Guaranty by Guarantor. (a) From and after the date hereof, Guarantor hereby unconditionally guarantees the due and punctual payment of the Capital Contributions by the Member in accordance with the terms of the LLC Agreement; provided, however, that Guarantor shall not be liable to make any payment until five (5) Business Days (as defined in the LLC Agreement) following receipt by Guarantor of written notice from the Payee that a payment of an amount is due thereunder. Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the LLC Agreement, any change in or amendment thereto, the absence of any action to enforce the same, any waiver or consent by the Payee with respect to any provision thereof, the recovery of any judgment against the Member or any action to enforce the same, or any other circumstances which may otherwise constitute a legal or equitable discharge or defense of a guarantor; provided, however, that nothing contained herein shall be construed to be a waiver by Guarantor of demand of payment or notice to Guarantor with respect to the LLC Agreement or the Capital Contributions. Guarantor covenants that its obligations under this Section 1(a) will not be discharged except by payment in full of the Capital Contributions owing by the Member to the Payee in accordance with the terms of the LLC Agreement. (b) Guarantor shall make available to the Member such personnel as may be reasonably necessary for the Member to accomplish its duties as "manager" under and in accordance with the LLC Agreement. (c) Guarantor hereby guarantees the performance of all of the obligations of Candlewood Hotel Company, L.L.C., a Delaware limited liability company, under each of the Franchise Agreements. (d) Guarantor covenants and agrees to execute and deliver non-competition agreements with each Hotel Owner as contemplated by Section 3.3(d) of the LLC Agreement; provided, however, that Guarantor's obligation to execute and deliver any such agreement shall be subject to Guarantor and the Board reaching mutual agreement on the radius, the duration, the brands of hotel covered and any other term of such agreement. (e) Guarantor covenants and agrees that it will provide such payment, performance and completion guaranties and environmental indemnities, all in form and substance reasonably satisfactory to Candlewood, as are reasonably required by any Construction Lender in connection with any Construction Loan. (f) Guarantor shall be subrogated to all rights of the Payee in respect of any amounts paid by Guarantor pursuant to the provisions of this Guaranty. Notwithstanding the immediately preceding sentence, Guarantor hereby covenants and agrees that (a) it will not enforce or otherwise exercise any rights of reimbursement, subrogation, offset, contribution or other similar rights or claims with respect to the obligations and indemnification provided for herein against the Member prior to the payment in full of the Capital Contributions and the full and indefeasible payment and performance of Payee's obligations under the Loan Agreement and (b) it hereby waives all rights of reimbursement, subrogation, offset, contribution and all other similar rights and claims against the Member arising whether by contract or operation of law out of or in connection with any payment made under this Agreement prior to the full payment and performance of the Loan Obligations and within one year after the full payment and performance of Payee's obligations under the Loan Agreement or such lesser time if such payments can no longer be voided by the bankruptcy of Guarantor. (g) This Guaranty shall continue to be effective or reinstated, as the case may be, if at any time any amount owed to the Payee by the Member under the LLC Agreement is rescinded or must otherwise be returned by the Payee upon the insolvency, bankruptcy or reorganization by Guarantor, the Member or otherwise, all as though such payment had not been made.
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Sources: Guaranty (Candlewood Hotel Co Inc)
Guaranty by Guarantor. (a) From and after the date hereof, Guarantor hereby unconditionally guarantees unconditionally, absolutely and irrevocably guarantees, as a primary obligor and not merely as a surety, to Purchaser the due and punctual payment performance by Seller of Seller’s indemnification obligations arising under or pursuant to Article IX of this Agreement (the Capital Contributions by the Member in accordance with the terms of the LLC Agreement; provided, however, that Guarantor “Seller Liabilities”). Purchaser shall not be liable required to make any payment until five (5) Business Days (as defined in the LLC Agreement) following receipt by Guarantor of written notice from the Payee that a payment of an amount is due thereunder. Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the LLC Agreement, any change in or amendment thereto, the absence of any action seek to enforce the same, any waiver or consent by the Payee with respect resort to any provision thereof, the recovery remedies against Seller on account of any judgment against the Member or any action to enforce the same, or any other circumstances which may otherwise constitute a legal or equitable discharge or defense of a guarantor; provided, however, that nothing contained herein shall be construed to be a waiver by Guarantor of demand of payment or notice to Guarantor with respect to the LLC Agreement or the Capital ContributionsSeller Liabilities. Guarantor covenants that its Guarantor’s obligations under this Section 1(a11.1 shall be a guaranty of payment and not of collection only. The guarantee pursuant to this Section 11.1 shall remain in full force and effect without regard to, and the effectiveness thereof shall in no way be impaired, affected, reduced or released by reason of: (i) will not any amendment, modification, addition or supplement of any part of this