guaranteed obligations are, or become, unenforceable, invalid or illegal, the guarantor agrees to indemnify and keep indemnified HML in full and on demand from and against all and any losses, costs and expenses suffered on incurred by HML arising out of, or in connection with, any failure of the hirer to perform or discharge the guaranteed obligations.
d) The guarantor as principal obligor and as a separate and independent obligation and liability from its obligations and liabilities under clause 19.2 agrees to indemnify and keep indemnified HML in full and on demand from and against all and any losses, costs and expenses suffered or incurred by HML arising out of, or in connection with, any failure of the Hirer to perform or discharge the guaranteed obligations.
e) This guarantee is and shall at all times be a continuing security and shall cover the ultimate balance of all monies payable under this agreement, irrespective of any intermediate payment or discharge in full or in part of the Guaranteed Obligations.
f) The liability of the Guarantor hereunder without impairing guarantor under this guarantee shall not be reduced, discharged or otherwise adversely affected by:
i. HML will contact the guarantee contained in this Section 2 or affecting Hirer as soon as reasonably possible to notify the rights Hirer; and
ii. HML’s obligations under the contract will be suspended and remedies the time for performance of HML’s obligations will be extended for the duration of the Purchaser hereunderevent outside our control. Where the event outside our control affects HML’s delivery of products to the hirer, HML will arrange a new delivery date with the hirer after the event outside our control is over.
iv. g) The guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations and the obligations of guarantor waives any right it may have to require HML (or any trustee or agent on its behalf) to proceed against or enforce any other right to claim for payment, against any person before claiming from the Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in fullclause 20.
v. No payment made by the Company, the Guarantor or any other Person or received or collected by the Purchaser from the Company, the Guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the Guarantor in respect of the Obligations or any payment received or collected from the Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder until the Obligations are paid in full.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Sources: Hire Agreement, Hire Agreement
Guarantee. i. The Subject to the terms and conditions set forth in this Agreement, Guarantor hereby unconditionally and irrevocably (i) absolutely guarantees to the Purchaser Company, as the primary obligor and its successors, indorsees, transferees and assignsnot merely as surety, the prompt due and complete punctual observance, payment, performance and discharge of the obligations of Parent and Purchaser pursuant to this Agreement including the due and punctual payment of all amounts which are or may become due and payable by Parent or Purchaser hereunder when and as the same shall become due and payable and (ii) acknowledges and agrees to take all actions necessary to satisfy Parent and the Surviving Corporation’s obligations with respect to Cashed Out Options and Cashed Out RSUs pursuant to Section 2.8 (the “Obligations”). In furtherance of the foregoing, Guarantor acknowledges that the Company may, in its sole discretion, bring and prosecute a separate action or actions against the Guarantor for the full amount of the Obligations, regardless of whether any action is brought against Parent. To the fullest extent permitted by law, the Guarantor hereby expressly and unconditionally waives any and all rights or defenses arising by reason of any law, promptness, diligence, notice of the acceptance of this guarantee and of the Obligation, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the Obligation incurred and all other notices of any kind (other than notices required by this Agreement and defenses that are available to Parent and Purchaser). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by this Agreement and that the waivers set forth in this Guarantee are knowingly made in contemplation of such benefits. The execution and delivery of this Agreement by the Guarantor and the performance by the Company when due (whether at Guarantor of its obligations contemplated hereby have been duly and validly authorized by all necessary corporate action on the stated maturity, by acceleration or otherwise) part of the Obligations.
ii. Anything herein or in any of Guarantor, and no other corporate proceedings on the other Agreements to the contrary notwithstanding, the maximum liability part of the Guarantor hereunder and under the other Agreements shall in no event exceed the amount which can be guaranteed by the Guarantor under applicable federal and state laws, including laws relating are necessary to authorize this Agreement or to perform its obligations hereunder. Subject to the insolvency terms and conditions of debtorsthis Agreement (as it may be modified, fraudulent conveyance amended or transfer or laws affecting the rights of creditors generally.
iii. The Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of the Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser hereunder.
iv. The guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations and the obligations of the Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full.
v. No payment made by the Company, the Guarantor or any other Person or received or collected by the Purchaser from the Company, the Guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or waived from time to time in reduction accordance with its terms), the liabilities and obligations of or in payment of the Obligations Guarantor pursuant to this Agreement shall not be deemed to modifyreleased, reduce, release discharged or otherwise affect affected by (x) any modification, amendment, waivers or extensions under this Agreement (except to the liability extent of any such modification, amendment, waivers or extensions that is entered into without the prior consent of Guarantor) or (y) any change in the corporate existence, structure or ownership of Parent or Purchaser. Guarantor hereby waives any right, whether legal or equitable, statutory or non-statutory, to require any person to proceed against or take any action against or pursue any remedy with respect to Parent or Purchaser or any other person or make presentment or demand for performance or give any notice of nonperformance before the Company may enforce its rights hereunder which shallagainst Guarantor. For the avoidance of doubt, notwithstanding any such payment (other than any payment made by the Guarantor in respect of the Obligations or any payment received or collected from the Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder until the Obligations are paid in full.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations this Section 9.11 and the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor guarantee contemplated hereby shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations terminate in accordance with the AgreementsSection 8.2 upon a termination of this Agreement pursuant to Section 8.1.
Appears in 2 contracts
Sources: Merger Agreement (J2 Global, Inc.), Merger Agreement (Everyday Health, Inc.)
Guarantee. i. The Guarantor hereby (a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably irrevocably, guarantees to the Purchaser Administrative Agent, for the ratable benefit of the Lenders and its their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Borrower Obligations.
ii. (b) Anything herein or in any of the other Agreements Credit Document to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder and under the other Agreements Credit Documents shall in no event exceed the amount which can be guaranteed by the such Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting debtors (after giving effect to the rights right of creditors generallycontribution established in Section 2.2).
iii. The (c) Each Guarantor agrees that the Borrower Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser Administrative Agent or any Lender hereunder.
iv. (d) The guarantee contained in this Section 2 shall remain in full force and effect until all the Borrower Obligations and the obligations of the each Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full, no Letter of Credit shall be outstanding and the Commitments shall be terminated, notwithstanding that from time to time during the term of the Credit Agreement the Borrower may be free from any Borrower Obligations.
v. (e) No payment made by the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person or received or collected by the Purchaser Administrative Agent or any Lender from the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Borrower Obligations or any payment received or collected from the such Guarantor in respect of the Borrower Obligations), remain liable for the Borrower Obligations up to the maximum liability of the such Guarantor hereunder until the Borrower Obligations are paid in full, no Letter of Credit shall be outstanding and the Commitments are terminated.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Sources: Master Guarantee and Collateral Agreement (Ero Marketing Inc), Guarantee and Collateral Agreement (Fah Co Inc)
Guarantee. i. The Guarantor hereby (a) Subject to the provisions of Section 3, each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably irrevocably, guarantees to Administrative Agent, for the Purchaser benefit of Creditors and its their respective successors, indorseesendorsees, transferees and assigns, the prompt and complete payment and performance by the Company Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations.
ii. Anything herein (b) Each Guarantor further agrees to pay or in reimburse Administrative Agent and each of the Creditors for all their respective reasonable costs and expenses (including, without limitation, the fees and disbursements of any counsel to Administrative Agent and any of the other Agreements to the contrary notwithstandingCreditors) which may be paid or incurred by any of such Persons in enforcing or preserving any rights under this Guaranty Agreement, the maximum liability including, without limitation, any rights with respect to, or collecting, any or all of the Guarantor hereunder and under the other Agreements shall in no event exceed the amount which can be guaranteed by the Obligations and/or enforcing any rights with respect to, or collecting against, such Guarantor under applicable federal this Guaranty Agreement. With respect to each Guarantor, this Guaranty Agreement shall remain in full force and state lawseffect until the earlier to occur of (i) the Release Date, including laws relating and (ii) the release of this Guaranty Agreement as to such Guarantor in accordance with Section 2(f) (the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally“Guaranty Termination Date”).
iii. The (c) Each Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 Guaranty Agreement or affecting the rights and remedies of the Purchaser Administrative Agent or any Creditor hereunder.
iv. The guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations and the obligations of the Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full.
v. (d) No payment or payments made by the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person or received or collected by the Purchaser Administrative Agent or any Creditor from the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (or payments, other than any payment payments made by the such Guarantor in respect of the Obligations or any payment payments received or collected from the such Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder outstanding until the Obligations are paid in fullGuaranty Termination Date, subject to Section 3 below.
vi(e) Each Guarantor agrees that all payments under this Guaranty Agreement shall be made to Administrative Agent for the benefit of Creditors. Notwithstanding anything to the contrary in this Agreementpreceding sentence if, with respect at any time any Guarantor shall make any payment to any defaulted non-monetary Obligations the Creditor on account of its liability hereunder, it will notify Administrative Agent in writing that such payment is made under this Guaranty Agreement for such purpose and promptly forward such payment, together with any necessary endorsement, to Administrative Agent.
(f) The Guaranty Agreement shall be released as to a specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreementsterms of Section 9.10(b) of the Credit Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Penson Worldwide Inc), Guaranty Agreement (Penson Worldwide Inc)
Guarantee. i. The In order to induce the Administrative Agent and the Lenders to execute and deliver this Agreement and to make or maintain the Loans, and in consideration thereof, each Guarantor hereby unconditionally and irrevocably guarantees guarantees, as primary obligor and not merely as surety, to the Purchaser and its successorsAdministrative Agent, indorsees, transferees and assignsfor the ratable benefit of the Lenders, the prompt and complete payment and performance by the Company Borrower and/or each Designated Borrower, as applicable, when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations.
ii. Anything herein , and such Guarantor further agrees to pay any and all reasonable expenses (including, without limitation, all reasonable fees, charges and disbursements of counsel) which may be paid or incurred by the Administrative Agent or by the Lenders in enforcing, or obtaining advice of counsel in respect of, any of the other Agreements to the contrary notwithstanding, the maximum liability of the Guarantor hereunder and their rights under the other Agreements shall in no event exceed the amount which can be guaranteed by the Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii. The Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of the Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser hereunder.
iv. Article X. The guarantee contained in this Article X, subject to Section 2 10.05, shall remain in full force and effect until all the Obligations are paid in full and the obligations Commitments are terminated, notwithstanding that from time to time prior thereto the Borrower and/or such Designated Borrower may be free from any Obligations. For the avoidance of doubt and without any implication to the contrary, the guarantee by the Borrower and all waivers, acknowledgements and agreement by the Borrower contained in this Article X shall be limited solely to the Obligations of the Designated Borrowers. Each Guarantor agrees that whenever, at any time, or from time to time, it shall make any payment to the Administrative Agent or any Lender on account of its liability under this Article X, it will notify the Administrative Agent and such Lender in writing that such payment is made under the guarantee contained in this Section 2 shall have been satisfied by payment in full.
v. Article X for such purpose. No payment or payments made by the CompanyBorrower, the Guarantor any Designated Borrower or any other Person or received or collected by the Purchaser Administrative Agent or any Lender from the CompanyBorrower, the Guarantor any Designated Borrower or any other Person by virtue of any action or proceeding or any set-off setoff or appropriation or application application, at any time or from time to time time, in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the such Guarantor hereunder which shallunder this Article X which, notwithstanding any such payment (other than any payment made by the Guarantor in respect of the Obligations or any payment received or collected from the Guarantor in respect of the Obligations)payments, shall remain liable for the unpaid and outstanding Obligations up until, subject to the maximum liability of the Guarantor hereunder until Section 10.05, the Obligations are paid in fullfull and the Commitments are terminated.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Sources: 364 Day Credit and Guarantee Agreement (PayPal Holdings, Inc.), 364 Day Credit and Guarantee Agreement (PayPal Holdings, Inc.)
Guarantee. i. (i) The Guarantor hereby Guarantors hereby, jointly and severally, absolutely, unconditionally and irrevocably guarantees irrevocably, guarantee to the Purchaser Purchasers and its their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations. The Guarantors’ liability under this Guarantee shall be unlimited, open and continuous for so long as this Guarantee remains in force.
(ii. ) Anything herein or in any of the other Agreements Transaction Document to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder and under the other Agreements Transaction Documents shall in no event exceed the amount which can be guaranteed by the such Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generallygenerally (after giving effect to the right of contribution set forth in Section 2(b)).
(iii. The ) Each Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser Purchasers hereunder.
(iv. ) The guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations and the obligations of the each Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full.
v. (v) No payment made by the Company, any of the Guarantor Guarantors, any other guarantor or any other Person or received or collected by the Purchaser Purchasers from the Company, any of the Guarantor Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Obligations or any payment received or collected from the such Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the such Guarantor hereunder until the Obligations are paid in full.
(vi. ) Notwithstanding anything to the contrary in this AgreementGuarantee, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor Guarantors is not reasonably possible (e.g. the issuance of the Company’s 's Common Stock), the Guarantor Guarantors shall only be liable for making the Purchaser Purchasers whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the AgreementsTransaction Documents.
Appears in 2 contracts
Sources: Subsidiary Guarantee (AtheroNova Inc.), Subsidiary Guarantee (AtheroNova Inc.)
