Guaranty of Performance. Subject to the limitations set forth below, the Guarantor does hereby unconditionally guarantee the payment and performance of all covenants and obligations of Newco under this Agreement including, but not limited to, the obligation to fund the Per Share Merger Consideration pursuant to Section 2.01 hereof and to pay the termination fee contemplated by Section 7.02 hereof, up to a total of $34.65 million (the "Guaranty"). The obligation of Guarantor under the Guaranty is primary, absolute and unconditional, is a continuing guaranty, and shall remain in force at all times hereafter, until all of Newco's obligations hereunder have been satisfied in full. Guarantor hereby waives notice, presentment, demand, protest and notice of dishonor of any of the liabilities or obligations guaranteed hereby, and hereby waives any failure to promptly commence suit against any party or to give any notice to or make any claim or demand upon Newco. Guarantor further agrees that this Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment, or any part thereof, by Newco is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy or reorganization of Newco, or otherwise, all as though such payment had not been made. Guarantor agrees that sufficiently in advance of Closing it shall make such calls for capital contributions from its general and limited partners, and take such other actions necessary, to ensure that Guarantor has sufficient cash funds at Closing to fully fund its obligations under this Section 5.16. This Guaranty shall inure to the benefit of the Company and each shareholder entitled to receive the Per Share Merger Consideration on a pro rata basis. There shall be no duty or obligation upon the Company or its shareholders (i) to proceed against Newco, (ii) to initiate any proceeding or exhaust any remedy against Newco, or (iii) to give any notice to Newco or Guarantor, whatsoever, before bringing suit, or instituting proceedings of any kind against Newco or Guarantor. Until all of the obligations of Newco under this Agreement have been satisfied in full, Guarantor shall have no right or subrogation and hereby waives any right to enforce any remedy which Company or its shareholders now has or may hereafter have against Newco and any benefit of, and any right to participate in, any security now or hereafter held by Company or its shareholders. All rights and remedies under this Guaranty are cumulative and those granted hereunder are in addition to any rights and remedies available under law. From the date hereof until the Effective Time, Guarantor shall not take any action that would reasonably be expected to materially, adversely affect its ability to perform its obligations under this Section 5.16. Notwithstanding the foregoing provisions of this Section 5.16, Guarantor's obligation is limited to $1.65 million and will be deemed satisfied in full if Newco pays the termination fee under Section 7.02 or if the Merger is consummated and the Merger Consideration is paid pursuant Section 2.02.
Appears in 2 contracts
Sources: Merger Agreement (Capricorn Investors Iii L P), Merger Agreement (Tcby Enterprises Inc)
Guaranty of Performance. Subject to the limitations set forth below, the Guarantor does additionally hereby unconditionally guarantee and irrevocably guarantees to Administrative Agent and Lenders the payment and timely performance of all covenants and other obligations of Newco Borrower under this Agreement all of the Loan Documents, including, but not limited towithout limiting the generality of the foregoing:
(a) that the tenant improvement work required to be performed by the landlord under any and all leases, both existing and future, of space in the obligation to fund the Per Share Merger Consideration pursuant to Section 2.01 hereof and to pay the termination fee contemplated by Section 7.02 hereof, up to a total of $34.65 million Improvements (the "Guaranty"). The obligation of Guarantor under “TI Work”) will be constructed in accordance with such leases and the Guaranty is primaryLoan Agreement; and
(b) that the TI Work will be completed, absolute and unconditional, is a continuing guarantylien free, and shall remain in force at all times hereafterready for occupancy, until all of Newco's obligations hereunder have been satisfied in full. Guarantor hereby waives notice, presentment, demand, protest and notice of dishonor including delivery of any permits, certificates or governmental approvals required by law or the applicable lease, on or before the date required in such lease. If any of the liabilities or such obligations guaranteed herebyof Borrower are not complied with, in any respect whatsoever, and hereby waives any failure to promptly commence suit against any party or to give without the necessity of any notice from Administrative Agent or Lenders to or make any claim or demand upon Newco. Guarantor further agrees that this Guaranty shall continue to be effective or be reinstatedGuarantor, as the case may be, if at any time any payment, or any part thereof, by Newco is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy or reorganization of Newco, or otherwise, all as though such payment had not been made. Guarantor agrees that sufficiently in advance of Closing it shall make such calls for capital contributions from its general and limited partners, and take such other actions necessary, to ensure that Guarantor has sufficient cash funds at Closing to fully fund its obligations under this Section 5.16. This Guaranty shall inure to the benefit of the Company and each shareholder entitled to receive the Per Share Merger Consideration on a pro rata basis. There shall be no duty or obligation upon the Company or its shareholders (i) assume all responsibility for the completion of the TI Work and, at Guarantor’s own cost and expense, cause the TI Work to proceed against Newco, be fully completed in accordance with the leases of the Property and the Loan Documents; (ii) to initiate any proceeding or exhaust any remedy against Newco, or pay all bills in connection with the construction of the TI Work; and (iii) indemnify and hold Administrative Agent and Lenders harmless from any and all loss, cost, liability or expense that Administrative Agent and Lenders may suffer by reason of any such non-compliance. So long as all of such obligations are being performed by Borrower or Guarantor and no Default exists, Lenders will make the Loan proceeds, if any, available under and subject to give any the terms of the Loan Agreement. If after the occurrence of a Default, and without limiting the rights and remedies of Administrative Agent and Lenders, Administrative Agent, in its sole and absolute discretion, is dissatisfied with the progress of construction by Borrower and/or Guarantor, Administrative Agent may, at its option, without notice to Newco Guarantor or Guarantoranyone else, whatsoever, complete the TI Work either before bringing suit, or instituting after commencement of foreclosure proceedings or before or after exercise of any kind against Newco or Guarantor. Until all of the obligations of Newco under this Agreement have been satisfied in full, Guarantor shall have no other right or subrogation remedy of Administrative Agent against Borrower or Guarantor and expend such sums as Administrative Agent, in its sole and absolute discretion, deems necessary or advisable to complete the TI Work, and Guarantor hereby waives any right to enforce contest any remedy which Company or its shareholders now has or may hereafter have against Newco such expenditures by Administrative Agent and/or Lenders. The amount of any and any benefit of, and any right to participate in, any security now or hereafter held all expenditures made by Company or its shareholders. All rights and remedies under this Guaranty are cumulative and those granted hereunder are in addition to any rights and remedies available under law. From Administrative Agent for the foregoing purposes shall bear interest from the date hereof made until repaid to Administrative Agent, at a rate per annum equal to the Effective Timeinterest rate provided for in the Note and, together with such interest, shall be due and payable by Guarantor to Administrative Agent upon demand. Neither Lenders nor Administrative Agent have nor shall not they ever have any obligation to complete the TI Work or take any action that would reasonably be expected to materially, adversely affect its ability to perform its such action. The obligations and liability of Guarantor under this Section 5.16. Notwithstanding 2 shall not be limited or restricted by the foregoing provisions existence of this Section 5.16, Guarantor's obligation is limited to $1.65 million and will be deemed satisfied in full if Newco pays (or any terms of) the termination fee guaranty of payment under Section 7.02 or if the Merger is consummated and the Merger Consideration is paid pursuant Section 2.021.