Agreement, (ii) any exercise or non-exercise by Purchaser of any right or privilege under this Agreement, or (iii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets of Seller or the marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings or any other inability to pay or perform affecting Seller or any of its assets, or any allegation concerning, or contest of the legality or validity of, Seller’s indemnification obligations under this Agreement. Guarantor unconditionally waives: (i) any demand or protest as the same pertains to Seller, (ii) any right to require Purchaser to proceed against Seller or to exhaust any security held by Purchaser or to pursue any other remedy (other than draws on the Letter of Credit), (iii) any defense based upon an election of remedies by Purchaser, and (iv) any duty of Purchaser to advise Guarantor of any information known to Purchaser regarding Seller. The obligations of Guarantor under this Section 11.1 shall be discharged except automatically reinstated if and to the extent that for any reason any payment by or on behalf of Seller in respect of the Seller Liabilities is rescinded or must be otherwise restored by Purchaser, whether as a result of any proceedings in bankruptcy or reorganization or otherwise. Guarantor agrees that until the indefeasible payment and satisfaction in full of all Seller Liabilities, it shall not exercise any right or remedy arising by reason of any performance by it of its guaranty contained herein, whether by subrogation or otherwise, against Seller. Guarantor’s obligations under this Section 11.1 shall continue in full force and effect until such time as Seller’s obligations under Article IX of this Agreement have been fully performed. Notwithstanding any other provision of this Agreement, Purchaser shall not request payment from Guarantor under this Section 11.1, until the Capital Contributions owing by the Member to the Payee in accordance with the terms Letter of the LLC AgreementCredit has been depleted or otherwise terminated.
(b) Guarantor shall make available hereby represents (i) that the execution and delivery of this Agreement and the performance by Guarantor of its obligations hereunder do not violate any law applicable to Guarantor, conflict with any material agreement by which it is bound or require the Member such personnel as may consent or approval of any Governmental Authority or any other Person except for any violation, conflict or default that would not reasonably be reasonably necessary for expected to have a material adverse effect on Guarantor, (ii) that, assuming the Member to accomplish its duties as "manager" under due authorization, execution and delivery by Purchaser, this Agreement constitutes the valid and binding agreement of Guarantor enforceable against Guarantor in accordance with its terms, subject to the LLC Agreement.
effect of any applicable bankruptcy, moratorium, insolvency, reorganization or other similar law affecting the enforceability of creditors’ rights generally and to the effect of general principles of equity which may limit the availability of remedies (cwhether in a proceeding at law or in equity), (iii) that Guarantor hereby guarantees is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (iv) that the execution and delivery of this Agreement and the performance of its obligations hereunder are within its powers and have been duly authorized by all necessary action and do not contravene the terms of the obligations of Candlewood Hotel Company, L.L.C., a Delaware limited liability company, under each of the Franchise Agreementsits organizational or charter documents.
(d) Guarantor covenants and agrees to execute and deliver non-competition agreements with each Hotel Owner as contemplated by Section 3.3(d) of the LLC Agreement; provided, however, that Guarantor's obligation to execute and deliver any such agreement shall be subject to Guarantor and the Board reaching mutual agreement on the radius, the duration, the brands of hotel covered and any other term of such agreement.
(e) Guarantor covenants and agrees that it will provide such payment, performance and completion guaranties and environmental indemnities, all in form and substance reasonably satisfactory to Candlewood, as are reasonably required by any Construction Lender in connection with any Construction Loan.
(f) Guarantor shall be subrogated to all rights of the Payee in respect of any amounts paid by Guarantor pursuant to the provisions of this Guaranty. Notwithstanding the immediately preceding sentence, Guarantor hereby covenants and agrees that (a) it will not enforce or otherwise exercise any rights of reimbursement, subrogation, offset, contribution or other similar rights or claims with respect to the obligations and indemnification provided for herein against the Member prior to the payment in full of the Capital Contributions and the full and indefeasible payment and performance of Payee's obligations under the Loan Agreement and (b) it hereby waives all rights of reimbursement, subrogation, offset, contribution and all other similar rights and claims against the Member arising whether by contract or operation of law out of or in connection with any payment made under this Agreement prior to the full payment and performance of the Loan Obligations and within one year after the full payment and performance of Payee's obligations under the Loan Agreement or such lesser time if such payments can no longer be voided by the bankruptcy of Guarantor.
(g) This Guaranty shall continue to be effective or reinstated, as the case may be, if at any time any amount owed to the Payee by the Member under the LLC Agreement is rescinded or must otherwise be returned by the Payee upon the insolvency, bankruptcy or reorganization by Guarantor, the Member or otherwise, all as though such payment had not been made.
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