Guarantee. i. The 10.1 In consideration of the Vendors agreeing to sell the Shares to the Purchaser on the terms set out in this Agreement, the Guarantor hereby unconditionally and irrevocably guarantees to the Purchaser Vendors the due and its successors, indorsees, transferees punctual performance and assigns, the prompt and complete payment and performance observance by the Company when due (whether at the stated maturity, by acceleration or otherwise) Purchaser of the Purchaser’s obligations, commitments and undertakings under or pursuant to this Agreement and each other Transaction Document (the “Guaranteed Obligations.
ii. Anything herein or in ”), and agrees to indemnify the Vendors on an after-Tax basis for any failure by the Purchaser to perform any of the other Agreements to the contrary notwithstanding, the maximum Guaranteed Obligations. The liability of the Guarantor hereunder and under the other Agreements shall in no event exceed the amount which can be guaranteed by the Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii. The Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of the Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser hereunder.
iv. The guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations and the obligations of the Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full.
v. No payment made by the Company, the Guarantor or any other Person or received or collected by the Purchaser from the Company, the Guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the Guarantor in respect of the Guaranteed Obligations shall not be released or diminished by any variation of the terms of this Agreement or any payment received other Transaction Document (whether or collected from not agreed by the Guarantor Guarantor), any forbearance, neglect or delay in respect seeking performance of the Obligations), remain liable obligations hereby imposed or any granting of time for the Obligations up to the maximum liability of the Guarantor hereunder until the Obligations are paid in fullsuch performance.
vi. Notwithstanding anything to 10.2 If and whenever the contrary Purchaser defaults for any reason whatsoever in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock)any Guaranteed Obligation, the Guarantor shall only forthwith upon demand unconditionally perform (or procure performance of) and satisfy (or procure satisfaction of) the Guaranteed Obligation to which such default relates in the manner prescribed by this Agreement or the relevant Transaction Document and so that the same (but no greater) benefits shall be liable for making conferred on the Vendors as would have been received if such Guaranteed Obligation had been duly performed and satisfied by the Purchaser.
10.3 This guarantee is to be a continuing guarantee and, accordingly, is to remain in force until all of the Guaranteed Obligations shall have been performed or satisfied by the Purchaser whole on a monetary basis or the Guarantor, regardless of the legality, validity or enforceability of any provisions of this Agreement and notwithstanding the winding-up, liquidation, dissolution or other incapacity of the Purchaser or any change in the status, control or ownership of the Purchaser. This guarantee is in addition to, without limiting and not in substitution for, any rights or security which the Vendors may now or after the date of this Agreement have or hold for the Company’s failure to perform such performance and observance of the Guaranteed Obligations.
10.4 As a separate and independent stipulation, the Guarantor agrees that any of the Guaranteed Obligations which may not be enforceable against or recoverable from the Purchaser by reason of any legal limitation, disability or incapacity on or of the Purchaser or any fact or circumstance (other than any limitation imposed by this Agreement) shall nevertheless be enforceable against and recoverable from the Guarantor as though the same had been incurred by the Guarantor and the Guarantor were the sole or principal obligor in accordance with respect thereof and shall be performed or paid by the AgreementsGuarantor on demand.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Actavis PLC)
Guarantee. i. (a) The Guarantor hereby hereby, unconditionally and irrevocably irrevocably, guarantees to the Purchaser Agent, for the ratable benefit of the Agent and its successors, indorsees, transferees and assignsthe Lenders, the prompt and complete payment and performance by the Company when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations.
ii. Anything (b) Notwithstanding anything herein or in any of the other Agreements Loan Document to the contrary notwithstandingcontrary, the maximum liability of the Guarantor hereunder and under the other Agreements Loan Documents shall in no event exceed the amount which can be guaranteed by the Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii. (c) The Guarantor further agrees to pay any and all reasonable expenses (including all reasonable fees and disbursements of counsel) which may be paid or incurred by the Agent, on behalf of the Lenders, in enforcing any rights with respect to, or collecting, any or all of the Obligations and/or enforcing any rights with respect to, or collecting against, the Guarantor under this Article 13.
(d) The Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of the Guarantor hereunder under this Article 13 without impairing the guarantee contained in this Section 2 Article 13 or affecting the rights and remedies of the Purchaser hereunderAgent, on behalf of the Lenders, pursuant to this Article 13.
iv. The guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations and the obligations of the Guarantor under the guarantee contained in this Section 2 shall have been satisfied (e) Except as required by applicable law, no payment in full.
v. No payment or payments made by the CompanyBorrower, the Guarantor Guarantor, any other guarantor or any other Person or received or collected by the Purchaser Agent or any Lender from the CompanyBorrower, the Guarantor Guarantor, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor hereunder under this Article 13 which shall, notwithstanding any such payment (or payments other than any payment payments made by the Guarantor in respect of the Obligations or any payment payments received or collected from the Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder under this Article 13 until the Obligations (excluding from such Obligations and the obligations of the Guarantor under this Article 13 any contingent indemnity or similar obligations that expressly survive repayment or termination of the Loan Documents) are paid in fullfull and the Commitments are terminated.
vi. Notwithstanding anything (f) The Guarantor agrees that whenever, at any time, or from time to time, it shall make any payment to the contrary Agent on account of its liability under this Article 13, it will notify the Agent in writing that such payment is made under this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable Article 13 for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreementspurpose.
Appears in 2 contracts
Sources: Credit Agreement (Ovintiv Inc.), Credit Agreement (Ovintiv Inc.)
Guarantee. i. (a) The Guarantor hereby unconditionally and irrevocably guarantees to Guarantor, in consideration of the Purchaser and its successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company when due (whether Supplier having entered into this Agreement at the stated maturityGuarantor’s request:
(i) guarantees that the Customer will perform all its obligations under this Agreement;
(ii) guarantee that the Customer will comply with all relevant laws and regulations when fabricating stones;
(iii) must pay on demand any amount which the Supplier is entitled to recover from the Customer; and
(iv) indemnifies the Supplier against all losses, by acceleration costs, damages and legal expenses (on a full indemnity basis) (“Loss”) resulting from the Supplier having entered into this Agreement whether from the Customer’s failure to perform its obligations under this Agreement or otherwise) of being or becoming unenforceable against the ObligationsCustomer.
ii. Anything herein or in any of the other Agreements to the contrary notwithstanding, the maximum (b) The liability of the Guarantor hereunder will not be affected by:
(i) the Supplier granting to the Customer or a Guarantor time or any other indulgence, or agreeing not to sue the Customer or another Guarantor;
(ii) failure by any Guarantor to sign this Agreement;
(iii) assignment or variation of this Agreement.
(c) The Guarantor agrees that:
(i) the Supplier may retain all money received including dividends from the Customer’s bankrupt estate, and need allow the Guarantor a reduction in its liability under this guarantee only to the other Agreements shall in no event exceed extent of the amount which can be guaranteed by received;
(ii) the Guarantor under applicable federal and state laws, including laws relating must not seek to recover money from the Customer to reimburse the Guarantor for payments made to the insolvency Supplier until the Supplier has been paid in full;
(iii) the Guarantor must not prove in the bankruptcy or winding up of debtors, fraudulent conveyance the Customer for any amount which the Supplier has demanded from the Guarantor; and
(iv) the Guarantor must pay the Supplier all money which the Supplier refunds to the Customer’s liquidator or transfer or laws affecting trustee in bankruptcy as preferential payments received from the rights of creditors generallyCustomer.
iii(d) If any of the Customer’s obligations are unenforceable against the Customer, then this clause is to operate as a separate indemnity and the Guarantor indemnifies the Supplier against all Loss resulting from the Supplier’s inability to enforce performance of those obligations. The Guarantor agrees that must pay the Obligations may at any time and from time to time exceed Supplier upon demand the amount of the liability of Loss resulting from the Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser hereunderunenforceability.
iv. The (e) If there is more than one (1) Guarantor, this guarantee contained binds them separately, together and in this Section 2 shall remain in full force and effect until all the Obligations and the obligations of the Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in fullany combination.
v. No payment made by the Company, the Guarantor or any other Person or received or collected by the Purchaser from the Company, the Guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the Guarantor in respect of the Obligations or any payment received or collected from the Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder until the Obligations are paid in full.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Sources: General Agreement, Supply Agreement
Guarantee. i. 1. The Guarantor unconditionally guarantees and covenants with the Trustee that the Company (hereinafter the Company is sometimes referred to as the "Debtor") will duly and punctually pay or cause to be paid to the Bondholders the principal amount of the Bonds, interest thereon and all other amounts owing thereunder, as may become payable in accordance with the provisions of the Trust Deed at the dates, in the currencies and in the manner mentioned in the Trust Deed and in such Bonds and will pay all other moneys from time to time owing under the Trust Deed in accordance with the terms thereof and will perform and carry out all other obligations of the Debtor therein contained. The Guarantor and the Trustee acknowledge and agree that the obligations of the Guarantor under this Guarantee are in addition to the obligations the Guarantor has assumed directly under the Trust Deed including, without limitation, with respect to the payment of the Bonds.
2. The obligations of the Guarantor hereunder are and shall be absolute and unconditional and any moneys or amounts expressed to be owing or payable by the Guarantor hereunder which may not be recoverable from the Guarantor on the basis of a guarantee shall be recoverable from the Guarantor as a primary obligor and principal debtor in respect thereof.
3. The Guarantor hereby unconditionally and irrevocably guarantees acknowledges that it is a party to the Purchaser Trust Deed, it has received communication of the terms of the Trust Deed and its successorsof all the provisions therein contained and consents and approves of the same and this Guarantee and the agreements of the Guarantor herein contained and provided for shall take effect and shall be and are hereby declared to be binding upon the Guarantor notwithstanding any defect in or omission from the Trust Deed or any instrument comprising the same or any non-registration or non-filing or defect of registration or filing or by reason of any defect in the issuance of any Bond or by reason of the failure of the security for the Bonds intended to be created by the Trust Deed or pursuant thereto.
4. It is hereby agreed and declared that the obligation of the Guarantor hereunder shall extend (without any further act or formality) to all Bonds which may from time to time be issued and outstanding under the Trust Deed, indorsees, transferees whether heretofore or hereafter issued.
5. The obligation of the Guarantor thereunder shall be a continuing obligation and assignsa fresh cause of action hereunder shall be deemed to arise in respect of each default by the Debtor. In the event of such a default, the prompt Trustee or any Bondholder as permitted hereunder, as the case may be, shall have the right to proceed first and complete payment directly against the Guarantor without proceeding against the Debtor or either of them, as the case may be, or any other Person or entity or exhausting any other remedies which it or they may have, and performance without resorting to any security held by it or them. The Guarantor agrees with the Company when due (whether at Trustee that it will from time to time deliver to the stated maturityTrustee suitable acknowledgements of its continued liability hereunder and under the Guarantee Security to which it is a party and any other instrument or instruments in such form as Counsel may advise and as will prevent any action brought against it in respect of any default hereunder or under such Guarantee Security or the covenants therein contained being barred by an statute of limitations now or hereafter in force in the Province of Ontario or elsewhere, by acceleration or otherwise) and in the event of the Obligations.
ii. Anything herein or in any failure of the Guarantor so to do, it hereby irrevocably appoints the Trustee the attorney and agent of the Guarantor to make, execute and deliver such written acknowledgement or acknowledgements or other Agreements instruments as may from time to time become necessary or advisable, in the contrary notwithstandingjudgment of the Trustee on the advice of Counsel, to fully maintain and keep in force the maximum liability of the Guarantor hereunder and under the other Agreements shall in no event exceed the amount which can be guaranteed by the Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generallysuch Guarantee Security.
iii6. The Guarantor agrees that the Obligations may if at any time and from time any part of any payment guaranteed hereunder received by the Trustee or the Bondholders is or must be rescinded or returned to time exceed the amount Debtor, for any reason whatsoever (including without limitation, the insolvency, bankruptcy or reorganization of the liability of the Guarantor hereunder without impairing Debtor), the guarantee contained in constituted by this Section 2 or affecting the rights and remedies of the Purchaser hereunder.
iv. The guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations and the obligations of the Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full.
v. No payment made by the Company, the Guarantor or any other Person or received or collected by the Purchaser from the Company, the Guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations agreement shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the Guarantor in respect of the Obligations or any payment received or collected from the Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder until the Obligations are paid in full.
vi. Notwithstanding anything to the contrary in this Agreement, reinstated with respect to any defaulted non-monetary Obligations the specific performance of which such payment so rescinded or returned as though such payment had never been received by the Guarantor is not reasonably possible (e.g. Trustee or the issuance Bondholders. If demand for, or acceleration of the Company’s Common Stock)time for, payment by the Debtor of any obligation guaranteed hereunder is stayed upon the insolvency, bankruptcy or reorganization of the Debtor all such indebtedness otherwise subject to demand for payment or acceleration shall nonetheless by payable be the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreementsas provided herein.
Appears in 2 contracts
Sources: Guarantee Agreement (Rogers Cable Inc), Guarantee Agreement (Rogers Cable Inc)
Guarantee. i. The 27.1 In consideration of the Sellers entering into this Agreement, the Guarantor hereby unconditionally and irrevocably guarantees to the Purchaser Sellers, as a continuing independent and primary obligation and as principal debtor obligation, that the Buyer will comply, in a timely manner, with its successorsobligations, indorseescommitments, transferees undertakings and assigns, warranties under or pursuant to this Agreement and all other Transaction Documents (to which the prompt and complete payment and performance by the Company when due (whether at the stated maturity, by acceleration or otherwise) of the ObligationsBuyer is a party).
ii. Anything herein 27.2 The Guarantor’s liability under this Clause 27 shall not be discharged, affected, reduced, released or in impaired by:
27.2.1 any amendment, variation or assignment of this Agreement or any other Transaction Document (to which the Buyer is a party) or any waiver of any of the terms of this Agreement or any other Agreements Transaction Document (to which the contrary notwithstandingBuyer is a party);
27.2.2 any forbearance, the maximum liability neglect or delay in seeking performance of the Guarantor hereunder and under the other Agreements shall in no event exceed the amount which can be guaranteed by the Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii. The Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of the Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser hereunder.
iv. The guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations and the obligations of the Guarantor Buyer under the guarantee contained in or pursuant to this Section 2 shall have been satisfied by payment in full.Agreement and any other Transaction Document;
v. No payment made by the Company27.2.3 any release of, or granting of time or other indulgence to, the Guarantor Buyer or any third party;
27.2.4 the illegality, invalidity or unenforceability of, or any defect in, any provision of this Agreement or any other Person Transaction Document or received the obligations of the Buyer under any of them;
27.2.5 any winding-up, dissolution, reconstruction, legal limitation, incapacity or collected by lack of corporate authority of the Purchaser from the Company, the Guarantor or Buyer; and
27.2.6 any other Person by virtue of any action fact or proceeding event which would or any set-off or appropriation or application at any time or from time may operate to time in reduction of or in payment of the Obligations shall be deemed to modifyimpair, affect, reduce, release or otherwise affect discharge the liability Guarantor’s liability.