Appears in 2 contracts
Sources: Loan Agreement (Acadia Realty Trust), Loan Agreement (Acadia Realty Trust)
Guaranty of Performance. Subject to Section 11.11, each Guarantor additionally unconditionally guarantees to Agent for the limitations set forth belowratable of Agent and Lenders, and their respective successors, endorsees, transferees and assigns, the Guarantor does hereby unconditionally guarantee the payment and timely performance of all covenants and other obligations of Newco Borrower under the Loan Documents, including, without limiting the generality of the foregoing, that:
(a) the Improvements will be constructed upon the Land in accordance with this Agreement includingand the Plans; and
(b) the Improvements will be completed and ready for occupancy, but including delivery of any certificates required by law or this Agreement, on or before the date required in this Agreement. In the event the foregoing conditions are not limited tocomplied with in any respect whatsoever, Guarantors agree to (i) assume all responsibility for the obligation completion of the Improvements and, at Guarantors' own cost and expense, to fund cause the Per Share Merger Consideration pursuant Improvements to Section 2.01 hereof be fully completed in accordance with the Plans and in accordance with this Agreement; (ii) pay all bills in connection with the construction of the Improvements; and (iii) indemnify and hold Agent and Lenders harmless from any and all loss, cost, liability or expense Agent or Lenders may suffer by reason of any such event excepting with respect to pay willful misconduct or gross negligence of Agent or Lenders. Agent shall accept performance by Guarantors of Borrower's obligations under the termination fee contemplated Loan Documents, and so long as all of said obligations are being performed by Section 7.02 hereofBorrower or Guarantors, up Agent will make the Construction Loan proceeds available under the terms of this Agreement. If, after the occurrence of a Default, Agent, in its sole discretion, is dissatisfied with the progress of construction by Borrower and/or Guarantors, Agent may, at its option, and on behalf of Lenders, after first having given notice to Guarantors at the address set forth below in the manner prescribed herein for giving notice, complete the Improvements either before or after commencement of foreclosure proceedings or before or after any other remedy of Agent or Lenders against Borrower or Guarantors, with such changes or modifications in the Plans which Agent reasonably deems necessary and expend such sums as Agent, in its discretion, reasonably deems necessary and proper in order to so complete the Improvements, and Guarantors hereby waive any right to contest any such reasonably necessary expenditures. The amount of any and all expenditures made by Agent for the foregoing purposes shall be due and payable to Lenders upon demand and accrue interest at a total of $34.65 million rate two percent (2%) per annum above the "Guaranty"rate then applicable under the Construction Loan Note (or that would be applicable under the Construction Loan Note if it were still outstanding). Neither Borrower nor any Guarantor shall be liable to Lenders for the cost of completing the Improvements to the extent the aggregate cost of completing the Improvements exceeds the Construction Loan Commitment. The obligation obligations and liability of Guarantor under the Guaranty is primary, absolute and unconditional, is a continuing guaranty, and shall remain in force at all times hereafter, until all of Newco's obligations hereunder have been satisfied in full. Guarantor hereby waives notice, presentment, demand, protest and notice of dishonor of any of the liabilities or obligations guaranteed hereby, and hereby waives any failure to promptly commence suit against any party or to give any notice to or make any claim or demand upon Newco. Guarantor further agrees that this Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment, or any part thereof, by Newco is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy or reorganization of Newco, or otherwise, all as though such payment had not been made. Guarantor agrees that sufficiently in advance of Closing it shall make such calls for capital contributions from its general and limited partners, and take such other actions necessary, to ensure that Guarantor has sufficient cash funds at Closing to fully fund its obligations Guarantors under this Section 5.1611.2 shall not be limited or restricted by the existence of (or any limitation on) the guaranty of payment under Section 11.1. This Guaranty shall inure (All Obligations of Borrower to the benefit of the Company and each shareholder entitled to receive the Per Share Merger Consideration on a pro rata basis. There shall be no duty Agent or obligation upon the Company or its shareholders (i) to proceed against Newcoany Lender, (ii) to initiate any proceeding or exhaust any remedy against Newco, or (iii) to give any notice to Newco or Guarantor, whatsoever, before bringing suit, or instituting proceedings of any kind against Newco or Guarantor. Until including all of the obligations of Newco under this Agreement have been satisfied Obligations specified in full, Guarantor shall have no right Section 11.1 or subrogation and hereby waives any right to enforce any remedy which Company or its shareholders now has or may hereafter have against Newco and any benefit of, and any right to participate in, any security now or hereafter held by Company or its shareholders. All rights and remedies under this Guaranty are cumulative and those granted hereunder are in addition to any rights and remedies available under law. From the date hereof until the Effective Time, Guarantor shall not take any action that would reasonably be expected to materially, adversely affect its ability to perform its obligations under this Section 5.16. Notwithstanding 11.2, shall be hereinafter collectively referred to as the foregoing provisions of this Section 5.16, Guarantor's obligation is limited to $1.65 million and will be deemed satisfied in full if Newco pays the termination fee under Section 7.02 or if the Merger is consummated and the Merger Consideration is paid pursuant Section 2.02"Guaranteed Obligations."
Appears in 1 contract
Sources: Loan Agreement (Medcath Inc)
Guaranty of Performance. Subject to the limitations set forth below, the [NOTE: create separate document in VA and other confessed judgment states for performance guaranty] Guarantor does hereby unconditionally guarantee the payment and performance of all covenants and obligations of Newco under this Agreement includingirrevocably guarantees to Administrative Agent, but not limited to, the obligation to fund the Per Share Merger Consideration pursuant to Section 2.01 hereof and to pay the termination fee contemplated by Section 7.02 hereof, up to a total of $34.65 million (the "Guaranty"). The obligation of Guarantor under the Guaranty is primary, absolute and unconditional, is a continuing guaranty, and shall remain in force at all times hereafter, until all of Newco's obligations hereunder have been satisfied in full. Guarantor hereby waives notice, presentment, demand, protest and notice of dishonor of any of the liabilities or obligations guaranteed hereby, and hereby waives any failure to promptly commence suit against any party or to give any notice to or make any claim or demand upon Newco. Guarantor further agrees that this Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment, or any part thereof, by Newco is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy or reorganization of Newco, or otherwise, all as though such payment had not been made. Guarantor agrees that sufficiently in advance of Closing it shall make such calls for capital contributions from its general and limited partners, and take such other actions necessary, to ensure that Guarantor has sufficient cash funds at Closing to fully fund its obligations under this Section 5.16. This Guaranty shall inure to the benefit of itself and the Company and each shareholder entitled to receive the Per Share Merger Consideration on a pro rata basis. There shall be no duty or obligation upon the Company or its shareholders Secured Parties:
(i) that the Improvements will be constructed in accordance with the Loan Agreement and the Plans and Specifications at a total project cost not to proceed against Newco, exceed that set forth in the Budget;
(ii) to initiate that the Improvements will be completed and ready for occupancy, including delivery of any proceeding certificates required by law or exhaust any remedy against Newcothe Loan Agreement, on or before the Completion Date required in the Loan Agreement;
(iii) that it will ensure the performance, completion and payment of the construction of the Improvements (the “Construction”) and the payment of all costs of said Construction (including any and all cost overruns) and all other costs associated with the Improvements (including, without limitation, the costs of any architects’ and engineers’ fees), including any sums expended in excess of the amount of indebtedness incurred by Borrower under the Loan Agreement or with respect to give the Loan, whether or not the Construction is actually completed;
(iv) that if Administrative Agent exercises its right under the Loan Documents to take possession of the Property and complete the Construction, it will reimburse Administrative Agent for all costs and expenses incurred by Administrative Agent in excess of the applicable approved budget line items therefor (if any) in so taking possession of the Property and completing the Construction pursuant to the Plans and Specifications;
(v) that if any mechanics’ or materialmen’s liens should be filed, or should attach, with respect to the Property by reason of the Construction, it will cause the immediate removal of such liens, or post security against the consequences of their possible foreclosure and procure an endorsement(s) to Administrative Agent’s Title Insurance Policy insuring Administrative Agent, for the benefit of itself and the Secured Parties, against the consequences of the foreclosure or enforcement of such lien(s);
(vi) that if any chattel mortgages, conditional vendor’s liens or any liens, encumbrances or security interests whatsoever should be filed, or should attach, with respect to the personal property, fixtures, attachments and equipment delivered upon the Property and owned by Borrower, or attached to or used in connection with the Construction of the Improvements, it will cause the immediate removal of such lien(s) or post security against the consequences of their possible foreclosure and procure an endorsement(s) to Administrative Agent’s Title Insurance Policy insuring Administrative Agent, for the benefit of itself and the Secured Parties, against the consequences of the foreclosure or enforcement of such lien(s);
(vii) that it will cause the payment of the premiums for all policies of insurance required to be furnished by Borrower pursuant to the Loan Agreement during the Construction if such premiums are not paid by Borrower; and
(viii) the due and punctual performance and observance by Borrower of all other terms, covenants, and conditions of the Loan Agreement or changes in the terms, covenants, or conditions thereof now or hereafter made, but only to the extent such terms, covenants and conditions pertain to the lien free construction of the Improvements in accordance with the terms and conditions set forth in the Loan Agreement. If any of such obligations of Borrower are not complied with, in any respect whatsoever, and without the necessity of any notice from Administrative Agent to Newco Guarantor, Guarantor agrees to (A) assume all responsibility for the completion of the Improvements and, at Guarantor's own cost and expense, cause the Improvements to be fully completed in accordance with the Plans and Specifications and the Loan Documents; (B) pay all bills in connection with the Construction of the Improvements; and (C) indemnify and hold Administrative Agent and each of Lenders harmless from any and all loss, cost, liability or expense that Administrative Agent or any Lender may suffer by any reason of any such non-compliance. So long as: (X) all of such obligations are being performed by Guarantor, (Y) Guarantor shall timely cure any Default under the Loan Documents susceptible of being cured by Guarantor, and (Z) no default exists hereunder, Administrative Agent will make the Loan proceeds, insurance proceeds, if any, condemnation proceeds, if any, and surety bond proceeds, if any, available under and subject to the terms of the Loan Agreement. If after the occurrence of a default hereunder, and without limiting Administrative Agent’s or any Lender’s rights and remedies, Administrative Agent, in its sole discretion, is dissatisfied with the progress of construction by Borrower and/or Guarantor, Administrative Agent, on behalf of the Lenders, may, at its option or at the direction of the Required Lenders, complete the Improvements either before or after commencement of foreclosure proceedings or before or after exercise of any other right or remedy of Administrative Agent or any Lender against Borrower or Guarantor, whatsoeverwith such changes or modifications in the Plans and Specifications that Administrative Agent deems necessary, before bringing suitand expend such sums as Administrative Agent, in its discretion, deems necessary or instituting proceedings of any kind against Newco or Guarantor. Until all of advisable to complete the obligations of Newco under this Agreement have been satisfied in fullImprovements, and Guarantor shall have no right or subrogation and hereby waives any right to enforce contest any remedy which Company or its shareholders now has or may hereafter have against Newco such necessary expenditures. The amount of any and any benefit of, and any right to participate in, any security now or hereafter held all expenditures made by Company or its shareholders. All rights and remedies under this Guaranty are cumulative and those granted hereunder are in addition to any rights and remedies available under law. From Administrative Agent for the foregoing purposes shall bear interest from the date hereof made until repaid to Administrative Agent, at a rate per annum equal to the Effective Timeinterest rate provided for in the Loan Agreement and, together with such interest, shall be due and payable by Guarantor to Administrative Agent upon demand. Administrative Agent does not have and shall never have any obligation to complete the Improvements or take any such action. Furthermore, Administrative Agent shall not take have any action that would reasonably be expected obligation to materiallyprotect or insure any collateral for the Loan, adversely affect nor shall Administrative Agent have any obligation to perfect its ability to perform its obligations under this Section 5.16. Notwithstanding security interest in any collateral for the foregoing provisions of this Section 5.16, Guarantor's obligation is limited to $1.65 million and will be deemed satisfied in full if Newco pays the termination fee under Section 7.02 or if the Merger is consummated and the Merger Consideration is paid pursuant Section 2.02Loan.