27.3 If and whenever the Buyer defaults for any reason whatsoever in the performance of the Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the Guarantor in respect of the Obligations its obligations under this Agreement or any payment received or collected from the Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder until the Obligations are paid in full.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock)other Transaction Document, the Guarantor shall only forthwith upon demand unconditionally perform (or procure the performance of) and satisfy (or procure the satisfaction of) the obligations of the Buyer in regard to which such default has been made in the manner prescribed by this Agreement or any other Transaction Document, and so that the same benefits shall be liable conferred on the Sellers as they would have received if the obligations of the Buyer had been duly performed and satisfied by the Buyer.
27.4 This guarantee is to be a continuing guarantee and, accordingly, is to remain in force until the obligations of the Buyer under this Agreement or any other Transaction Document (to which the Buyer is a party) shall have been performed or satisfied. This guarantee is in addition to and without prejudice to and not in substitution for making any rights or security which the Purchaser whole on a monetary basis Sellers may now or hereafter have or hold for the Company’s failure to perform such Obligations in accordance with performance and observance of the Agreementsobligations of the Buyer under this Agreement or any other Transaction Document.
Appears in 2 contracts
Sources: Sale and Purchase Agreement (Zogenix, Inc.), Sale and Purchase Agreement (Zogenix, Inc.)
Guarantee. i. The Guarantor hereby (a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably irrevocably, guarantees to the Purchaser Administrative Agent, for the ratable benefit of the Lenders and its their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Borrower Obligations.
ii. (b) Anything herein or in any of the other Agreements Loan Document to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder and under the other Agreements Loan Documents shall in no event exceed the amount which can be guaranteed by the such Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting debtors (after giving effect to the rights right of creditors generallycontribution established in Section 2.2).
iii. The (c) Each Guarantor agrees that the Borrower Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser Administrative Agent or any Lender hereunder.
iv. (d) The guarantee contained in this Section 2 shall remain in full force and effect until all the Borrower Obligations (other than contingent indemnity obligations not due and payable) and the obligations of the each Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full, no Letter of Credit shall be outstanding and the Commitments shall be terminated, notwithstanding that from time to time during the term of the Credit Agreement the Borrower may be free from any Borrower Obligations.
v. (e) No payment made by the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person or received or collected by the Purchaser Administrative Agent or any Lender from the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Borrower Obligations or any payment received or collected from the such Guarantor in respect of the Borrower Obligations), remain liable for the Borrower Obligations up to the maximum liability of the such Guarantor hereunder until the Borrower Obligations are paid in fullfull (other than contingent indemnity obligations not due and payable), no Letter of Credit shall be outstanding and the Commitments are terminated.
vi. Notwithstanding anything (f) The Borrower hereby unconditionally guarantees to the contrary in this AgreementAdministrative Agent, with respect to any defaulted non-monetary Obligations for the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance ratable benefit of the Company’s Common Stock)Lenders (and their Affiliates) and their respective successors, indorsees, transferees and assigns, the Guarantor shall only be liable for making prompt and complete payment and performance by its Subsidiaries of their Cash Management Obligations and their obligations and liabilities under the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Lender Hedge Agreements.
Appears in 2 contracts
Sources: Credit Agreement (Tenneco Inc), Guarantee and Collateral Agreement (Tenneco Inc)
Guarantee. i. The Guarantor hereby (a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably irrevocably, guarantees to the Purchaser Administrative Agent, for the ratable benefit of the Lenders, the Issuing Lenders, the Administrative Agent and its the other Indemnitees under the Credit Agreement and their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company Borrowers when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations.
ii. (b) Anything herein or in any of the other Agreements Loan Document to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder and under the other Agreements Loan Documents shall in no event exceed the amount which can be guaranteed by the such Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting debtors (after giving effect to the rights right of creditors generallycontribution established in Section 3) without rendering such Guarantor insolvent under such laws.
iii. The (c) Each Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 Guarantee or affecting the rights and remedies of the Purchaser Administrative Agent hereunder.
iv. The guarantee contained in this Section 2 (d) This Guarantee shall remain in full force and effect until all the Obligations and the obligations of the each Guarantor under the guarantee contained in this Section 2 Guarantee shall have been satisfied by payment in full, no Letter of Credit shall be outstanding and the Commitments shall be terminated, notwithstanding that from time to time during the term of the Credit Agreement the Borrowers may be free from any Obligations.
v. (e) No payment made by the Company, any other Borrower, any of the Guarantor Guarantors, any other guarantor or any other Person or received or collected by the Purchaser Administrative Agent from the Company, any other Borrower, any of the Guarantor Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Obligations or any payment received or collected from the such Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the such Guarantor hereunder until the Obligations are paid in full, no Letter of Credit shall be outstanding and the Commitments are terminated.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (Kennametal Inc)
Guarantee. i. 9.1.1 The Guarantor Borrower and each of the Guarantors hereby unconditionally and irrevocably guarantees to the Purchaser Administrative Agent, for the ratable benefit of the Administrative Agent and its the Lenders and each of their respective permitted successors, indorseesendorsees, transferees and assigns, the prompt and complete payment and performance by the Company Borrower and the Guarantors when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations.
ii. Anything herein or in any , provided, however, that each of the other Agreements to the contrary notwithstanding, Guarantors shall be jointly and severally liable under this Article for the maximum amount of such liability of the Guarantor hereunder and under the other Agreements shall in no event exceed the amount which that can be guaranteed by the Guarantor hereby incurred without rendering this Guarantee, as it relates to such Guarantor, voidable under applicable federal and state laws, including laws law relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights fraudulent transfer, and not for any greater amount. This is a guarantee of creditors generally.
iii. The Guarantor agrees that the Obligations may at any time payment and from time to time exceed the amount of not collection and the liability of the Borrower and each Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights is primary and remedies of the Purchaser hereundernot secondary.
iv. 9.1.2 The guarantee contained in this Section 2 Article shall remain in full force and effect until at all the Obligations and the obligations of the Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in fulltimes when Loans are outstanding.
v. 9.1.3 No payment made by the CompanyBorrower, the any Guarantor or any other Person Person, or received or collected by the Purchaser any Agent or any Lender from the CompanyBorrower, the any Guarantor or any other Person Person, by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall shall, except to the extent of such payment, be deemed to modify, reduce, release or otherwise affect the liability of the Borrower or such Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the Borrower or such Guarantor in respect of the Obligations or any payment received or collected from the Borrower or such Guarantor in respect of the Obligations), remain liable for the Obligations up (except to the extent of such payment).
9.1.4 The Borrower and each Guarantor hereby unconditionally and irrevocably agree that in the event any payment shall be required to be made to any Agent or any Lender hereunder or under any other guaranty, the Borrower or such Guarantor will contribute, to the maximum liability extent permitted by law, such amounts to each other Guarantor or Borrower so as to maximize the aggregate amount paid to such Agent or Lender under or in respect of the Guarantor hereunder until the Obligations are paid in fullLoan Documents.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Sources: Credit Agreement (Saratoga Resources Inc /Tx), Credit Agreement (Saratoga Resources Inc /Tx)
Guarantee. i. The Guarantor hereby (a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably irrevocably, guarantees to the Purchaser Collateral Agent, for the ratable benefit of the Secured Parties and its their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Borrower Obligations.
ii. (b) Anything herein or in any of the other Agreements Loan Document to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder and under the other Agreements Loan Documents shall in no event exceed the amount which can be guaranteed by the such Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting debtors (after giving effect to the rights right of creditors generallycontribution established in Section 2.2).
iii. The (c) Each Guarantor agrees that the Borrower Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser Collateral Agent or any Secured Party hereunder.
iv. (d) The guarantee contained in this Section 2 shall remain in full force and effect until all the Borrower Obligations and the obligations of the each Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full, either no Letter of Credit shall be outstanding or each outstanding Letter of Credit has been Cash Collateralized and the Commitments shall be terminated, notwithstanding that from time to time during the term of the Credit Agreement the Borrower may be free from any Borrower Obligations.
v. (e) No payment made by the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person or received or collected by the Purchaser Collateral Agent or any Secured Party from the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Borrower Obligations or any payment received or collected from the such Guarantor in respect of the Borrower Obligations), remain liable for the Borrower Obligations up to the maximum liability of the such Guarantor hereunder until the Borrower Obligations are paid in full, either no Letter of Credit shall be outstanding or each outstanding Letter of Credit has been Cash Collateralized and the Commitments are terminated.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Sources: Credit Agreement (Calpine Corp), Credit Agreement (Calpine Corp)
Guarantee. i. 7.1 The Original Guarantor hereby irrevocably and unconditionally and irrevocably guarantees on a joint and several basis with each company which becomes an Additional Guarantor from time to time, and notwithstanding the release of any other Guarantor or any other person under the terms of any composition or arrangement with any creditors of the Issuer or any other Guarantor or any Subsidiary of the Issuer or any Guarantor, guarantee to the Purchaser Trustee:
(a) the due and its successorspunctual payment in accordance with the provisions of these presents of the principal of and interest on all Notes and of any other amounts payable by the Issuer under these presents; and
(b) the due and punctual performance and observance by the Issuer of each of the other provisions of these presents on the Issuer's part to be performed or observed.
7.2 If the Issuer fails for any reason whatsoever punctually to pay any such principal, indorsees, transferees and assignsinterest or other amount, the prompt Original Guarantor shall on a joint and complete several basis with each other company which becomes an Additional Guarantor from time to time cause each and every such payment to be made as if the Original Guarantor instead of the Issuer were expressed to be the primary obligor under these presents and performance not merely as surety (but without affecting the nature of the Issuer's obligations) to the intent that the holder of the relevant Note or Coupon or the Trustee (as the case may be) shall receive the same amounts in respect of principal, interest or such other amount as would have been receivable had such payments been made by the Company when due Issuer.
7.3 If any payment received by the Trustee or any Noteholder or Couponholder under the provisions of these presents shall (whether at on the stated maturitysubsequent bankruptcy, by acceleration insolvency or otherwise) corporate reorganisation of the ObligationsIssuer or, without limitation, on any other event) be avoided or set aside for any reason, such payment shall not be considered as discharging or diminishing the liability of the Original Guarantor and this guarantee shall continue to apply as if such payment had at all times remained owing by the Issuer and the Original Guarantor shall indemnify the Trustee and the Noteholders and/or and/or Couponholders (as the case may be) in respect thereof PROVIDED THAT the obligations of the Issuer and/or the Original Guarantor under this subclause shall, as regards each payment made to the Trustee or any Noteholder or Couponholder which is avoided or set aside, be contingent upon such payment being reimbursed to the Issuer or other persons entitled through the Issuer.
ii. Anything herein 7.4 The Original Guarantor hereby agrees that its obligations under this clause shall be unconditional and that the Original Guarantor shall be fully liable irrespective of the validity, regularity, legality or enforceability against the Issuer of, or of any defence or counter-claim whatsoever available to the Issuer in relation to, its obligations under these presents, whether or not any action has been taken to enforce the same or any judgment obtained against the Issuer, whether or not any of the other Agreements provisions of these presents have been modified, whether or not any time, indulgence, waiver, authorisation or consent has been granted to the contrary notwithstanding, the maximum liability Issuer by or on behalf of the Guarantor hereunder and under Noteholders or the other Agreements shall in no event exceed Couponholders or the amount which can be guaranteed Trustee, whether or not any determination has been made by the Guarantor Trustee pursuant to subclause 19.1, whether or not there have been any dealings or transactions between the Issuer, any of the Noteholders or Couponholders or the Trustee, whether or not the Issuer has been dissolved, liquidated, merged, consolidated, bankrupted or has changed its status, functions, control or ownership, whether or not the Issuer has been prevented from making payment by foreign exchange provisions applicable at its place of registration or incorporation and whether or not any other circumstances have occurred which might otherwise constitute a legal or equitable discharge of or defence to a Guarantor. Accordingly the validity of this guarantee shall not be affected by reason of any invalidity, irregularity, illegality or unenforceability of all or any of the obligations of the Issuer under applicable federal these presents and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii. The Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of this guarantee shall not be discharged nor shall the liability of the Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser hereunder.
iv. The guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations and the obligations of the Original Guarantor under the guarantee contained in this Section 2 shall these presents be affected by any act, thing or omission or means whatever whereby its liability would not have been satisfied by payment in fulldischarged if it had been the principal debtor.
v. No payment made by the Company, the Guarantor or any other Person or received or collected by the Purchaser from the Company, the Guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the Guarantor in respect of the Obligations or any payment received or collected from the Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder until the Obligations are paid in full.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Guarantee. i. The Guarantor hereby (a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably irrevocably, guarantees to the Purchaser Collateral Agent, for the ratable benefit of the Lenders and its their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Borrower Obligations.
ii. (b) Anything herein or in any of the other Agreements Loan Document to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder and under the other Agreements Loan Documents shall in no event exceed the amount which can be guaranteed by the such Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting debtors (after giving effect to the rights right of creditors generallycontribution established in Section 2.2).
iii. The (c) Each Guarantor agrees that the Borrower Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser any Agent or any Lender hereunder.
iv. (d) The guarantee contained in this Section 2 shall remain in full force and effect until all the Borrower Obligations and the obligations of the each Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full, no Letter of Credit shall be outstanding and the Commitments shall be terminated, notwithstanding that from time to time during the term of the Credit Agreement the Borrower may be free from any Borrower Obligations.
v. (e) No payment made by the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person or received or collected by the Purchaser any Agent or any Lender from the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Borrower Obligations or any payment received or collected from the such Guarantor in respect of the Borrower Obligations), remain liable for the Borrower Obligations up to the maximum liability of the such Guarantor hereunder until the Borrower Obligations are paid in full, no Letter of Credit shall be outstanding and the Commitments are terminated.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Imperial Holly Corp), Guarantee and Collateral Agreement (Imperial Holly Corp)
Guarantee. i. The Guarantor In order to induce the Administrative Agent, the Issuing Bank and the Lenders to execute and deliver this Agreement and to make or maintain the Loans and to issue Letters of Credit hereunder, and in consideration thereof, CCSC hereby unconditionally and irrevocably guarantees guarantees, as primary obligor and not merely as surety, to the Purchaser Agents, for the ratable benefit of the Issuing Bank and its successors, indorsees, transferees and assignsthe Lenders, the prompt and complete payment and performance by the Company each Subsidiary Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Subsidiary Borrower Obligations.
ii. Anything herein , and CCSC further agrees to pay any and all reasonable expenses (including, without limitation, all reasonable fees, charges and disbursements of counsel) which may be paid or incurred by the Agents, the Issuing Bank or any Lender in enforcing any of the other Agreements to the contrary notwithstanding, the maximum liability of the Guarantor hereunder and their rights under the other Agreements shall in no event exceed the amount which can be guaranteed by the Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii. The Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of the Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser hereunder.
ivArticle IX. The guarantee contained in this Article IX, subject to Section 2 9.04, shall remain in full force and effect until all Letters of Credit issued for the account of any Subsidiary Borrower have terminated, the Subsidiary Borrower Obligations are paid in full and the obligations Commitments are terminated, notwithstanding that from time to time prior thereto any Subsidiary Borrower may be free from any Subsidiary Borrower Obligations. CCSC agrees that whenever, at any time, or from time to time, it shall make any payment to either Agent, the Issuing Bank or any Lender on account of its liability under this Article IX, it will notify such Agent, the Guarantor Issuing Bank and such Lender in writing that such payment is made under the guarantee contained in this Section 2 shall have been satisfied by payment in full.
v. Article IX for such purpose. No payment or payments made by the Company, the Guarantor any Subsidiary Borrower or any other Person or received or collected by the Purchaser from the Companyeither Agent, the Guarantor Issuing Bank or any Lender from any Subsidiary Borrower or any other Person by virtue of any action or proceeding or any set-off setoff or appropriation or application application, at any time or from time to time time, in reduction of or in payment of the Subsidiary Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor hereunder which shallCCSC under this Article IX which, notwithstanding any such payment (other than any payment made by the Guarantor in respect of the Obligations or any payment received or collected from the Guarantor in respect of the Obligations)payments, shall remain liable for the unpaid and outstanding Subsidiary Borrower Obligations up until, subject to Section 9.04, the maximum liability of the Guarantor hereunder until the Subsidiary Borrower Obligations are paid in fullfull and the Commitments are terminated.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Sources: Credit Agreement (Crown Cork & Seal Co Inc), Credit Agreement (Crown Cork & Seal Co Inc)
Guarantee. i. The Guarantor hereby (a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably irrevocably, guarantees to the Purchaser Administrative Agent, for the ratable benefit of the Lenders and its their respective successors, indorsees, transferees and assignsassigns permitted hereunder, the prompt and complete payment and performance by the Company Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations.;
ii. (b) Anything herein or in any of the other Agreements Loan Document to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder under this subsection 11.1 and under the other Agreements Loan Documents shall in no event exceed the amount which can be guaranteed by the Guarantor is permitted under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii. The (c) Each Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 11 or affecting the rights and remedies of the Purchaser Administrative Agent or any Lender hereunder.
iv. (d) The guarantee contained in this Section 2 11 shall remain in full force and effect until all the Obligations and the obligations of the each Guarantor under the guarantee contained in this Section 2 11 shall have been satisfied by payment in full, no Letter of Credit shall be outstanding and the Commitments shall be terminated, notwithstanding that from time to time during the term of this Agreement the Borrower may be free from any Obligations.
v. (e) No payment made by the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person or received or collected by the Purchaser Administrative Agent or any Lender from the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Obligations or any payment received or collected from the such Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the such Guarantor hereunder until the Obligations are paid in full, no Letter of Credit shall be outstanding and the Commitments are terminated.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Sources: Credit and Guarantee Agreement, Credit and Guarantee Agreement (Sirva Inc)
Guarantee. i. The Guarantor hereby (a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably irrevocably, guarantees to the Purchaser Administrative Agent, for the ratable benefit of the Lenders and its their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company when due (whether at the stated maturity, by acceleration or otherwise) of the Company Obligations.
ii. (b) Anything herein or in any of the other Agreements Credit Document to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder and under the other Agreements Credit Documents shall in no event exceed the amount which can be guaranteed by the such Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting debtors (after giving effect to the rights right of creditors generallycontribution established in Section 2.2).
iii. The (c) Each Guarantor agrees that the Company Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser Administrative Agent or any Lender hereunder.
iv. (d) The guarantee contained in this Section 2 shall remain in full force and effect until all the Company Obligations and the obligations of the each Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full, either no Letter of Credit shall be outstanding or each outstanding Letter of Credit has been cash collateralized so that it is fully secured to the satisfaction of the Administrative Agent and the Commitments shall be terminated, notwithstanding that from time to time during the term of the Credit Agreement the Company may be free from any Company Obligations.
v. (e) No payment made by the Company, any of the Guarantor Guarantors, any other guarantor or any other Person or received or collected by the Purchaser Administrative Agent or any Lender from the Company, any of the Guarantor Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Company Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Company Obligations or any payment received or collected from the such Guarantor in respect of the Company Obligations), remain liable for the Company Obligations up to the maximum liability of the such Guarantor hereunder until the Company Obligations are paid in full.
vi. Notwithstanding anything , either no Letter of Credit shall be outstanding or each outstanding Letter of Credit has been cash collateralized so that it is fully secured to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance satisfaction of the Company’s Common Stock), Administrative Agent and the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.Commitments are terminated
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (CSK Auto Corp), Guarantee and Collateral Agreement (CSK Auto Corp)
Guarantee. i. 10.1 The Guarantor hereby unconditionally and irrevocably guarantees to LUL that the Purchaser Licensee shall observe and its successors, indorsees, transferees perform the Licensee’s obligations in this Licence and assignsif the Licensor fails to observe and perform any of those obligations, the prompt Guarantor will observe and complete payment perform them.
10.2 The Guarantor covenants with LUL as a separate and performance independent primary obligation to pay all costs, losses and expenses suffered by LUL arising out of or in relation to any failure by the Company when due (whether at the stated maturity, by acceleration Licensee to observe or otherwise) of the Obligations.
ii. Anything herein or in perform any of the other Agreements Licensee’s obligations in this Licence and shall indemnify LUL against any failure of the Guarantor to observe or perform the contrary notwithstanding, the maximum Guarantor's obligations under this clause 10;
10.3 The liability of the Guarantor hereunder under clauses 10.1 and under 10.2 of this Licence shall continue until the other Agreements shall in no event exceed earlier of (a) the amount which can be guaranteed by expiry of a period of six years from the Guarantor under applicable federal earlier of (1) the date of expiry of the period of this Licence or (2) the date of determination of this Licence, and state laws, including laws relating (b) the date of novation of this Licence to the insolvency JV Entity pursuant to clause 12 of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generallythis Licence.
iii. 10.4 The Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of the Guarantor hereunder without impairing shall not be affected by:
10.4.1 any time or indulgence granted by LUL to the guarantee contained Licensee;
10.4.2 any delay or forbearance by LUL in enforcing the observance or performance of any of the Licensee’s obligations in this Section 2 Licence;
10.4.3 LUL exercising any right or affecting remedy against the rights and remedies Licensee for any failure to observe or perform the Licensee’s obligations in this Licence;
10.4.4 any legal limitation or disability on the Licensee or any invalidity or irregularity of any of the Purchaser hereunderLicensee’s obligations in this Licence or any unenforceability of any of them against the Licensee;
10.4.5 the Licensee being dissolved, or being struck off the register of companies or otherwise ceasing to exist; or
10.4.6 by any other act or omission except an express written release of the Guarantor by LUL.
iv. 10.5 The guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations and the obligations liability of the Guarantor under this Deed shall not in any circumstances be greater than the guarantee contained liability which the Guarantor would have had if it had been the licensee under the Licence in this Section 2 shall have been satisfied by payment in fullplace of Licensee.
v. No 10.6 Any payment made by or dividend that LUL receives from the Company, the Guarantor Licensee (or its estate) or any other Person person in connection with any insolvency proceedings or received or collected by arrangement involving the Purchaser Licensee shall be taken and applied as a payment in gross and shall not prejudice the right of LUL to recover from the Company, Guarantor to the full extent of the obligations that are the subject of this guarantee.
10.7 The following provisions shall apply if the Guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or requires to be released from time to time in reduction its obligations under clause 10 of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the Guarantor in respect of the Obligations or any payment received or collected from the Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder until the Obligations are paid in full.this Licence:
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), 10.7.1 the Guarantor shall only be liable propose in writing a substitute guarantor (Substitute Guarantor) for making approval by LUL; and
10.7.2 the Purchaser whole on Substitute Guarantor shall enter into a monetary basis for deed of covenant with LUL in the Company’s failure to perform such Obligations same form or substantially in the form of this Licence and in accordance with the Agreementsfollowing provisions of this clause 10.
10.8 In connection with any such proposal and application for approval, the Guarantor will provide to LUL such information about the Substitute Guarantor as shall reasonably demonstrate that the good standing and repute and the financial standing and resources of the Substitute Guarantor are appropriate and sufficient to assume and discharge the obligations (both actual and contingent) on the part of the Licensee and the Guarantor contained in this Licence.
10.9 If any of the following circumstances applies, either at the date when application for LUL’s approval is made or after that date but before LUL’s approval is given, then LUL may withhold its approval and if after LUL’s approval has been given, but before the said deed of covenant has been entered into, any such circumstances applies then LUL may revoke its approval until and if the circumstances cease to apply. The circumstances are:
10.9.1 that any sum properly due from the Licensee under this Licence remains unpaid;
10.9.2 that there is a material breach of any of the covenants on the part of the Licensee in this Licence;
10.9.3 that in LUL’s reasonable opinion the Substitute Guarantor is a person who does not, or may become a person who does not, satisfy the requirements set out in clause 10.8;
10.9.4 that the Substitute Guarantor is an entity registered or otherwise resident outside the United Kingdom; or
10.9.5 that the Substitute Guarantor enjoys diplomatic or state immunity.
10.10 Subject to LUL having previously approved the identity of the Substitute Guarantor in accordance with this clause (such approval not to be unreasonably withheld or delayed), the Licensee’s Solicitors shall provide to LUL’s Solicitors three engrossments of the said deed of covenant (having first been approved by LUL) duly executed and delivered in escrow by the Licensee and the Substitute Guarantor and for execution by LUL
10.11 The Guarantor’s obligations under this Licence will cease and determine upon completion of such deed of covenant but such cesser and determination will be without prejudice to the Guarantor’s liability for any antecedent breach of obligation by the Guarantor.
Appears in 2 contracts
Sources: Licence to Carry Out Demolition Works, Licence to Carry Out Demolition Works
Guarantee. i. (i) The Guarantor hereby hereby, jointly and severally, absolutely, unconditionally and irrevocably irrevocably, guarantees to the Purchaser Purchasers and its their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations. The Guarantor’s liability under this Guarantee shall be unlimited, open and continuous for so long as this Guarantee remains in force.
(ii. ) Anything herein or in any of the other Agreements Transaction Document to the contrary notwithstanding, the maximum liability of the Guarantor hereunder and under the other Agreements Transaction Documents shall in no event exceed the amount which can be guaranteed by the Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generallygenerally (after giving effect to the right of contribution set forth in Section 2(b)).
(iii. The ) Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of the Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser Purchasers hereunder.
(iv. ) The guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations and the obligations of the Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full.
v. (v) No payment made by the Company, the Guarantor Guarantor, any other guarantor or any other Person or received or collected by the Purchaser Purchasers from the Company, the Guarantor Guarantor, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the Guarantor in respect of the Obligations or any payment received or collected from the Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder until the Obligations are paid in full.
(vi. ) Notwithstanding anything to the contrary in this AgreementGuarantee, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s 's Common Stock), the Guarantor shall only be liable for making the Purchaser Purchasers whole on a monetary basis for the Company’s 's failure to perform such Obligations in accordance with the AgreementsTransaction Documents.