Appears in 1 contract
Sources: Guaranty Agreement
Guaranty of Performance. Subject THE TERMS, DEFINITIONS, CONDITIONS AND INFORMATION SET FORTH IN THE “MERCHANT AGREEMENT”, INCLUDING THE “TERMS AND CONDITIONS”, ARE HEREBY INCORPORATED IN AND MADE A PART OF THIS SECURITY AGREEMENT AND GUARANTY. CAPITALIZED TERMS NOT DEFINED IN THIS SECURITY AGREEMENT AND GUARANTY, SHALL HAVE THE MEANING SET FORTH IN THE MERCHANT AGREEMENT, INCLUDING THE TERMS AND CONDITIONS. RCNY As an additional inducement for RCNY to the limitations set forth belowenter into this Agreement, the undersigned Guarantor(s) hereby provides RCNY with this Guaranty. Guarantor(s) will not be personally liable for any amount due under this Agreement unless Merchant commits an Event of Default pursuant to Paragraph 3.1 of this Agreement. Each Guarantor does hereby unconditionally shall be jointly and severally liable for all amounts owed to RCNY in the Event of Default. Guarantor(s) guarantee the payment Merchant’s good faith, truthfulness and performance of all of the representations, warranties, covenants made by Merchant in this Agreement as each may be renewed, amended, extended or otherwise modified (the “Guaranteed Obligations”).Guarantor’s obligations are due at the time of any breach by Merchant of any representation, warranty, or covenant made by Merchant in the Agreement. Guarantor Waivers. In the event of a breach of the above, RCNY may seek recovery from Guarantors for all of RCNY’s losses and obligations damages by enforcement of Newco RCNY’s rights under this Agreement includingwithout first seeking to obtain payment from Merchant, but not limited toany other guarantor, the obligation to fund the Per Share Merger Consideration or any Collateral or Additional Collateral RCNY may hold pursuant to Section 2.01 hereof and this Agreement or any other guaranty. RCNY does not have to pay the termination fee contemplated by Section 7.02 hereof, up to a total of $34.65 million (the "Guaranty"). The obligation of notify Guarantor under the Guaranty is primary, absolute and unconditional, is a continuing guaranty, and shall remain in force at all times hereafter, until all of Newco's obligations hereunder have been satisfied in full. Guarantor hereby waives notice, presentment, demand, protest and notice of dishonor of any of the liabilities or obligations guaranteed hereby, following events and hereby waives any failure to promptly commence suit against any party or to give any notice to or make any claim or demand upon Newco. Guarantor further agrees that this Guaranty shall continue to will not be effective or be reinstated, as the case may be, if at any time any payment, or any part thereof, by Newco is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy or reorganization of Newco, or otherwise, all as though such payment had not been made. Guarantor agrees that sufficiently in advance of Closing it shall make such calls for capital contributions released from its general and limited partners, and take such other actions necessary, to ensure that Guarantor has sufficient cash funds at Closing to fully fund its obligations under this Section 5.16. This Guaranty shall inure to the benefit of the Company and each shareholder entitled to receive the Per Share Merger Consideration on a pro rata basis. There shall be no duty or obligation upon the Company or its shareholders Agreement if it is not notified of: (i) Merchant’s failure to proceed against Newco, pay timely any amount required under the Merchant Agreement; (ii) to initiate any proceeding adverse change in Merchant’s financial condition or exhaust any remedy against Newco, or business; (iii) to give any notice to Newco sale or Guarantor, whatsoever, before bringing suit, or instituting proceedings other disposition of any kind against Newco collateral securing the Guaranteed Obligations or Guarantorany other guaranty of the Guaranteed Obligations; (iv) RCNY’s acceptance of this Agreement; and (v) any renewal, extension or other modification of the Merchant Agreement or Merchant’s other obligations to RCNY. In addition, RCNY may take any of the following actions without releasing Guarantor from any of its obligations under this Agreement: (i) renew, extend or otherwise modify the Merchant Agreement or Merchant’s other obligations to RCNY; (ii) release Merchant from its obligations to RCNY; (iii) sell, release, impair, waive or otherwise fail to realize upon any collateral securing the Guaranteed Obligations or any other guaranty of the Guaranteed Obligations; and (iv) foreclose on any collateral securing the Guaranteed Obligations or any other guaranty of the Guaranteed Obligations in a manner that impairs or precludes the right of Guarantor to obtain reimbursement for payment under this Agreement. Until all of the Purchased Amount and Merchant’s other obligations of Newco to RCNY under the Merchant Agreement and this Agreement have been satisfied are paid in full, Guarantor shall have no right not seek reimbursement from Merchant or subrogation any other guarantor for any amounts paid by it under this Agreement. Guarantor permanently waives and hereby waives shall not seek to exercise any right to enforce any remedy which Company or its shareholders now has or of the following rights that it may hereafter have against Newco and any benefit of, and any right to participate inMerchant, any security now other guarantor, or hereafter held any collateral provided by Company Merchant or its shareholders. All rights and remedies any other guarantor, for any amounts paid by it, or acts performed by it, under this Guaranty are cumulative and those granted hereunder are in addition Agreement: (i) subrogation; (ii) reimbursement; (iii) performance; (iv) indemnification; or (v) contribution. In the event that RCNY must return any amount paid by Merchant or any other guarantor of the Guaranteed Obligations because that person has become subject to a proceeding under the United States Bankruptcy Code or any rights and remedies available under similar law. From the date hereof until the Effective Time, Guarantor shall not take any action that would reasonably be expected to materially, adversely affect its ability to perform its Guarantor’s obligations under this Section 5.16Agreement shall include that amount. Notwithstanding Guarantor Acknowledgement. Guarantor acknowledges that: (i) He/She is bound by the foregoing Class Action Waiver provision in the Merchant Agreement Terms and Conditions; (ii) He/She understands the seriousness of the provisions of this Section 5.16, Guarantor's obligation is limited Agreement; (ii) He/She has had a full opportunity to $1.65 million consult with counsel of his/her choice; and will be deemed satisfied in full if Newco pays the termination fee under Section 7.02 (iv) He/She has consulted with counsel of its choice or if the Merger is consummated and the Merger Consideration is paid pursuant Section 2.02.has decided not to avail himself/herself of that opportunity. By: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ SSN# Driver’s License Number By: SSN# Driver’s License Number By: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ SSN# Driver’s License Number By: SSN# Driver’s License Number
Appears in 1 contract
Sources: Purchase and Sale of Future Receivables (PARTS iD, Inc.)