Appears in 2 contracts
Sources: Subsidiary Guarantee (Adamis Pharmaceuticals Corp), Subsidiary Guarantee (Axis Technologies Group Inc)
Guarantee. i. The (a) Each Guarantor hereby hereby, jointly and severally, unconditionally and irrevocably guarantees to the Purchaser Administrative Agent, for the ratable benefit of the Lenders and its their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company each Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Borrower Obligations. As used in this Guarantee, the term “Lenders” includes affiliates of Lenders which are parties to any Specified Cash Management Agreements or Specified Swap Agreements.
ii. (b) Anything herein or in any of the other Agreements to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder and under the other Agreements shall in no event exceed the amount which can be guaranteed by the such Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting debtors (after giving effect to the rights right of creditors generallycontribution established in Section 2.2).
iii. The (c) Each Guarantor agrees that the Borrower Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 Guarantee or affecting the rights and remedies of the Purchaser Administrative Agent or any Lender hereunder.
iv. The guarantee contained in this Section 2 (d) This Guarantee shall remain in full force and effect until all the Borrower Obligations and the obligations of the each Guarantor under the guarantee contained in this Section 2 Guarantee shall have been satisfied by payment in fullfull in immediately available funds, no Letter of Credit shall be outstanding and the Commitments shall be terminated, notwithstanding that from time to time during the term of the Credit Agreement the Borrowers may be free from any Borrower Obligations.
v. (e) No payment made by the Companyany Borrower, the Guarantor any Guarantor, any other guarantor or any other Person or received or collected by the Purchaser Administrative Agent or any Lender from the Companyany Borrower, the Guarantor any Guarantor, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Borrower Obligations or any payment received or collected from the such Guarantor in respect of the Borrower Obligations), remain liable for the Borrower Obligations up to the maximum liability of the such Guarantor hereunder until the Borrower Obligations are paid in fullfull in immediately available funds, no Letter of Credit shall be outstanding and the Commitments are terminated.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Sources: Credit Agreement (Ralph Lauren Corp), Credit Agreement (Polo Ralph Lauren Corp)
Guarantee. i. The Guarantor hereby (a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably irrevocably, guarantees to the Purchaser Security Agent, for the ratable benefit of the Lenders and its their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Borrower Obligations.
ii. (b) Anything herein or in any of the other Agreements Loan Document to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder and under the other Agreements Loan Documents shall in no event exceed the amount which can be guaranteed by the such Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting debtors (after giving effect to the rights right of creditors generallycontribution established in Section 2.2).
iii. The (c) Each Guarantor agrees that the Borrower Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser Security Agent or any Lender hereunder.
iv. (d) The guarantee contained in this Section 2 shall remain in full force and effect until all the Borrower Obligations and the obligations of the each Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in fullfull and the Loan Commitment shall be terminated, notwithstanding that from time to time during the term of the Credit Agreement the Borrower may be free from any Borrower Obligations.
v. (e) No payment made by the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person or received or collected by the Purchaser Security Agent or any Lender from the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Borrower Obligations or any payment received or collected from the such Guarantor in respect of the Borrower Obligations), remain liable for the Borrower Obligations up to the maximum liability of the such Guarantor hereunder until the Borrower Obligations are paid in fullfull and the Loan Commitment is terminated.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Sources: Convertible Loan Agreement (Time Warner Inc/), Convertible Loan Agreement (Time Warner Inc/)
Guarantee. i. (a) The Guarantor hereby unconditionally and irrevocably guarantees to the Purchaser Administrative Agent, for the ratable benefit of the Secured Parties and its each of their respective successors, indorseesendorsees, transferees and assigns, the prompt and complete payment and performance by the Company Borrower and its Subsidiaries when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations. This is a guarantee of payment and not collection and the liability of the Guarantor is primary and not secondary.
ii. (b) Anything herein or in any of the other Agreements Loan Document to the contrary notwithstanding, the maximum liability of the Guarantor hereunder and under the other Agreements Loan Documents shall in no event exceed the amount which can be guaranteed by the Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii. (c) The Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of the Guarantor hereunder without impairing the guarantee contained in this Section 2 Article II or affecting the rights and remedies of the Purchaser Administrative Agent or any Secured Party hereunder.
iv(d) The Guarantor agrees that if the maturity of any of the Obligations is accelerated by bankruptcy or otherwise, such maturity shall also be deemed accelerated for the purpose of this guarantee without demand or notice to the Guarantor. The guarantee contained in this Section 2 Article II shall remain in full force and effect until all the Obligations and the obligations of the Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full, and the Credit Agreement and the total Commitments shall be terminated, notwithstanding that from time to time during the term of the Credit Agreement, no Obligations may be outstanding.
v. (e) No payment made by the CompanyBorrower, the Guarantor any other guarantor or any other Person or received or collected by the Purchaser Administrative Agent or any other Secured Party from the CompanyBorrower, the Guarantor any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the Guarantor in respect of the Obligations or any payment received or collected from the Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder until the Obligations are paid in full, and the Credit Agreement and the total Commitments are terminated.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Sources: Second Lien Guarantee and Pledge Agreement (Kodiak Oil & Gas Corp), Second Lien Guarantee and Pledge Agreement (Kodiak Oil & Gas Corp)
Guarantee. i. The In the event that the Tenant assigns this Lease or sublets all or part of the Leased Premises during the initial term with the consent of the Landlord, in consideration of the premises and other valuable consideration, the receipt whereof and the sufficiency whereof is hereby acknowledged by the Tenant, the Tenant as Guarantor does hereby unconditionally guarantee all obligations of the then Tenant under this Lease and irrevocably guarantees to accordingly covenants with the Purchaser Tenant that all the covenants, agreements and its successors, indorsees, transferees and assignsother obligations of the then Tenant herein shall be fully performed, the prompt and complete payment and performance by guarantee being upon the Company when due following terms:
(whether at the stated maturity, by acceleration or otherwisei) of the Obligations.
ii. Anything herein or in any of the other Agreements to the contrary notwithstanding, the maximum The liability of the Guarantor hereunder to the Landlord is for all purposes as if the Guarantor was primary obligor herein, and under not only sureties for the obligations of the then Tenant, and the Landlord is not obliged to resort to or exhaust any recourse which it has against the then Tenant or any other Agreements person before being entitled to claim against the Guarantor;
(ii) Any account settled or stated or any other settlement made between the Tenant and the Landlord, and any determination made pursuant to the provisions of this Lease which is expressed to be binding upon the then Tenant is binding upon the Guarantor;
(iii) The Guarantor shall in no event exceed make payment to the Landlord of any amount which can be guaranteed properly payable by the Guarantor under applicable federal and state laws, including laws relating then Tenant to the insolvency Landlord but unpaid upon demand, and shall upon demand perform any other obligations under this Lease which the then Tenant has failed to perform, and any demand made by the Landlord upon the Guarantor is deemed to have been effectually made if notice thereof is sent as provided in paragraph 4.07;
(iv) No assignment of debtorsthe Lease, fraudulent conveyance sublease or transfer any other dealings therewith by the then Tenant, whether with or laws affecting without the rights consent of creditors generallythe Landlord, affects the guarantee;
(v) Nothing except the performance in full of all the obligations of the then Tenant under this Lease throughout the Term shall, except as provided in paragraph 1.11(c), discharge the Guarantor of this guarantee;
(vi) If during the Term the then Tenant makes an assignment for the general benefit of its creditors, or an order is made for the winding up of the then Tenant, or a receiving order in bankruptcy is made by or against the Landlord, and the assignee, liquidator or trustee surrenders possession of the Premises or any part of them or disclaims the lease, the Guarantor shall forthwith upon the demand of the Landlord at the Guarantor’s expense, accept from the Tenant a lease of the Premises (the “New Lease”) for a period equal in duration to the residue of the term remaining unexpired from the date of surrender or disclaimer at the same Minimum Rent and Additional Rent and with the same covenants and provisos as are reserved and contained in the Lease.
iii. The Guarantor agrees that (c) This guarantee and all the Obligations may at any time liabilities and from time to time exceed the amount of the liability obligations of the Guarantor hereunder without impairing shall forthwith cease and terminate upon the guarantee contained in this Section 2 or affecting the rights and remedies completion of the Purchaser hereunderInitial or Renewal Term.
iv. The guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations and the obligations of the Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full.
v. No payment made by the Company, the Guarantor or any other Person or received or collected by the Purchaser from the Company, the Guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the Guarantor in respect of the Obligations or any payment received or collected from the Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder until the Obligations are paid in full.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Sources: Lease Agreement (Viventia Bio Inc.), Lease Agreement (Viventia Bio Inc.)
Guarantee. i. 6.1 The Guarantor hereby unconditionally and irrevocably guarantees to the Purchaser Beneficiary that the Building Contractor will observe and perform the obligations on its successors, indorsees, transferees part contained in this Deed and assigns, that in the prompt and complete payment and performance case of any default the Guarantor will on demand by the Company when due Beneficiary perform and observe the obligations in respect of which the Contractor is in default and will be responsible to the Beneficiary for all losses, damages, costs and expenses thereby suffered or incurred by the Beneficiary PROVIDED THAT:
(whether at a) no alterations in the stated maturity, by acceleration terms of or otherwise) termination of or under the Contract or in the extent or nature of the Obligations.
ii. Anything herein Works and no neglect or forbearance on the part of the Beneficiary in endeavouring to enforce the performance of observance of the said obligations or any extra time allowed in respect thereof or any compromise or arrangements made by the Beneficiary with the Contractor (with or without the Guarantor’s consent) shall release or exonerate the Guarantor or in any way prejudice the rights and remedies of the other Agreements to Beneficiary under this clause; and
(b) the contrary notwithstanding, Guarantor’s liability in respect of this guarantee will not be greater than the maximum liability of the Guarantor hereunder and Contractor under the other Agreements shall this Deed in no event exceed the amount which can be guaranteed by the Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance either extent or transfer or laws affecting the rights of creditors generallyduration.
iii. 6.2 The Guarantor agrees covenants with the Beneficiary that if the Obligations may at any time Contractor goes into liquidation and from time to time exceed the amount of liquidator shall disclaim the Contract or this Deed the liability of the Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser hereunder.
iv. The guarantee contained in this Section 2 shall remain in full force and effect until all as if such disclaimer had not occurred.
6.3 For the Obligations benefit of the Beneficiary and the obligations of the Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full.
v. No payment made by the CompanyContractor, the Guarantor waives any right or remedy that it has or may have to subrogation, indemnification or payment on any other Person or received or collected basis by the Purchaser from the Company, the Guarantor or Contractor and any other Person remedy against the Contractor (each a “Relevant Right”) by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction reason of or in payment connection with the performance of the Obligations shall be deemed to modifyGuarantor’s obligations under this Warranty in circumstances where the Contractor promotes, reduceenters into, release or otherwise affect the liability implements a voluntary arrangement (as defined in section 1(1) of the Guarantor hereunder which shall, notwithstanding any such payment Insolvency ▇▇▇ ▇▇▇▇ or equivalent legislation in another jurisdiction (other than any payment made by as the Guarantor case may be)) or formal scheme of arrangement (under Part 26 of the Companies ▇▇▇ ▇▇▇▇ or equivalent legislation in another jurisdiction (as the case may be)). Damages shall not be an adequate remedy for the Employer or the Contractor in respect of a breach of this clause and the Obligations or any payment received or collected from the Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder until the Obligations are paid in full.
vi. Notwithstanding anything to the contrary in this Agreement, with respect parties shall consent to any defaulted non-monetary Obligations the specific performance of which application brought by the Guarantor is not reasonably possible (e.g. Employer or the issuance of the Company’s Common Stock), the Guarantor shall only be liable Contractor for making the Purchaser whole on a monetary basis for the Company’s failure injunctive relief to perform prevent any such Obligations in accordance with the AgreementsRelevant Right being enforced.]
Appears in 2 contracts
Sources: Lease Agreement (Gw Pharmaceuticals PLC), Agreement for Lease (Gw Pharmaceuticals PLC)
Guarantee. i. The Guarantor hereby unconditionally and irrevocably 5.1 In consideration of Sellers entering into this Agreement, TMW guarantees to Sellers the Purchaser due and its successorspunctual performance and observance by Buyer and MSP of all their obligations, indorseescommitments, transferees undertakings, warranties and assigns, the prompt and complete payment and performance covenants under or pursuant to this Agreement. The liability of TMW under this Article 5.1 shall not be released or diminished by the Company when due any variation of terms (whether at the stated maturity, by acceleration of this Agreement or otherwise) or by Sellers’ failure or delay in seeking performance of the ObligationsBuyer’s and/or MSP’ obligations hereby imposed or any granting of time for such performance.
ii5.2 If Buyer and/or MSP default in the performance of any obligation or liability arising under or pursuant to this Agreement, TMW shall perform (or procure performance of) and satisfy (or procure the satisfaction of) such obligation or liability so as to ensure Sellers receive the full benefit of this Agreement. Anything herein TMW waives any rights which it may have to require Sellers to proceed first against or in any of the other Agreements claim payment from Buyer and/or MSP to the contrary notwithstandingintent that TMW shall be liable as principal obligor as if it has entered all undertakings, agreements and other obligations jointly and severally with Buyer and/or MSP.
5.3 This guarantee is a continuing security to Sellers for all Buyer’s and/or MSP’s obligations, commitments, warranties, undertakings, indemnities and covenants pursuant to this Agreement and shall not be satisfied, discharged or affected by a change in the maximum liability of the Guarantor hereunder and under the other Agreements shall in no event exceed the amount which can be guaranteed by the Guarantor under applicable federal and state lawsconstitution or control of, including laws relating to or the insolvency of debtorsor winding-up or analogous proceeding relating to, fraudulent conveyance or transfer or laws affecting the rights of creditors generallyBuyer and/or MSP.
iii. The Guarantor 5.4 TMW agrees that any obligation expressed to be undertaken by Buyer and/or MSP under this Agreement which may not be enforceable against or recoverable from the Obligations may at Buyer or MSP by reason of any time and legal limitation, disability or incapacity shall nevertheless be enforceable against or recoverable from time TMW as though the same has been incurred by TMW.
5.5 TMW’s liability under Article 5.1 shall not be affected by any arrangements which Sellers make with the Buyer and/or MSP or with another person which (but for this Article 5.5) might operate to time exceed the amount of diminish or discharge the liability of or otherwise provide a defence to a surety.
5.6 This guarantee is in addition to and without prejudice to and not in substitution for any rights or security which Sellers may now or in the Guarantor hereunder without impairing future have for the guarantee contained in this Section 2 or affecting the rights performance and remedies observance of the Purchaser hereunder.
iv. The guarantee contained in this Section 2 shall remain in full force obligations, commitments, undertakings, covenants, indemnities and effect until all the Obligations and the obligations warranties of the Guarantor Buyer and/or MSP under the guarantee contained in this Section 2 shall have been satisfied by payment in full.
v. No payment made by the Company, the Guarantor or any other Person or received or collected by the Purchaser from the Company, the Guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the Guarantor in respect of the Obligations or any payment received or collected from the Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder until the Obligations are paid in full.
vi. Notwithstanding anything to the contrary in connection with this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Sources: Investment, Shareholders’ and Stock Purchase Agreement (Mens Wearhouse Inc), Investment, Shareholders’ and Stock Purchase Agreement (Mens Wearhouse Inc)
Guarantee. i. (a) The CME Guarantor hereby unconditionally unconditionally, irrevocably and irrevocably absolutely guarantees to the Purchaser Administrative Agent, for the ratable benefit of the Lenders and its their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations.
ii. (b) This Guarantee shall remain in full force and effect until all amounts owing to the Administrative Agent and the Lenders by Borrower on account of the Obligations are paid in full and the Lenders’ commitments, if any, to make Loans under the Credit Agreement are terminated.
(c) The CME Guarantor agrees that whenever, at any time, or from time to time, it shall make any payment to the Administrative Agent or any Lender on account of its liability hereunder, it will notify the Administrative Agent and such Lender in writing that such payment is made under this Guarantee for such purpose.
(d) Anything herein or in any of the other Agreements Credit Document to the contrary notwithstanding, the maximum liability of the CME Guarantor hereunder and under the other Agreements Credit Documents shall in no event exceed the amount which can be guaranteed by the CME Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii. The Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of the Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser hereunder.
iv. The guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations and the obligations of the Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full.
v. (e) No payment or payments made by the CompanyBorrower, the CME Guarantor or any other Person or received or collected by the Purchaser Administrative Agent or any Lender from the CompanyBorrower, the Guarantor CME Guarantor, or any other Person by virtue of any action or proceeding or any set-off setoff or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the CME Guarantor hereunder which who shall, notwithstanding any such payment or payments (other than any payment payments made by the CME Guarantor in respect of the Obligations or any payment payments received or collected from the CME Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the CME Guarantor hereunder until the Obligations are paid in fullfull and the Lenders’ commitments, if any, to make Loans under the Credit Agreement are terminated.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Sources: Credit Agreement (Central European Media Enterprises LTD), Guarantee (Central European Media Enterprises LTD)
Guarantee. i. The To induce the Company to enter into the Merger Agreement, the Limited Guarantor hereby irrevocably, absolutely, and unconditionally and irrevocably guarantees to the Purchaser Company, on the terms and its successorsconditions set forth herein, indorseesdue and punctual payment, transferees performance and assigns, discharge of the prompt payment obligations or liabilities of each of Parent and complete payment and performance by the Company when due Merger Sub under (whether at the stated maturity, by acceleration or otherwisea) Section 7.2(b) of the Obligations.
ii. Anything herein or in any Merger Agreement (the “Parent Fee Obligation”) and (b) the last sentence of Section 5.10 and Section 7.2(d) of the other Agreements to Merger Agreement (the contrary notwithstanding, the maximum liability of the Guarantor hereunder and under the other Agreements shall “Other Obligations”); provided that (a) in no event exceed the amount which can be guaranteed by the Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii. The Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of shall the liability of the Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser hereunder.
iv. The guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations and the obligations of the Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full.
v. No payment made by the Company, the Guarantor or any other Person or received or collected by the Purchaser from the Company, the Guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the Limited Guarantor in respect of the Parent Fee Obligation exceed $28,050,000 (the “Cap”; the Parent Fee Obligation, as limited by the Cap, collectively with the Other Obligations, the “Obligations”), it being understood that the Company will not seek to enforce this Limited Guarantee with respect to the Parent Fee Obligation without giving effect to the Cap, (b) in no event shall Limited Guarantor be obligated to pay more than 85% of any Other Obligations arising under the last sentence of Section 5.10 and (c) Limited Guarantor’s obligation to pay under Section 7.2(d) shall be limited to its failure or any payment received delay to satisfy its portion of the Parent Fee Obligation) . In furtherance of the foregoing, the Limited Guarantor acknowledges that its liability under this Limited Guarantee shall extend to the Obligations and that the Company may, in its sole discretion, bring and prosecute a separate action or collected from actions against the Limited Guarantor in respect for the full amount of the Obligations), remain liable regardless of whether action is brought against Parent, Merger Sub or any other guarantor or Person, whether Parent, Merger Sub or any other Person is joined in any such action or actions or whether Parent, Merger Sub or any other Person were primarily responsible for causing the Obligations up to payment obligations of Parent, Merger Sub or the maximum liability of Limited Guarantor under the Guarantor hereunder until the Obligations are paid in fullMerger Agreement.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Sources: Limited Guarantee (Leever Daniel H), Limited Guarantee (Weston Presidio v Lp)
Guarantee. i. The Guarantor hereby 1.1 I/We unconditionally and irrevocably guarantees agree with you as principal obligor and not merely as surety to the Purchaser pay and its successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company when due (whether at the stated maturity, by acceleration satisfy to you on demand all balances which are now or otherwise) of the Obligations.
ii. Anything herein or in any of the other Agreements to the contrary notwithstanding, the maximum liability of the Guarantor hereunder and under the other Agreements shall in no event exceed the amount which can may be guaranteed by the Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii. The Guarantor agrees that the Obligations may at any time and from time to time exceed hereafter due to you by the Client in whatever capacity under the Account pursuant to the Agreement, including:
(a) In case of the death, bankruptcy, liquidation, incapacity, disability or lack or limitation of authority or power of the Client, all sums owing to you under the Account prior to your receiving the actual notice of such event; and
(b) all monies or liabilities owing under any credit or facilities granted to the Client under the Account notwithstanding any invalidity or irregularity of such grant or arrangement.
1.2 You may at all times without notifying and obtaining consent from me/us and without affecting my/our liability hereunder:
(a) grant, extend, vary or determine any credit, facility or accommodation to the Client;
(b) vary the interest rate to the Account;
(c) grant any time or indulgence to the Client under the Account.
1.3 To secure my/our obligations hereunder, I/we hereby grant to you a security interest in, a general continuing lien upon and a right to set-off against (i) all my/our present and future credit balances with you or your associated companies and my/our other present or future claim against you or your associated companies and (ii) all my/our interest in or to any securities and commodities and other property which have been or at any time shall be delivered to or otherwise come into the possession, custody or control of you or your associated companies.
1.4 The notices, statements or other communications issued by you in relation to the Account shall be accepted by me/us as conclusive evidence to the amount or liabilities under the Account and/or under this Guarantee unless written notice from me/us to the contrary is received by you within 5 calendar days from the date thereof.
1.5 My/Our liability hereunder will not be affected by your failure to take steps to recover the monies against the Client or enforce any security or the invalidity of any security.
1.6 Notwithstanding that the Client is an unincorporated body which has no legal existence, this Guarantee shall be valid and binding on me/us.
1.7 My/Our liability hereunder will not be affected by any change in the constitution of the liability Client or the death of the Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser hereunderany partner therein.
iv. The guarantee contained in this Section 2 1.8 This Guarantee shall remain in full force be a continuing security and effect until shall cover all sums of money which shall for the Obligations and time being constitute the obligations of balance due from the Guarantor Client to you under the guarantee contained Account unless and until you have expressly consented to my/our termination of this Guarantee in this Section 2 shall have been satisfied by payment in fullwriting.
v. No payment made 1.9 This Guarantee shall be a continuing security binding on my/our respective executor, administrator, personal representative, official receiver or liquidator.
1.10 You may place and keep any monies received by virtue of this Guarantee (whether before or after the Companyinsolvency or liquidation of me/us or the Client) to the credit of a suspense account for so long as you think fit in order to preserve your right to sue or prove for the whole amount of your claims against me/us, the Guarantor Client or any other Person or received or collected by the Purchaser from the Company, the Guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the Guarantor in respect of the Obligations or any payment received or collected from the Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder until the Obligations are paid in fullperson.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Sources: Guarantee Agreement, Guarantee Agreement
Guarantee. i. The Guarantor hereby (a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably irrevocably, guarantees to the Purchaser Administrative Agent, for the ratable benefit of the Secured Parties and its their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Borrower Obligations.
ii. (b) Anything herein or in any of the other Agreements Loan Document to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder and under the other Agreements Loan Documents shall in no event exceed the amount which can be guaranteed by the such Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting debtors (after giving effect to the rights right of creditors generallycontribution established in Section 2.2).
iii. The (c) Each Guarantor agrees that the Borrower Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser Administrative Agent or any Lender hereunder.
iv. (d) The guarantee contained in this Section 2 shall remain in full force and effect until all the Borrower Obligations and the obligations of the each Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full, no Letter of Credit shall be outstanding and the Commitments shall be terminated, notwithstanding that from time to time during the term of the Credit Agreement the Borrower may be free from any Borrower Obligations.
v. (e) No payment made by the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person or received or collected by the Purchaser Administrative Agent or any Lender from the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Borrower Obligations or any payment received or collected from the such Guarantor in respect of the Borrower Obligations), remain liable for the Borrower Obligations up to the maximum liability of the such Guarantor hereunder until the Borrower Obligations are paid in full, no Letter of Credit shall be outstanding and the Commitments are terminated.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 2 contracts
Sources: First Lien Guarantee and Collateral Agreement (WEB.COM Group, Inc.), Credit Agreement (Mirant North America, LLC)
Guarantee. i. The Subject to the provisions of this Section 12.02, Guarantor hereby fully, unconditionally and irrevocably guarantees to the Purchaser Company the due and its successorspunctual payment of (i) any and all amounts payable by Buyer pursuant to Article 2 or Article 9 or (ii) in the event Closing does not occur, indorsees, transferees and assignsany monetary obligation of Buyer to the Company resulting from such failure to close (together with clause (i) immediately above, the prompt and complete “Guaranteed Obligation”). Guarantor hereby acknowledges that this guaranty of the Guaranteed Obligation shall be a guaranty of payment and performance and not of collection and shall not be conditioned or contingent upon the pursuit of any remedies against Buyer. Guarantor agrees that (A) if Buyer fails to make any payments of the Guaranteed Obligations when due, such amount shall for purposes hereof, be immediately due and payable by Guarantor by wire transfer of immediately available funds to an account or accounts designated by the Company when due upon written notice from the Company to Guarantor demanding payment thereof and (whether at B) the stated maturity, by acceleration or otherwise) of the Obligations.
ii. Anything herein or in any of the other Agreements to the contrary notwithstanding, the maximum liability of the Guarantor hereunder and under the other Agreements shall in no event exceed the amount which can be guaranteed by the Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii. The Guarantor agrees that the Obligations Company may at any time and from time to time exceed time, so long as Buyer has failed to pay the amount Guaranteed Obligation if due, take any and all actions available hereunder or under Applicable Law to collect the Guaranteed Obligation from Guarantor. Guarantor hereby waives diligence, demand of payment, filing of claims with a court in the event of a merger or bankruptcy of Buyer, any right to require a proceeding first against Buyer, the benefit of discussion, protest or notice and all demands whatsoever, and covenants that this guaranty will not be discharged as to any obligation except by satisfaction of the liability Guaranteed Obligation in full. Guarantor hereby irrevocably waives any claim or other rights which it may now or hereafter acquire against Buyer that arise from the existence, payment, performance or enforcement of its obligations under this guaranty and this Agreement, including any right of reimbursement, exoneration, contribution, indemnification, any right to participate in any claim or remedy of the Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser hereunder.
iv. The guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations and the obligations of the Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full.
v. No payment made by the Company, the Guarantor Company against Buyer or any collateral which the Company hereafter acquires, whether or not such claim, remedy or right arises in equity, or under contract, statute or common law, including the right to take or receive from Parent, directly or indirectly, in cash or other Person property or received or collected by the Purchaser from the Company, the Guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation in any other manner, payment or application at security on account of such claim or other rights. To the fullest extent permitted by Applicable Law, the obligations of Guarantor hereunder shall not be affected by (a) the failure of a party to assert any time claim or demand or to enforce any right or remedy against Buyer pursuant to the provisions of this Agreement or otherwise, (b) any rescission, waiver, amendment or modification of, or any release from time to time any of the terms or provisions of this Agreement or the invalidity or unenforceability (in reduction of whole or in payment part) of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the Guarantor in respect of the Obligations or any payment received or collected from the Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder until the Obligations are paid in full.
vi. Notwithstanding anything to the contrary in this Agreement, with respect unless consented to any defaulted non-monetary Obligations the specific performance of which in writing by the Company and (c) any change in the existence (corporate or otherwise) of Buyer or Guarantor is not reasonably possible (e.g. or any insolvency, bankruptcy, reorganization or similar proceeding affecting any of them or their assets. Guarantor acknowledges that it will receive direct and indirect benefits from the issuance consummation of the Company’s Common Stock), transactions contemplated hereby and that the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform waivers set forth in this Section 12.02 are knowingly made in contemplation of such Obligations in accordance with the Agreementsbenefits.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Actua Corp), Merger Agreement (Actua Corp)
Guarantee. i. The Guarantor hereby (a) Subject to the provisions of Section 2(b), each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably guarantees irrevocably, guarantees, as primary obligor and not merely as surety, to the Purchaser and its successorsCollateral Agent, indorsees, transferees and assignsfor the ratable benefit of the Secured Parties, the prompt and complete payment and performance by the Company when due (whether at the stated maturity, by acceleration required prepayment, acceleration, demand or otherwise) of the ObligationsObligations of anyone other than such Guarantor (including amounts that would become due but for operation of the automatic stay under 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a)).
ii. (b) Anything herein or in any of the other Agreements Credit Document to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder and under the other Agreements Credit Documents shall in no event exceed the amount which that can be guaranteed by the such Guarantor under the Bankruptcy Code or any applicable federal and state laws, including laws relating to fraudulent conveyances, fraudulent transfers or the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii. The (c) Each Guarantor further agrees to pay any and all expenses (including all reasonable fees and disbursements of counsel) that may be paid or incurred by the Collateral Agent or any other Secured Party in enforcing, or obtaining advice of counsel in respect of, any rights with respect to, or collecting, any or all of the Obligations and/or enforcing any rights with respect to, or collecting against, such Guarantor under this Guarantee.