Guaranty of Performance. Subject Cherokee hereby guarantees to Buyer, its successors and assigns the limitations set forth belowprompt and complete payment or performance of any and all liabilities or obligations of Seller under this Agreement (the “Cherokee Guaranty”). The Cherokee Guaranty is an absolute, unconditional, irrevocable, unlimited guaranty of payment and performance, irrespective of the Guarantor does hereby unconditionally guarantee the validity, regularity or enforceability of any obligation of Seller and irrespective of any circumstances which might otherwise constitute a legal or equitable discharge or defense of Cherokee. This Cherokee Guaranty is a continuing guaranty and covers all liabilities and obligations of Seller to Buyer. Any and every liability or obligation of Seller to Buyer shall be exclusively presumed to have been created, contracted or incurred in reliance upon this Cherokee Guaranty. This Cherokee Guaranty is a primary obligation of Cherokee and is a guaranty of payment and not merely of collection. In no event may this guaranty be assigned by Cherokee, whether by operation of law or otherwise, unless Cherokee or its successor continues to be obligated hereunder. Cherokee represents and warrants that: (a) Cherokee’s execution and performance of all covenants and obligations of Newco under this Agreement including, but not limited to, the obligation to fund the Per Share Merger Consideration pursuant to Section 2.01 hereof and to pay the termination fee contemplated by Section 7.02 hereof, up to a total of $34.65 million (the "Guaranty"). The obligation of Guarantor under the Guaranty is primary, absolute and unconditional, is a continuing guaranty, and shall remain in force at all times hereafter, until all of Newco's obligations hereunder have been satisfied in full. Guarantor hereby waives notice, presentment, demand, protest and notice of dishonor of any of the liabilities or obligations guaranteed hereby, and hereby waives any failure to promptly commence suit against any party or to give any notice to or make any claim or demand upon Newco. Guarantor further agrees that this Cherokee Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment, or any part thereof, by Newco is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy or reorganization of Newco, or otherwise, all as though such payment had not been made. Guarantor agrees that sufficiently in advance of Closing it shall make such calls for capital contributions from its general and limited partners, and take such other actions necessary, to ensure that Guarantor has sufficient cash funds at Closing to fully fund its obligations under this Section 5.16. This Guaranty shall inure to the benefit of the Company and each shareholder entitled to receive the Per Share Merger Consideration on a pro rata basis. There shall be no duty or obligation upon the Company or its shareholders (i) violate or result in a default or breach (immediately or with the passage of time) under any contract, agreement or instrument to proceed against Newcowhich Cherokee is a party or by which Cherokee is bound, (ii) to initiate violate or result in a default or breach under any proceeding order, decree, award, injunction, judgment, law, regulation or exhaust rule, (iii) cause or result in the imposition or creation of any remedy against Newcolien upon any property of Cherokee, or (iiiiv) violate or result in a breach of the articles of incorporation or by-laws of Cherokee; (b) Cherokee has the full power and capacity to give any notice to Newco enter into and perform under the Cherokee Guaranty, which has been authorized by all necessary corporate action on behalf of Cherokee; (c) no consent, license or Guarantor, whatsoever, before bringing suitapproval of, or instituting proceedings filing or registration with, any Governmental Authority is necessary for the execution and performance hereof by Cherokee; (d) the Cherokee Guaranty constitutes the valid and binding obligation of any kind against Newco or Guarantor. Until all Cherokee enforceable in accordance with its terms; and (e) the Cherokee Guaranty promotes and furthers the business and interests of Cherokee and the creation of the obligations of Newco under this Agreement have been satisfied hereunder will result in fulldirect financial benefit to Cherokee. Cherokee shall pay or reimburse Buyer on demand for all costs and expenses, Guarantor shall have no right including, without limitation, all court costs and reasonable legal fees and expenses incurred by Buyer at any time to enforce, protect, preserve or subrogation and hereby waives any right to enforce any remedy which Company or defend its shareholders now has or may hereafter have against Newco and any benefit of, and any right to participate in, any security now or hereafter held by Company or its shareholders. All rights and remedies under this Guaranty are cumulative and those granted hereunder are in addition to any rights and remedies available under law. From the date hereof until the Effective Time, Guarantor shall not take any action that would reasonably be expected to materially, adversely affect its ability to perform its obligations under this Section 5.16. Notwithstanding the foregoing provisions of this Section 5.16, Guarantor's obligation is limited to $1.65 million and will be deemed satisfied in full if Newco pays the termination fee under Section 7.02 or if the Merger is consummated and the Merger Consideration is paid pursuant Section 2.02Cherokee Guaranty.
Appears in 1 contract
Guaranty of Performance. Subject to the limitations set forth below, the (a) Guarantor does additionally hereby unconditionally guarantee and irrevocably guarantees to Lender the payment and timely performance of all covenants and other obligations of Newco Borrower under this Agreement all of the Loan Documents, including, but not limited to, without limiting the obligation to fund the Per Share Merger Consideration pursuant to Section 2.01 hereof and to pay the termination fee contemplated by Section 7.02 hereof, up to a total of $34.65 million (the "Guaranty"). The obligation of Guarantor under the Guaranty is primary, absolute and unconditional, is a continuing guaranty, and shall remain in force at all times hereafter, until all of Newco's obligations hereunder have been satisfied in full. Guarantor hereby waives notice, presentment, demand, protest and notice of dishonor of any generality of the liabilities or obligations guaranteed herebyforegoing, that the Improvements will be constructed in accordance with the License Agreement and hereby waives any failure to promptly commence suit against any party or to give any notice to or make any claim or demand upon Newco. Guarantor further agrees that this Guaranty shall continue to be effective or be reinstatedwith the Plans, as the case same may behave been modified from time to time in accordance with the License Agreement, if at free and clear from all defects and liens and in compliance with applicable law.
(b) If any time of such obligations of Borrower are not complied with, in any paymentrespect whatsoever, or and without the necessity of any part thereofnotice from Lender to Guarantor, by Newco is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy or reorganization of Newco, or otherwise, all as though such payment had not been made. Guarantor agrees that sufficiently in advance of Closing it shall make such calls for capital contributions from its general and limited partners, and take such other actions necessary, to ensure that Guarantor has sufficient cash funds at Closing to fully fund its obligations under this Section 5.16. This Guaranty shall inure to the benefit of the Company and each shareholder entitled to receive the Per Share Merger Consideration on a pro rata basis. There shall be no duty or obligation upon the Company or its shareholders (i) assume all responsibility for the completion of the Improvements and, at Guarantor's own cost and expense, cause the Improvements to proceed against Newcobe fully completed in accordance with the Plans, the Loan Documents and applicable law; (ii) pay all bills in connection with the construction of the Improvements, including without limitation, all permitting fees, licensing fees, amounts payable under the general construction contract and all subcontracts, and amounts payable to initiate any proceeding or exhaust any remedy against Newcoall architects, or engineers and other consultants engaged in connection with the construction of the Improvements; (iii) cure any Default (as hereinafter defined) or Event of Default under any term, covenant or condition of the Mortgage or other Loan Documents, including if applicable, causing any liens and claims to give be removed and thereafter keeping the Improvements free and clear from all liens and claims that may be filed or made for performing work or labor thereon or furnishing materials therefor or both; and (iv) indemnify and hold Lender harmless from any and all loss, cost, liability or expense that Lender may suffer by any reason of any such non-compliance. So long as all of such obligations are being performed by Borrower or Guarantor and no Event of Default exists, Lender will make the Loan proceeds available under and subject to the terms of the Mortgage. If after the occurrence of a Default, and without limiting Lender's rights and remedies, Lender, in its sole discretion, is dissatisfied with the progress of construction by Borrower and/or Guarantor, Lender, at its option, upon at least ten (10) days prior notice to Newco Guarantor, may complete the Improvements either before or after commencement of foreclosure proceedings or before or after exercise of any other right or remedy of Lender against Borrower or Guarantor, whatsoeverwith such changes or modifications in the Plans that Lender deems necessary and expend such sums as Lender, before bringing suitin its reasonable discretion, deems necessary or instituting proceedings of any kind against Newco or Guarantor. Until all of advisable to complete the obligations of Newco under this Agreement have been satisfied in fullImprovements, and Guarantor shall have no right or subrogation and hereby waives any right to enforce contest any remedy which Company or its shareholders now has or may hereafter have against Newco such necessary expenditures. The amount of any and any benefit of, and any right to participate in, any security now or hereafter held all expenditures made by Company or its shareholders. All rights and remedies under this Guaranty are cumulative and those granted hereunder are in addition to any rights and remedies available under law. From Lender for the foregoing purposes shall bear interest from the date hereof made until repaid to Lender, at a rate per annum equal to the Effective Timeinterest rate provided for in the Note and, together with such interest, shall be due and payable by Guarantor to Lender within ten (10) days of written demand. Lender does not have and shall not never have any obligation to complete the Improvements or take any action that would reasonably be expected to materially, adversely affect its ability to perform its such action. The obligations and liability of Guarantor under this Section 5.16. Notwithstanding shall not be limited or restricted by the foregoing provisions existence of this Section 5.16, Guarantor's obligation is limited to $1.65 million and will be deemed satisfied in full if Newco pays (or any terms of) the termination fee under Section 7.02 or if the Merger is consummated and the Merger Consideration is paid pursuant Section 2.02Payment Guaranty described above.
Appears in 1 contract
Sources: Guaranty Agreement (Essex Hospitality Associates Iv Lp)
Guaranty of Performance. Subject (a) Echo hereby irrevocably and unconditionally guaranties (the “Guaranty”) to Seller, Holdings and Shareholder the limitations set forth belowfull and timely payment of any amounts payable and the prompt performance of all obligations of Purchaser under this Agreement (for purposes of this Section 11.16, the Guarantor does hereby unconditionally “Purchaser’s Obligations”) when and as the same shall become due hereunder. The Guaranty is a guarantee the of payment and performance and not of all covenants collection only. Each of the Seller, Holdings and obligations Shareholder acknowledges and agrees that Purchaser’s Obligations are subject to and shall be determined in accordance with the express terms and conditions of Newco under this Agreement including, but not limited to, the obligation to fund the Per Share Merger Consideration pursuant to Section 2.01 hereof and to pay the termination fee contemplated by Section 7.02 hereof, up to a total of $34.65 million (the "Guaranty")Agreement. The obligation liability of Guarantor Echo under the Guaranty is primary, absolute and unconditionalunconditional and the Guaranty shall be binding upon Echo and its successors and assigns, is a continuing guarantyshall not be subject to any counterclaim, setoff, deduction or defense based upon any claim Echo may have against Seller, Holdings or the Shareholder hereunder or otherwise, and shall remain in full force at all times hereafterand effect without regard to, until and shall not be released, discharged or in any way affected by, any circumstance or condition whatsoever which might otherwise constitute a legal or equitable discharge or defense of a guarantor; provided, that any claim under the Guaranty against Echo shall be subject to, and Echo shall have available to it in defense of any such claim, any and all of Newco's obligations Purchaser’s rights and defenses (including rights of set-off or deduction), whether arising hereunder have been satisfied or otherwise, in fullrespect of any such claim. Guarantor Echo agrees that the Guaranty may be enforced by the Shareholder without the necessity at any time of resorting to or exhausting any other remedy or without the necessity at any time of having recourse to this Agreement. Echo waives any right now or hereafter existing requiring the Shareholder, as a condition to proceeding against Echo, to proceed against Purchaser or any other person. The Guaranty shall survive the Closing.
(b) Echo hereby waives noticeand agrees that it shall not at any time insist upon, presentmentplead or in any manner whatever claim or take the benefit or advantage of, demandany appraisal, valuation, stay, extension, marshaling of assets or redemption laws, exemption, or any defense based upon suretyship or impairment of collateral, whether now or at any time hereafter in force, which may delay, prevent or otherwise affect the payment and performance by Echo of the Purchaser’s Obligations under, or the enforcement by the Shareholder of, the Guaranty. Echo hereby waives diligence, presentment and demand (whether for non-payment or protest and or of acceptance, maturity, extension of time, change in nature or form of the Purchaser’s Obligations, acceptance of further security, release of further security, composition or agreement arrived at as to the amount of, or the terms of, the Purchaser’s Obligations, notice of dishonor of adverse change in the Purchaser’s financial condition or any other fact which might increase the risk to Echo) with respect to any of the liabilities Purchaser’s Obligations or obligations guaranteed hereby, all other demands whatsoever and hereby waives any failure to promptly commence suit against any party or to give any notice to or make any claim or demand upon Newco. Guarantor further agrees that this Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment, or any part thereof, by Newco is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy or reorganization of Newco, or otherwise, all as though such payment had not been made. Guarantor agrees that sufficiently in advance of Closing it shall make such calls for capital contributions from its general and limited partners, and take such other actions necessary, to ensure that Guarantor has sufficient cash funds at Closing to fully fund its obligations under this Section 5.16. This Guaranty shall inure to the benefit of all provisions of law which are or might be in conflict with the Company and each shareholder terms of the Guaranty.
(c) If an action or proceeding is brought to interpret or enforce the Guaranty, then the prevailing party shall be entitled to receive the Per Share Merger Consideration on a pro rata basis. There shall be no duty or obligation upon the Company or recover its shareholders (i) to proceed against Newcoreasonable attorney fees and costs of suit incurred, (ii) to initiate any proceeding or exhaust any remedy against Newco, or (iii) to give any notice to Newco or Guarantor, whatsoever, before bringing suit, or instituting proceedings of any kind against Newco or Guarantor. Until all of the obligations of Newco under this Agreement have been satisfied in full, Guarantor shall have no right or subrogation and hereby waives any right to enforce any remedy which Company or its shareholders now has or may hereafter have against Newco and any benefit of, and any right to participate in, any security now or hereafter held by Company or its shareholders. All rights and remedies under this Guaranty are cumulative and those granted hereunder are in addition to any rights and remedies other available under law. From relief, with respect to the date hereof until interpretation or enforcement of the Effective Time, Guarantor shall not take any action that would reasonably be expected to materially, adversely affect its ability to perform its obligations under this Section 5.16. Notwithstanding the foregoing provisions of this Section 5.16, Guarantor's obligation is limited to $1.65 million and will be deemed satisfied in full if Newco pays the termination fee under Section 7.02 or if the Merger is consummated and the Merger Consideration is paid pursuant Section 2.02Guaranty.
Appears in 1 contract
Sources: Asset Purchase Agreement (Echo Global Logistics, Inc.)
Guaranty of Performance. Subject In order to induce Lender to make the limitations set forth belowLoan to Borrower, the Guarantor does hereby unconditionally guarantee and irrevocably guarantees to Lender the timely payment and performance of all covenants Obligations (as defined in the Loan Agreement), primary or secondary, certain or contingent of Borrower to Lender now or hereafter owing or incurred (including without limitation costs and obligations of Newco under this Agreement including, but not limited to, the obligation expenses incurred by Lender in attempting to fund the Per Share Merger Consideration pursuant to Section 2.01 hereof and to pay the termination fee contemplated by Section 7.02 hereof, up to a total of $34.65 million (the "Guaranty"). The obligation of Guarantor under the Guaranty is primary, absolute and unconditional, is a continuing guaranty, and shall remain in force at all times hereafter, until all of Newco's obligations hereunder have been satisfied in full. Guarantor hereby waives notice, presentment, demand, protest and notice of dishonor of collect or enforce any of the liabilities foregoing) which are chargeable to Borrower either by law or obligations guaranteed herebyunder the terms of Lender’s arrangements with Borrower relative to the above mentioned loan. The word “Obligation” is used herein in its most comprehensive sense, and hereby waives includes any failure and all advances (including future advances and those advances made by Lender to promptly commence suit protect, enlarge or preserve the priority, propriety, or amount of its security interest against mechanic’s liens, equitable liens, or statutory claimants, or otherwise), debts, obligations and liabilities of Borrower heretofore, now or hereafter made, incurred or created, whether voluntary or involuntary and however arising, whether due or not, absolute or contingent, liquidated, determined or undetermined, and whether Borrower may be liable individually or jointly with others, or whether recovery upon such indebtedness may be or hereafter become barred by any party statute of limitations, or to give any notice to whether such indebtedness may be or make any claim or demand upon Newcohereafter become otherwise unenforceable. Guarantor consents that the terms, covenants, and provisions contained in any of the Loan Documents may be altered, extended, released, modified or cancelled, all without any further consent of Guarantor, and Guarantor agrees that this Guaranty shall continue to in no way be effective affected, diminished or be reinstatedreleased by any such alteration, as the case may beextension, if at any time any paymentmodification, release or any part thereof, by Newco is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy or reorganization of Newco, or otherwise, all as though such payment had not been made. Guarantor agrees that sufficiently in advance of Closing it shall make such calls for capital contributions from its general and limited partners, and take such other actions necessary, to ensure that Guarantor has sufficient cash funds at Closing to fully fund its obligations under this Section 5.16. This Guaranty shall inure to the benefit of the Company and each shareholder entitled to receive the Per Share Merger Consideration on a pro rata basis. There shall be no duty or obligation upon the Company or its shareholders (i) to proceed against Newco, (ii) to initiate any proceeding or exhaust any remedy against Newco, or (iii) to give any notice to Newco or Guarantor, whatsoever, before bringing suit, or instituting proceedings of any kind against Newco or Guarantor. Until all of the obligations of Newco under this Agreement have been satisfied in full, Guarantor shall have no right or subrogation and hereby waives any right to enforce any remedy which Company or its shareholders now has or may hereafter have against Newco and any benefit of, and any right to participate in, any security now or hereafter held by Company or its shareholders. All rights and remedies under this Guaranty are cumulative and those granted hereunder are in addition to any rights and remedies available under law. From the date hereof until the Effective Time, Guarantor shall not take any action that would reasonably be expected to materially, adversely affect its ability to perform its obligations under this Section 5.16. Notwithstanding the foregoing provisions of this Section 5.16, Guarantor's obligation is limited to $1.65 million and will be deemed satisfied in full if Newco pays the termination fee under Section 7.02 or if the Merger is consummated and the Merger Consideration is paid pursuant Section 2.02cancellation.