(d) Each Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 Guarantee or affecting the rights and remedies of the Purchaser Collateral Agent or any other Secured Party hereunder.
iv. The guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations and the obligations (e) No payment or payments made by any Borrower, any of the Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full.
v. No payment made by the CompanyGuarantors, the Guarantor any other guarantor or any other Person or received or collected by the Purchaser from the CompanyCollateral Agent, the Guarantor Administrative Agent or any other Secured Party from any Borrower, any of the Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder hereunder, which shall, notwithstanding any such payment (or payments, other than any payment payments made by the such Guarantor in respect of the Obligations or any payment payments received or collected from the such Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the such Guarantor hereunder until the Obligations under the Credit Documents are paid in full, the Commitments thereunder are terminated and no Letters of Credit shall be outstanding or any such Letters of Credit shall have been cash collateralized in a manner reasonably acceptable to the Letter of Credit Issuer and the Collateral Agent.
vi. Notwithstanding anything (f) Each Guarantor agrees that whenever, at any time, or from time to time, it shall make any payment to the contrary Collateral Agent or any other Secured Party on account of its liability hereunder, it will notify the Collateral Agent in writing that such payment is made under this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable Guarantee for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreementspurpose.
Appears in 2 contracts
Sources: Abl Credit Agreement (Dollar General Corp), Guarantee (DG Retail, LLC)
Guarantee. i. The Guarantor hereby (a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably irrevocably, guarantees to the Purchaser DIP Agent, for the ratable benefit of the Lenders and its their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Post-Petition Obligations.
ii. (b) Anything herein or in any of the other Agreements Loan Document to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder and under the other Agreements Loan Documents shall in no event exceed the amount which can be guaranteed by the such Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting debtors (after giving effect to the rights right of creditors generallycontribution established in Section 10.02).
iii. The (c) Each Guarantor agrees that the Post-Petition Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 Article 10 or affecting the rights and remedies of the Purchaser DIP Agent or any Lender hereunder.
iv. (d) The guarantee contained in this Section 2 Article 10 shall remain in full force and effect until all the Post-Petition Obligations and the obligations of the each Guarantor under the guarantee contained in this Section 2 Article 10 shall have been satisfied by payment in full, no LC Exposure shall be outstanding and the Commitments shall have been terminated, notwithstanding that from time to time during the term of this Agreement the Borrower may be free from any Post-Petition Obligations.
v. (e) No payment made by the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person or received or collected by the Purchaser DIP Agent or any Lender from the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Post-Petition Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Post-Petition Obligations or any payment received or collected from the such Guarantor in respect of the Post-Petition Obligations), remain liable for the Post-Petition Obligations up to the maximum liability of the such Guarantor hereunder until the Post-Petition Obligations are paid in full, no LC Exposure shall be outstanding and the Commitments are terminated.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 1 contract
Sources: Credit Agreement (Daisy Parts Inc)
Guarantee. i. 11.1 The Guarantor hereby unconditionally and irrevocably guarantees Seller shall free of charge either repair, or at its option, replace defective Panels where the defects appear under proper use within twenty (20) years from the Delivery Date, provided that:
(a) notice in writing of the defects complained of shall be given to the Purchaser and its successorsSeller upon their appearance;
(b) such defects shall be found to the Seller’s reasonable satisfaction to have arisen solely from the Seller’s faulty design, indorsees, transferees and assigns, workmanship or materials; and
(c) the prompt and complete payment and performance defective Panels shall be returned to the Seller’s place of business at the Buyer’s expense if so requested by the Company when due (whether Seller.
11.2 Any repaired or replaced Panels shall be redelivered by the Seller at the stated maturity, by acceleration Buyer’s expense to the original point of delivery but otherwise in accordance with and subject to this Agreement save that the guarantee period for the repaired or otherwise) replaced Panels shall be the unexpired portion of the Obligationsoriginal twenty (20) year period only.
ii. Anything herein or in 11.3 The Seller shall not be liable to replace any of the other Agreements Defective Panels if:
(a) the Buyer makes any further use of any or all of the Defective Panels after giving notice of any such defect;
(b) the Buyer alters or repairs the Defective Panels without the written consent of the Seller;
(c) the defect arises because the Buyer failed to follow any oral or written instructions as to the contrary notwithstandingstorage, installation, commissioning, use or maintenance of the Defective Panels or (if there none) good trade practice;
(d) the defect arises from any drawing, design or specification supplied by the Buyer, or from fair wear and tear, wilful damage, negligence, abnormal working conditions or from any misuse of the Defective Panels; or
(e) the defect is of a type specifically excluded by the Seller in writing.
11.4 Alternatively to Clause 11.1, the maximum liability Seller shall be entitled at its absolute discretion to refund the price of the Guarantor hereunder defective Panels and under the other Agreements shall in no event exceed the amount which can be guaranteed any liability owed by the Guarantor under applicable federal and state laws, including laws relating Seller to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii. The Guarantor agrees that the Obligations may at any time and from time Buyer pursuant to time exceed the amount of the liability of the Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser hereunder.
iv. The guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations and the obligations of the Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full.
v. No payment made by the Company, the Guarantor or any other Person or received or collected by the Purchaser from the Company, the Guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations Clause 11.1 shall be deemed to modifyhave been waived by the Buyer.
11.5 The Seller’s liability under this Clause 11 shall be to the exclusion of all other liability to the Buyer whether contractual, reducetortious, release or otherwise affect for defects in the liability of the Guarantor hereunder which shall, notwithstanding Panels or for any such payment (other than any payment made loss or damage to or caused by the Guarantor in respect of Panels and all other conditions, warranties, stipulations or other statements whatsoever concerning the Obligations Panels, whether express or any payment received implied, by statute, at common law or collected from the Guarantor in respect of the Obligations)otherwise howsoever, remain liable for the Obligations up to the maximum liability of the Guarantor hereunder until the Obligations are paid in fullhereby excluded.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 1 contract
Sources: Sales Contracts
Guarantee. i. The Guarantor hereby (a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably irrevocably, guarantees to the Purchaser Lender and its successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Borrower Obligations.
ii. (b) Anything herein or in any of the other Agreements Loan Document to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder and under the other Agreements Loan Documents shall in no event exceed the amount which can be guaranteed by the such Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting debtors (after giving effect to the rights right of creditors generallycontribution established in Section 2.2).
iii. The (c) Each Guarantor agrees that the Borrower Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser Lender hereunder.
iv. (d) The guarantee contained in this Section 2 shall remain in full force and effect until all the Borrower Obligations and the obligations of the each Guarantor under the guarantee contained in this Section 2 (in each case excluding inchoate indemnity obligations) shall have been satisfied by payment in fullfull (the “Discharge of Obligations”), notwithstanding that from time to time during the term of the Loan Agreement the Borrower may be free from any Borrower Obligations.
v. (e) No payment made by Borrower, any of the CompanyGuarantors, the Guarantor any other guarantor or any other Person or received or collected by Lender from Borrower, any of the Purchaser from the CompanyGuarantors, the Guarantor any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Borrower Obligations or any payment received or collected from the such Guarantor in respect of the Borrower Obligations), remain liable for the Borrower Obligations up to the maximum liability of the such Guarantor hereunder until the Obligations are paid in fullDischarge of Obligations.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (Workhorse Group Inc.)
Guarantee. i. (a) The Guarantor Parent Borrower hereby unconditionally and irrevocably guarantees to the Purchaser Administrative Agent, for the ratable benefit of the Lenders and its their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company Subsidiary Borrowers when due (whether at the stated maturity, by acceleration or otherwise) of the ObligationsSubsidiary Obligations (other than, with respect to any Guarantor, any Excluded Swap Obligations of such Guarantor). As used in this Article IX, the term “Lenders” includes affiliates of Lenders which are parties to any Specified Cash Management Agreements or Specified Swap Agreements.
ii. Anything herein or in any of the other Agreements to the contrary notwithstanding, the maximum liability of the Guarantor hereunder and under the other Agreements shall in no event exceed the amount which can be guaranteed by the Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii. (b) The Guarantor Parent Borrower agrees that the Subsidiary Obligations may at any time and from time to time exceed the amount of the liability of the Guarantor Parent Borrower hereunder that would exist in the absence of this Article IX without impairing the guarantee contained in this Section 2 Guarantee or affecting the rights and remedies of the Purchaser Administrative Agent or any Lender hereunder.
iv. The guarantee contained in this Section 2 (c) This Guarantee shall remain in full force and effect until all the Subsidiary Obligations and the obligations of the Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in fullfull in immediately available funds, no Letter of Credit shall be outstanding and the Commitments shall be terminated, notwithstanding that from time to time during the term of this Guarantee the Subsidiary Borrowers may be free from any Subsidiary Obligations.
v. (d) No payment made by the Companyany Borrower, the Guarantor any Guarantor, any other guarantor or any other Person or received or collected by the Purchaser Administrative Agent or any Lender from the Companyany Borrower, the Guarantor any Guarantor, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Subsidiary Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor Parent Borrower hereunder which shall, notwithstanding any such payment (other than any payment made by the Guarantor Parent Borrower in respect of the Subsidiary Obligations or any payment received or collected from the Guarantor Parent Borrower in respect of the Subsidiary Obligations), remain liable for the Subsidiary Obligations up to the maximum liability of the Guarantor hereunder until the Subsidiary Obligations are paid in fullfull in immediately available funds, no Letter of Credit shall be outstanding and the Commitments are terminated.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 1 contract
Sources: Credit Agreement (Ralph Lauren Corp)
Guarantee. i. In order to induce the Lenders, the Issuing Bank, the Swing Line Lender and the Agents to execute and deliver this Agreement and to make the Extensions of Credit hereunder, and in consideration thereof:
(a) The Guarantor Parent hereby unconditionally and irrevocably guarantees to the Purchaser and its successorsAdministrative Agent, indorsees, transferees and assignsfor the ratable benefit of the Lenders, the prompt and complete payment and performance by the Company when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations.
ii. Anything herein The Parent further agrees to pay any and all expenses (including, without limitation, all reasonable fees and disbursements of counsel) which may be paid or incurred by the Administrative Agent or by the Lenders in enforcing, or obtaining advice of counsel in respect of, any of the other Agreements to the contrary notwithstanding, the maximum liability of the Guarantor hereunder and their rights under the other Agreements shall in no event exceed the amount which can be guaranteed by the Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii. The Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of the Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser hereunder.
iv11. The This guarantee contained in this Section 2 shall remain in full force and effect until the Commitments have terminated, no L/C Obligations are outstanding and all amounts owing under this Agreement have been paid in full, notwithstanding that from time to time prior thereto the Obligations and Borrower may be free from any Obligations.