Appears in 1 contract
Guaranty of Performance. Subject to the limitations set forth below, the Guarantor does additionally hereby unconditionally guarantee the payment jointly and performance of severally with all covenants and obligations of Newco under this Agreement including, but not limited to, the obligation to fund the Per Share Merger Consideration pursuant to Section 2.01 hereof and to pay the termination fee contemplated by Section 7.02 hereof, up to a total of $34.65 million (the "Guaranty"). The obligation of Guarantor under the Guaranty is primary, absolute and unconditional, is a continuing guaranty, and shall remain in force at all times hereafter, until all of Newco's obligations hereunder have been satisfied in full. Guarantor hereby waives notice, presentment, demand, protest and notice of dishonor of any other guarantors of the liabilities or obligations guaranteed herebyLoan, unconditionally and hereby waives any failure irrevocably guarantees to promptly commence suit against any party or to give any notice to or make any claim or demand upon Newco. Guarantor further agrees that this Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment, or any part thereof, by Newco is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy or reorganization of Newco, or otherwise, all as though such payment had not been made. Guarantor agrees that sufficiently in advance of Closing it shall make such calls Administrative Agent for capital contributions from its general and limited partners, and take such other actions necessary, to ensure that Guarantor has sufficient cash funds at Closing to fully fund its obligations under this Section 5.16. This Guaranty shall inure to the benefit of the Company Lenders the timely performance of all obligations of Borrower under all of the Loan Documents other than the Principal Indebtedness and each shareholder entitled to receive the Per Share Merger Consideration on a pro rata basis. There shall Other Monetary Obligations, including, without limiting the generality of the foregoing:
(a) that the Improvements will be no duty or obligation upon constructed in accordance with the Company or its shareholders Loan Agreement and with the Plans;
(ib) to proceed against Newcothat the Improvements will be completed, (ii) to initiate lien free, and ready for occupancy, including delivery of any proceeding or exhaust any remedy against Newcopermits, certificates, or governmental approvals required by law or the Loan Agreement, on or before the Completion Date required in the Loan Agreement; and
(iiic) that Borrower will duly and punctually perform and observe all other terms, covenants, and conditions of the Note, the Deed of Trust, the Loan Agreement, the Environmental Agreement or any other Loan Document, or any Swap Transaction whether according to give the present terms thereof, at any earlier or accelerated date or dates as provided therein, or pursuant to any extension of time or to any change or changes in the terms, covenants, or conditions thereof now or hereafter made or granted. If a Default (as such term is defined in the Loan Agreement) has occurred and is continuing, Administrative Agent may, at its option, without notice to Newco Guarantor or anyone else, complete the Improvements either before or after commencement of foreclosure proceedings or before or after exercise of any other right or remedy of Administrative Agent against Borrower or Guarantor, whatsoeverwith such changes or modifications in the Plans as Administrative Agent deems necessary and expend such sums as Administrative Agent, before bringing suitin its sole and absolute discretion, deems necessary or instituting proceedings of any kind against Newco or Guarantor. Until all of advisable to complete the obligations of Newco under this Agreement have been satisfied in fullImprovements, and Guarantor shall have no right or subrogation and hereby waives any right to enforce contest any remedy which Company or its shareholders now has or may hereafter have against Newco such expenditures by Administrative Agent. The amount of any and any benefit of, and any right to participate in, any security now or hereafter held all expenditures made by Company or its shareholders. All rights and remedies under this Guaranty are cumulative and those granted hereunder are in addition to any rights and remedies available under law. From Administrative Agent for the foregoing purposes shall bear interest from the date hereof made until repaid to Administrative Agent, at a rate per annum equal to the Effective Timeinterest rate provided for in the Loan Agreement and, together with such interest, shall be due and payable by Guarantor to Administrative Agent upon demand. Administrative Agent does not have and shall not never have any obligation to complete the Improvements or take any action that would reasonably be expected to materially, adversely affect its ability to perform its other action. The obligations and liability of Guarantor under this Section 5.16. Notwithstanding 3 shall not be limited, restricted or reduced by the foregoing provisions terms of this Section 5.16, Guarantor's obligation is limited to $1.65 million the guaranties set forth in Sections 1 and will be deemed satisfied in full if Newco pays the termination fee under Section 7.02 or if the Merger is consummated and the Merger Consideration is paid pursuant Section 2.022.
Appears in 1 contract
Sources: Guaranty Agreement (MGM Mirage)
Guaranty of Performance. Subject Guarantor additionally unconditionally guarantees to Bank the limitations set forth below, the Guarantor does hereby unconditionally guarantee the payment and timely performance of all covenants and other obligations of Newco Borrower under this Agreement all of the Loan Documents, including, but not limited towithout limiting the generality of the foregoing, that:
(a) the obligation to fund Improvements will be constructed upon the Per Share Merger Consideration pursuant to Section 2.01 hereof Land in accordance with the Loan Agreement and to pay with the termination fee contemplated by Section 7.02 hereofPlans; and
(b) the Improvements will be completed and ready for occupancy, up to a total including delivery of $34.65 million (the "Guaranty"). The obligation of Guarantor under the Guaranty is primaryany certificates, absolute and unconditional, is a continuing guarantylicenses, and shall remain permits required by law or the Loan Agreement, within the time periods required in force at all times hereafterthe Loan Agreement. In the event the foregoing obligations of Borrower are not timely performed in any respect whatsoever, until all of Newco's obligations hereunder have been satisfied in full. Guarantor hereby waives noticeGuarantor, presentment, demand, protest and notice of dishonor without the necessity of any of the liabilities or obligations guaranteed herebynotice from Bank to Guarantor, and hereby waives any failure agrees to promptly commence suit against any party or to give any notice to or make any claim or demand upon Newco. Guarantor further agrees that this Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment, or any part thereof, by Newco is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy or reorganization of Newco, or otherwise, all as though such payment had not been made. Guarantor agrees that sufficiently in advance of Closing it shall make such calls for capital contributions from its general and limited partners, and take such other actions necessary, to ensure that Guarantor has sufficient cash funds at Closing to fully fund its obligations under this Section 5.16. This Guaranty shall inure to the benefit of the Company and each shareholder entitled to receive the Per Share Merger Consideration on a pro rata basis. There shall be no duty or obligation upon the Company or its shareholders (i) assume all responsibility for the completion of the Improvements and, at Guarantor's own cost and expense, to proceed against Newco, cause the Improvements to be fully completed in accordance with the Plans and in accordance with the Loan Agreement; (ii) to initiate any proceeding or exhaust any remedy against Newcopay all bills, or costs, and expenses in connection with the construction and completion of the Improvements; and (iii) indemnify and hold Bank harmless from any and all loss, cost, liability or expense Bank may suffer by reason of any such acts or omissions of Borrower. If, after the occurrence of a Default by Borrower, Guarantor has not caused construction to give any progress as required by the Loan Agreement, Bank may, at its option, after first having given notice to Newco the Guarantor at the address set forth below in the manner prescribed herein for giving notice, complete the Improvements either before or after commencement of foreclosure proceedings or before or after any other remedy of Bank against Borrower or Guarantor, whatsoeverwith such changes or modifications in the Plans which Bank reasonably deems necessary and expend such sums as Bank, before bringing suitin its discretion, or instituting proceedings of any kind against Newco or Guarantor. Until all of reasonably deems necessary and proper in order to so complete the obligations of Newco under this Agreement have been satisfied in fullImprovements, and Guarantor shall have no right or subrogation and hereby waives any right to enforce contest any remedy which Company such expenditures. The amount of any and all expenditures made by Bank for the foregoing purposes shall be due and payable to Bank upon demand and accrue interest at the rate then applicable under the Note (or its shareholders now has or may hereafter have against Newco and any benefit of, and any right to participate in, any security now or hereafter held by Company or its shareholders. All rights and remedies under this Guaranty are cumulative and those granted hereunder are in addition to any rights and remedies available under law. From the date hereof until the Effective Time, Guarantor shall not take any action that would reasonably be expected to materially, adversely affect its ability to perform its obligations applicable under this Section 5.16. Notwithstanding the foregoing provisions of this Section 5.16, Guarantor's obligation is limited to $1.65 million and will be deemed satisfied in full Note if Newco pays the termination fee under Section 7.02 or if the Merger is consummated and the Merger Consideration is paid pursuant Section 2.02it were still outstanding).
Appears in 1 contract
Guaranty of Performance. Subject to the limitations set forth below, the Guarantor does (a) IR hereby unconditionally guarantee the payment and performance of all covenants and obligations of Newco under this Agreement including, but not limited to, the obligation to fund the Per Share Merger Consideration pursuant to Section 2.01 hereof and to pay the termination fee contemplated by Section 7.02 hereof, up to a total of $34.65 million guarantees (the "GuarantyIR GUARANTY") to the Buyers the prompt and complete performance of any and all Liabilities required to be performed by the applicable other Seller or other applicable IR Affiliate pursuant to this Agreement or the Transaction Agreements, including the indemnification obligations in ARTICLE IX (the "SELLER GUARANTEED OBLIGATIONS"). The obligation of Guarantor under the This IR Guaranty is primaryan absolute, absolute present and unconditional, is a continuing guarantyguaranty of performance, and shall remain in full force at all times hereafterand effect without regard to, until all and the Liabilities of Newco's obligations IR hereunder have been satisfied in full. Guarantor hereby waives noticeshall not be impaired by, presentment, demand, protest and notice of dishonor of any of the liabilities following: (a) any amendment or obligations guaranteed herebymodification of or addition or supplement to any of the Seller Guaranteed Obligations or any agreement executed in connection therewith, and hereby waives (b) any failure to promptly commence suit against default by any party Seller (other than IR), Subsidiary or to give any notice to or make any claim or demand upon Newco. Guarantor further agrees that this Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any paymentother applicable IR Affiliate under, or any part thereofinvalidity or unenforceability in any respect of, by Newco is rescinded or must otherwise be restored any irregularity or returned upon other defect in any of, the Seller Guaranteed Obligations, (c) any exercise or nonexercise of any right, remedy, power or privilege in respect of this IR Guaranty or any of the Seller Guaranteed Obligations, (d) any transfer of the assets of a Seller or other applicable IR Affiliate to, or any consolidation or merger of a Seller or other applicable IR Affiliate with or into, any other Person; or (e) any bankruptcy, insolvency, bankruptcy reorganization or reorganization similar proceeding involving or affecting a Seller or other applicable IR Affiliate.
(b) Timken hereby unconditionally guarantees (the "BUYER GUARANTY") to the Sellers the prompt and complete performance of Newcoany and all Liabilities required to be performed by the Buyers pursuant to this Agreement or the Transaction Agreements, including the indemnification obligations in ARTICLE IX (the "BUYER GUARANTEED Obligations"). This Buyer Guaranty is an absolute, present and continuing guaranty of performance, and shall remain in full force and effect without regard to, and the Liabilities of Buyers hereunder shall not be impaired by, any of the following: (a) any amendment or modification of or addition or supplement to any of the Guaranteed Obligations or any agreement executed in connection therewith, (b) any default by any Buyer under, or otherwiseany invalidity or unenforceability in any respect of, all as though such payment had not been made. Guarantor agrees that sufficiently or any irregularity or other defect in advance any of, the Buyer Guaranteed Obligations, (c) any exercise or nonexercise of Closing it shall make such calls for capital contributions from its general and limited partnersany right, and take such other actions necessaryremedy, to ensure that Guarantor has sufficient cash funds at Closing to fully fund its obligations under power or privilege in respect of this Section 5.16. This Buyer Guaranty shall inure to the benefit or any of the Company and each shareholder entitled to receive the Per Share Merger Consideration on a pro rata basis. There shall be no duty or obligation upon the Company or its shareholders (i) to proceed against NewcoBuyer Guaranteed Obligations, (iid) to initiate any proceeding transfer of the assets of any Buyer or exhaust any remedy against Newcoof its Affiliates to, or (iii) to give any notice to Newco consolidation or Guarantor, whatsoever, before bringing suit, or instituting proceedings merger of any kind against Newco Buyer or Guarantor. Until all any of the obligations of Newco under this Agreement have been satisfied in full, Guarantor shall have no right its Affiliates with or subrogation and hereby waives any right to enforce any remedy which Company or its shareholders now has or may hereafter have against Newco and any benefit of, and any right to participate ininto, any security now other Person; or hereafter held by Company (e) any bankruptcy, insolvency, reorganization or similar proceeding involving or affecting any Buyer or any of its shareholders. All rights and remedies under this Guaranty are cumulative and those granted hereunder are in addition to any rights and remedies available under law. From the date hereof until the Effective Time, Guarantor shall not take any action that would reasonably be expected to materially, adversely affect its ability to perform its obligations under this Section 5.16. Notwithstanding the foregoing provisions of this Section 5.16, Guarantor's obligation is limited to $1.65 million and will be deemed satisfied in full if Newco pays the termination fee under Section 7.02 or if the Merger is consummated and the Merger Consideration is paid pursuant Section 2.02Affiliate.
Appears in 1 contract
Guaranty of Performance. Subject to the limitations set forth below, the Guarantor does hereby unconditionally guarantee and irrevocably guarantees to Secured Parties the payment full, complete and timely performance of all of the Guaranteed Obligations, including, without limitation, that Borrowers will duly and punctually perform, observe and comply with all of the terms, covenants and obligations conditions of Newco under this Agreement including, but not limited tothe Credit Agreement, the obligation Lien Instruments, the Environmental Indemnity and the other Loan Documents, whether according to fund the Per Share Merger Consideration present terms thereof, at any earlier or accelerated date or dates as provided therein, or pursuant to Section 2.01 hereof and any extension of time or to pay any change or changes in the termination fee contemplated by Section 7.02 hereofterms, up to a total of $34.65 million (the "Guaranty")covenants or conditions thereof now or hereafter made or granted. The obligation of Guarantor under the Guaranty is primary, absolute and unconditional, is a continuing guaranty, and shall remain in force at all times hereafter, until all of Newco's obligations hereunder have been satisfied in full. Guarantor hereby waives notice, presentment, demand, protest and notice of dishonor of If any of the liabilities Guaranteed Obligations are not complied with or obligations guaranteed herebyperformed in any respect whatsoever beyond any applicable notice and cure period, and hereby waives any failure to promptly commence suit against any party or to give without the necessity of any notice from any Secured Party to or make any claim or demand upon NewcoGuarantor, Guarantor agrees to (i) assume all responsibility for the full, complete and timely performance of the Guaranteed Obligations and, at Guarantor’s own cost and expense, to perform and cause performance of all the Guaranteed Obligations in strict accordance with the terms of the Loan Documents; and (ii) INDEMNIFY, DEFEND AND HOLD SECURED PARTIES HARMLESS FROM AND AGAINST ANY AND ALL LOSS, COST, LIABILITY OR EXPENSE THAT ANY SECURED PARTY MAY SUFFER BY ANY REASON OF ANY SUCH NONCOMPLIANCE OR NONPERFORMANCE. Guarantor further acknowledges and agrees that this Guaranty shall continue Guarantor may be required to be effective perform the Guaranteed Obligations in full without assistance or be reinstated, as the case may be, if at support from any time any payment, Borrower or any part thereof, by Newco is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy or reorganization of Newco, or otherwise, all as though such payment had not been madeother Person. Guarantor agrees that sufficiently if all or any part of the Guaranteed Obligations shall not be punctually performed when and as stated in advance the Loan Documents, Guarantor shall, immediately upon demand by any Secured Party (provided, however, that the failure of Closing it shall any Secured Party to make such calls for capital contributions from demand shall neither relieve nor discharge Guarantor in any respect of its general and limited partners, and take such other actions necessary, to ensure that Guarantor has sufficient cash funds at Closing to fully fund its obligations Guaranteed Obligations under this Section 5.16. This Guaranty shall inure Guaranty, any condition or requirement of such demand to the benefit of the Company and each shareholder entitled to receive the Per Share Merger Consideration on a pro rata basis. There shall be no duty or obligation upon the Company or its shareholders (i) to proceed against Newco, (ii) to initiate any proceeding or exhaust any remedy against Newco, or (iii) to give any notice to Newco or Guarantor, whatsoever, before bringing suit, or instituting proceedings of any kind against Newco or Guarantor. Until all of the obligations of Newco ’s liability under this Agreement have been satisfied in fullGuaranty being hereby waived by Guarantor), Guarantor perform the Guaranteed Obligations. Secured Parties may, but shall have no right obligation to, make demand(s) at any time coincident with or subrogation and hereby waives any right to enforce any remedy which Company after the time for performance of all or its shareholders now has or may hereafter have against Newco and any benefit ofpart of the Guaranteed Obligations, and any right demand(s) may be made from time to participate in, any security now time with respect to the same or hereafter held by Company or its shareholdersdifferent items of the Guaranteed Obligations. All rights and remedies under this Guaranty are cumulative and those granted hereunder are in addition to any rights and remedies available under law. From the date hereof until the Effective Time, Guarantor shall not take any action that would reasonably be expected to materially, adversely affect its ability to perform its obligations under this Section 5.16. Notwithstanding the foregoing provisions of this Section 5.16, Guarantor's obligation is limited to $1.65 million and will be deemed satisfied in full if Newco pays the termination fee under Section 7.02 or if the Merger is consummated and the Merger Consideration is paid pursuant Section 2.02.EXHIBIT E-1 – CBL 4873-9001-7310\2
Appears in 1 contract
Guaranty of Performance. Subject to the limitations set forth below, the Guarantor does additionally hereby unconditionally guarantee and irrevocably guarantees to Lender the payment and timely performance of all covenants and other obligations of Newco Borrower under this Agreement all of the Loan Documents, including, but not limited towithout limiting the generality of the foregoing:
(a) that the Improvements will be constructed in accordance with the Loan Agreement and with the Plans;
(b) that the Improvements will be completed and ready for occupancy, including delivery of any certificates required by law or the Loan Agreement, on or before the Completion Date required in the Loan Agreement; and