(b) The Parent agrees that whenever, at any time, or from time to time, it shall make any payment to the obligations Administrative Agent or any Lender on account of the Guarantor its liability under the guarantee contained in this Section 2 shall have been satisfied by 11, it will notify the Administrative Agent or such Lender in writing that such payment in full.
v. is made under this Section 11 for such purpose. No payment or payments made by the Company, the Guarantor Borrower or any other Person or received or collected by the Purchaser Administrative Agent or any Lender from the Company, the Guarantor Borrower or any other Person by virtue of any action or proceeding or any set-off or appropriation or application application, at any time or from time to time time, in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor Parent hereunder which shallshall remain obligated hereunder, notwithstanding any such payment or payments (other than any payment payments made by the Guarantor in respect of the Obligations or any payment received or collected from the Guarantor Parent in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder ) until the Obligations are date upon which all amounts owing under this Agreement have been paid in full.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 1 contract
Guarantee. i. The Guarantor (a) To induce the Lenders to execute and deliver this Agreement and to make the Loan and issue or participate in the Letters of Credit, and in consideration thereof, the Company hereby unconditionally and irrevocably guarantees to the Purchaser Administrative Agent, for the ratable benefit of the Lenders and its their respective successors, indorsees, transferees indorsees and assigns, the prompt and complete payment and performance by the Company when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations, and the Company further agrees to pay the expenses which may be paid or incurred by the Administrative Agent or the Lenders in collecting any or all of the Obligations and/or enforcing any rights under this Section 10.1 or under the Obligations in accordance with this Section 10.1. The guarantee contained in this Section 10.1 shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Company and the successors and assigns thereof, and shall inure to the benefit of the Lenders and their successors and permitted assigns, until the Obligations shall have been satisfied in full and the Loans shall be terminated.
ii. (b) Anything herein or in any of the other Agreements to the contrary notwithstanding, the maximum liability of the Guarantor Company hereunder and under the other Agreements shall in no event exceed the amount which can be guaranteed by the Guarantor Company under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii. (c) The Guarantor Company agrees to the extent permitted by applicable law that the Obligations may at any time and from time to time exceed the amount of the liability of the Guarantor Company hereunder without impairing the guarantee contained in this Section 2 10 or affecting the rights and remedies of the Purchaser Administrative Agent or any Lender hereunder.
iv. (d) The guarantee contained in this Section 2 10 shall remain in full force and effect until all the Obligations and the obligations of the Guarantor Company under the guarantee contained in this Section 2 10 shall have been satisfied by payment in full, all Letters of Credit shall have expired or been terminated and the Commitments shall be terminated, notwithstanding that from time to time during the term of this Agreement the Borrowers may be free from any Obligations.
v. (e) No payment made by the Companyany Borrower, the Guarantor Company or any other Person or received or collected by the Purchaser Administrative Agent or any Lender from the Companyany Borrower, the Guarantor Company or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor Company hereunder which shall, notwithstanding any such payment (other than any payment made by the Guarantor Company in respect of the Obligations or any payment received or collected from the Guarantor Company in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder until the Obligations are paid in fullfull and the Commitments are terminated.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 1 contract
Guarantee. i. The Guarantor hereby unconditionally a. Provided neither Lender nor Artist willingly and irrevocably guarantees knowingly breaches a material term and/or a continued series of breaches after notice thereof hereunder or under the Agreement, Lender shall be entitled to receive a guarantee of $550,000 (the Purchaser “Guarantee”) per year, which sum shall accrue and its successorsbecome payable to Lender in accordance with the terms set forth in Paragraph 8 below, indorseesand which sum shall be deemed an advance against and shall be fully recoupable by Silver Creek from any fixed (including any rights payments) and contingent compensation (including any box office bonuses and merchandising royalties) earned by and/or payable to Lender under the Agreement for development or otherwise (specifically excluding the Consulting Fee and the “Extended Term Overhead Allowance” as defined in Paragraph 7 below as well as monies payable to third parties such as writers) (the “Services Compensation”) (provided that the Guarantee shall only be deemed an advance and fully recoupable by Silver Creek from fifty percent [50%] of the aggregate applicable fixed compensation which Lender may be entitled to receive pursuant to Paragraphs II.C.2.a.i, transferees II.C.2.b.i or II.C.3.a through f. of the Agreement, as applicable), and assignsthe Services Compensation shall be deemed an advance against and fully recoupable from any unrecouped Guarantee; provided that after five Properties are actually exploited under the Agreement, only 50% of the prompt Guarantee shall be recoupable as set forth herein. To the extent that the Services Compensation exceeds the accrued and complete payment and performance by paid or payable portion of the Company when due (whether Guarantee at the stated maturitytime any Services Compensation has accrued and is payable, by acceleration or otherwise) Silver Creek agrees to pay Lender the excess thereof in the manner herein provided, and no further portion of the Obligations.
ii. Anything herein or in Guarantee shall be payable hereunder so long as the Services Compensation which has accrued and is payable on any given date exceeds the portion of the other Agreements to the contrary notwithstandingGuarantee accrued and paid through such date. Conversely, the maximum liability of the Guarantor hereunder and under the other Agreements shall in no event exceed the amount which can be guaranteed by the Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii. The Guarantor agrees that the Obligations may if at any time and from time to time exceed the amount of the liability of Guarantee which is accrued and paid or payable to Lender exceeds the Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser hereunder.
iv. The guarantee contained in this Section 2 Services Compensation then paid and/or payable, Silver Creek shall remain in full force and effect until all the Obligations and the obligations of the Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full.
v. No payment made by the Company, the Guarantor or any other Person or received or collected by the Purchaser from the Company, the Guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in resume payment of the Obligations Guarantee. Sums payable to third parties pursuant to a notice of irrevocable authority and assignment (executed by Lender or Artist) of all or a portion of any fixed compensation or contingent compensation payable to a third party shall be included as part of the Services Compensation for all purposes hereunder, except for Rejected Properties set up with third parties.
b. Following the expiration of the Extended Term, any unearned Guarantee shall be credited against any Services Compensation which Lender may be entitled to receive after the expiration of the Extended Term.
c. No compensation from which the Guarantee is to be recouped shall be paid to Lender (regardless of whether or not other sections of the Agreement call for such compensation to be payable to Lender) but instead shall be retained by WDP and credited toward recoupment of the Guarantee until the aggregate amount of the Guarantee is fully recouped. All compensation earned after the Guarantee is fully recouped shall be paid to Lender when and as specified in the applicable paragraph of the Agreement.
d. For purposes of clarity, the full aggregate amount of the Guarantee shall be deemed to modifyan advance against and fully applicable by Silver Creek from any and all Pictures and Non-Picture Projects produced under the Agreement, reduceprovided that Silver Creek shall not recoup any sum more than once (e.g., release or otherwise affect the liability if a portion of the Guarantor hereunder which shallGuarantee is recouped from a theatrical project, notwithstanding any such payment (other than any payment made by the Guarantor in respect of the Obligations or any payment received or collected that same portion may not also be recouped from the Guarantor in respect of the Obligationsa DTV project), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder until the Obligations are paid in full.
vi. Notwithstanding anything e. Silver Creek shall not have further recourse against Lender solely in the event that the amount payable to the contrary in Lender as Services Compensation is insufficient for Silver Creek to fully recoup its Guarantee under this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the AgreementsParagraph 6.
Appears in 1 contract
Guarantee. i. 14.1 The Guarantor hereby unconditionally and irrevocably irrevocably:
(a) guarantees to the Purchaser the payment when due of all amounts payable by the Seller to the Purchaser (or such person as the Purchaser may otherwise direct) under or pursuant to this agreement;
(b) undertakes to ensure that the Seller will perform when due all its obligations, commitments, undertakings and its successorswarranties under or pursuant to this agreement;
(c) agrees that if, indorsees, transferees and assignseach time that, the prompt Seller fails for any reason whatsoever to make any payment to the Purchaser when it is due under or pursuant to this agreement, the Guarantor shall forthwith upon demand unconditionally (without requiring the Purchaser first to take steps against the Seller) pay that amount to the Purchaser as if it were the principal obligor in respect of that amount; and
(d) agrees as principal debtor and complete primary obligor to indemnify the Purchaser against all losses and damages sustained by it flowing from any non-payment and performance or default of any kind by the Company when due (whether at the stated maturitySeller under or pursuant to this agreement, by acceleration or otherwise) of the Obligations.
ii. Anything herein or in any of the other Agreements to the contrary notwithstanding, the maximum liability of the Guarantor hereunder and under the other Agreements shall in no event exceed provided that the amount which can be guaranteed payable by the Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally.
iii. The Guarantor agrees that the Obligations may at any time and from time to time this indemnity will not exceed the amount it would have had to pay under this clause 14 had the amount claimed been recoverable on the basis of a guarantee.
14.2 The Guarantor’s obligations under this clause 14 will not be affected by any matter or thing which but for this provision might operate to affect or prejudice those obligations, including:
(a) any time or indulgence granted to, or composition with, the Seller or any other person;
(b) the taking, variation, renewal or release of, or neglect to perfect or enforce this agreement, or any right, guarantee, remedy or security from or against the Seller or any other person;
(c) any insolvency or similar proceeding;
(d) any variation or change to the terms of this agreement;
(e) any unenforceability, illegality or invalidity of any obligation of the Seller, so that this agreement shall be construed as if there were no such unenforceability, invalidity or invalidity; or
(f) any other fact or event which in the absence of this provision would or might constitute or afford a legal or equitable discharge or release or a defence to a guarantor.
14.3 The Purchaser shall not have any greater rights against the Guarantor than it has against the Seller under this agreement.
14.4 The Guarantor warrants to the Purchaser that:
(a) it is a limited liability company validly existing under the laws of the Netherlands, has been in continuous existence since its incorporation and has the requisite power and authority to enter into and perform, and has taken or will have taken by Completion all corporate action necessary to authorise the execution and delivery and the performance of its obligations under, this agreement;
(b) this agreement constitutes its legal, valid and binding obligations enforceable against it in accordance with its terms;
(c) the execution and delivery by the Guarantor hereunder without impairing of this agreement and the guarantee contained in this Section 2 performance of its obligations under it do not and will not conflict with or constitute a default under any provision of its constitutional documents, any order or judgment of any court or other agency or government applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets; and
(d) all authorisations from, and all notices or filings with, any governmental or other authority that are necessary to enable the rights Guarantor to execute, deliver and remedies of perform its obligations under this agreement have been obtained or made (as the Purchaser hereunder.
iv. The guarantee contained in this Section 2 shall remain case may be) and are in full force and effect until and all the Obligations and the obligations conditions of the Guarantor under the guarantee contained in this Section 2 shall each such authorisation have been satisfied by payment in fullcomplied with.
v. No payment made by the Company, the Guarantor or any other Person or received or collected by the Purchaser from the Company, the Guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the Guarantor in respect of the Obligations or any payment received or collected from the Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder until the Obligations are paid in full.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Laureate Education, Inc.)
Guarantee. i. The Guarantor hereby (a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably irrevocably, guarantees to the Purchaser Administrative Agent, for the ratable benefit of the Lenders and its their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Borrower Obligations.
ii. (b) Anything herein or in any of the other Agreements Loan Document to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder and under the other Agreements Loan Documents shall in no event exceed the amount which can be guaranteed by the such Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting debtors (after giving effect to the rights right of creditors generallycontribution established in Section 2.2).
iii. The (c) Each Guarantor agrees that the Borrower Obligations may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser Administrative Agent or any Lender hereunder.
iv. (d) The guarantee contained in this Section 2 shall remain in full force and effect until all the Borrower Obligations and the obligations of the each Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full, no Letter of Credit shall be outstanding and the Commitments shall be terminated, notwithstanding that from time to time 268 7. during the term of the Credit Agreement the Borrower may be free from any Borrower Obligations.
v. (e) No payment made by the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person or received or collected by the Purchaser Administrative Agent or any Lender from the CompanyBorrower, any of the Guarantor Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Borrower Obligations or any payment received or collected from the such Guarantor in respect of the Borrower Obligations), remain liable for the Borrower Obligations up to the maximum liability of the such Guarantor hereunder until the Borrower Obligations are paid in full, no Letter of Credit shall be outstanding and the Commitments are terminated.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Agreements.
Appears in 1 contract
Guarantee. i. The Guarantor hereby (a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably irrevocably, guarantees to the Purchaser Administrative Agent, for the ratable benefit of the Secured Parties and its their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company each Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Obligationsits Borrower Obligations (other than, with respect to any Guarantor, any Excluded Swap Obligations of such Guarantor).
ii. (b) Anything herein or in any of the other Agreements Loan Document to the contrary notwithstanding, the maximum liability of the each Guarantor hereunder and under the other Agreements Loan Documents with respect to the Guarantor Obligations of such Guarantor shall in no event exceed the amount which can be guaranteed by the such Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting debtors (after giving effect to the rights right of creditors generallycontribution established in Section 2.2).
iii. The (c) Each Guarantor agrees that the Obligations Borrower Obligations, whether in respect of the Borrowers collectively or any individual Borrower, may at any time and from time to time exceed the amount of the liability of the such Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchaser Administrative Agent or any Lender hereunder.
iv. (d) The guarantee contained in this Section 2 shall remain in full force and effect until all the Borrower Obligations shall have been satisfied by Payment In Full and the obligations of the each Guarantor under the guarantee contained in this Section 2 (other than contingent indemnification obligations that have not yet been asserted) shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the Credit Agreement the Borrowers, or any individual Borrower, may be free from any Borrower Obligations.
v. (e) No payment made by any Borrower, any of the CompanyGuarantors, the Guarantor any other guarantor or any other Person or received or collected by the Purchaser Administrative Agent or any Lender from any of the CompanyBorrowers or the Guarantors, the Guarantor any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Borrower Obligations (other than Payment in Full of the Borrower Obligations) shall be deemed to modify, reduce, release or otherwise affect the liability of the any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the such Guarantor in respect of the Borrower Obligations or any payment received or collected from the such Guarantor in respect of the Borrower Obligations), remain liable for the Borrower Obligations up to the maximum liability of the such Guarantor hereunder until the Obligations are paid Payment in full.
vi. Notwithstanding anything to the contrary in this Agreement, with respect to any defaulted non-monetary Obligations the specific performance of which by the Guarantor is not reasonably possible (e.g. the issuance Full of the Company’s Common Stock)Borrower Obligations, no Letter of Credit shall be outstanding and the Guarantor shall only be liable for making the Purchaser whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the AgreementsCommitments are terminated.
Appears in 1 contract
Sources: Credit Agreement (Colony NorthStar Credit Real Estate, Inc.)