(c) that Borrower will duly and punctually perform and observe all other terms, covenants, and conditions of the Note, the obligation Deed of Trust, the Loan Agreement, the Environmental Agreement or any other Loan Document, [or any Interest Rate Protection Agreement] whether according to fund the Per Share Merger Consideration present terms thereof, at any earlier or accelerated date or dates as provided therein, or pursuant to Section 2.01 hereof and any extension of time or to pay any change or changes in the termination fee contemplated by Section 7.02 hereofterms, up to a total covenants, or conditions thereof now or hereafter made or granted. If any of $34.65 million (the "Guaranty"). The obligation such obligations of Guarantor under the Guaranty is primaryBorrower are not complied with, absolute and unconditional, is a continuing guarantyin any respect whatsoever, and shall remain in force at all times hereafter, until all of Newco's obligations hereunder have been satisfied in full. Guarantor hereby waives notice, presentment, demand, protest and notice of dishonor without the necessity of any of the liabilities or obligations guaranteed herebynotice from Lender to Guarantor, and hereby waives any failure to promptly commence suit against any party or to give any notice to or make any claim or demand upon Newco. Guarantor further agrees that this Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment, or any part thereof, by Newco is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy or reorganization of Newco, or otherwise, all as though such payment had not been made. Guarantor agrees that sufficiently in advance of Closing it shall make such calls for capital contributions from its general and limited partners, and take such other actions necessary, to ensure that Guarantor has sufficient cash funds at Closing to fully fund its obligations under this Section 5.16. This Guaranty shall inure to the benefit of the Company and each shareholder entitled to receive the Per Share Merger Consideration on a pro rata basis. There shall be no duty or obligation upon the Company or its shareholders (i) assume all responsibility for the completion of the Improvements and, at Guarantor’s own cost and expense, cause the Improvements to proceed against Newco, be fully completed in accordance with the Plans and the Loan Documents; (ii) to initiate any proceeding or exhaust any remedy against Newco, or pay all bills in connection with the construction of the Improvements; and (iii) indemnify and hold Lender harmless from any and all loss, cost, liability or expense that Lender may suffer by reason of any such non-compliance. So long as all of such obligations are being performed by Borrower or Guarantor and no Default exists, Lender will make the Loan proceeds available under and subject to give any the terms of the Loan Agreement. If after the occurrence of a Default, and without limiting Lender’s rights and remedies, Lender, in its sole and absolute discretion, is dissatisfied with the progress of construction by Borrower and/or Guarantor, Lender may, at its option, without notice to Newco Guarantor or anyone else, complete the Improvements either before or after commencement of foreclosure proceedings or before or after exercise of any other right or remedy of Lender against Borrower or Guarantor, whatsoeverwith such changes or modifications in the Plans as Lender deems necessary and expend such sums as Lender, before bringing suitin its sole and absolute discretion, deems necessary or instituting proceedings of any kind against Newco or Guarantor. Until all of advisable to complete the obligations of Newco under this Agreement have been satisfied in fullImprovements, and Guarantor shall have no right or subrogation and hereby waives any right to enforce contest any remedy which Company or its shareholders now has or may hereafter have against Newco such expenditures by Lender. The amount of any and any benefit of, and any right to participate in, any security now or hereafter held all expenditures made by Company or its shareholders. All rights and remedies under this Guaranty are cumulative and those granted hereunder are in addition to any rights and remedies available under law. From Lender for the foregoing purposes shall bear interest from the date hereof made until repaid to Lender, at a rate per annum equal to the Effective Timeinterest rate provided for in the Note and, together with such interest, shall be due and payable by Guarantor to Lender upon demand. Lender does not have and shall not never have any obligation to complete the Improvements or take any action that would reasonably be expected to materially, adversely affect its ability to perform its such action. The obligations and liability of Guarantor under this Section 5.16. Notwithstanding 2 shall not be limited or restricted by the foregoing provisions existence of this Section 5.16, Guarantor's obligation is limited to $1.65 million and will be deemed satisfied in full if Newco pays (or any terms of) the termination fee guaranty of payment under Section 7.02 or if the Merger is consummated and the Merger Consideration is paid pursuant Section 2.021.
Appears in 1 contract
Guaranty of Performance. Subject (a) Guarantor hereby unconditionally and irrevocably guarantees to Lender the complete performance when due of all other Obligations of any or all of the Borrowers under all of the Loan Documents, including, without limiting the generality of the foregoing, all such Obligations of any or all of the Borrowers to:
(i) Complete the construction or making of Improvements to any Eligible Property which is part of the Collateral Pool and as part of the Borrower’s plan to achieve Stabilization of the same (“Construction of the Improvements”);
(ii) Make all deposits required under the terms of the Loan Agreement and the other Loan Documents, as and when required;
(iii) Promptly pay in full and discharge all Property Assessments (as that term is defined in the Mortgage) prior to the limitations set forth belowday upon which the same shall become delinquent (subject to the terms of the Mortgages regarding permitted contests of such Property Assessments);
(iv) Pay, at or before the times required by the Loan Documents, the Guarantor does hereby unconditionally guarantee premiums on all policies of insurance required to be maintained under the payment terms of the Loan Documents; and
(v) Duly and performance of punctually perform and observe all other terms, covenants and obligations conditions of Newco the Note, the Loan Agreement, the Mortgages, the Environmental Agreements, all other Loan Documents, and any Swap Contract.
(b) Upon demand by Lender following the occurrence and during the continuance of an Event of Default under this any of the Loan Documents (an “Event of Default”), Guarantor will cause all Improvements to be completed in accordance with the requirements of the Loan Agreement includingand other Loan Documents and will pay all bills in connection therewith. If Lender shall have requested Guarantor to complete or cause the completion of Construction of the Improvements or the renovation or equipping thereof, Guarantor shall be entitled to requisition and draw all of the undisbursed Loan proceeds intended to be used for such Construction of the Improvements pursuant to the Budget for the same (but not in excess of the committed amount of the Loan for the same), together with any deposits in the Borrower’s Deposit Account made with respect to the Construction of the Improvements. Lender shall disburse such funds for the purpose of, and to the extent necessary for, completing the Construction of the Improvements in accordance with the Budget for the same, provided that:
(i) Guarantor shall be performing the Guaranteed Obligations, including but not limited toto any and all performance related to the Construction of the Improvements, or causing the obligation to fund performance of the Per Share Merger Consideration pursuant to Section 2.01 hereof same with due diligence;
(ii) Guarantor shall have made all required deposits into the Borrower’s Deposit Account and to pay the termination fee contemplated by Section 7.02 hereof, up to a total of $34.65 million (the "Guaranty"). The obligation of Guarantor all other deposits required under the Guaranty Loan Agreement;
(iii) All such disbursements of Loan proceeds to Guarantor shall be secured by the Mortgage with respect to the same and any other collateral or security for the Loan with the same priority as all previous advances of Loan proceeds to Borrowers;
(iv) Guarantor shall have cured all Defaults and Events of Default under the Loan, provided that Guarantor shall not be required to cure any non-monetary Default or Event of Default which is primary, absolute personal to Borrowers and unconditional, is a continuing guaranty, and therefore not susceptible to cure by Guarantor; and
(v) Guarantor shall remain in force at all times hereafter, until all of Newco's obligations hereunder have been satisfied in full. Guarantor hereby waives notice, presentment, demand, protest and notice of dishonor of any otherwise comply with the provisions of the liabilities or obligations guaranteed hereby, Loan Agreement governing draw requests and hereby waives any failure to promptly commence suit against any party or to give any notice to or make any claim or demand upon Newco. Guarantor further agrees that this Guaranty shall continue to be effective or be reinstated, as disbursement of the case may be, if at any time any payment, or any part thereof, by Newco is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy or reorganization of Newco, or otherwise, all as though such payment had not been made. Guarantor agrees that sufficiently in advance of Closing it shall make such calls for capital contributions from its general Loan.
(c) The liability and limited partners, and take such other actions necessary, to ensure that Guarantor has sufficient cash funds at Closing to fully fund its obligations under this Section 5.16. This Guaranty 2 shall inure to not be limited or restricted by the benefit of the Company and each shareholder entitled to receive the Per Share Merger Consideration on a pro rata basis. There shall be no duty or obligation upon the Company or its shareholders (i) to proceed against Newco, (ii) to initiate any proceeding or exhaust any remedy against Newcoexistence of, or (iii) to give any notice to Newco or Guarantor, whatsoever, before bringing suit, or instituting proceedings of any kind against Newco or Guarantor. Until all of the obligations of Newco under this Agreement have been satisfied in full, Guarantor shall have no right or subrogation and hereby waives any right to enforce any remedy which Company or its shareholders now has or may hereafter have against Newco and any benefit terms of, and any right to participate in, any security now the guaranty of payment under Section 1 or hereafter held by Company or its shareholders. All rights and remedies under this Guaranty are cumulative and those granted hereunder are in addition to any rights and remedies available under law. From the date hereof until the Effective Time, Guarantor shall not take any action that would reasonably be expected to materially, adversely affect its ability to perform its guaranty of specific obligations under this Section 5.16. Notwithstanding the foregoing provisions of this Section 5.16, Guarantor's obligation is limited to $1.65 million and will be deemed satisfied in full if Newco pays the termination fee under Section 7.02 or if the Merger is consummated and the Merger Consideration is paid pursuant Section 2.023.
Appears in 1 contract
Sources: Guaranty Agreement (Resource Real Estate Opportunity REIT, Inc.)
Guaranty of Performance. Subject THE TERMS, DEFINITIONS, CONDITIONS AND INFORMATION SET FORTH IN THE “MERCHANT AGREEMENT”, INCLUDING THE “TERMS AND CONDITIONS”, ARE HEREBY INCORPORATED IN AND MADE A PART OF THIS SECURITY AGREEMENT AND GUARANTY. CAPITALIZED TERMS NOT DEFINED IN THIS SECURITY AGREEMENT AND GUARANTY, SHALL HAVE THE MEANING SET FORTH IN THE MERCHANT AGREEMENT, INCLUDING THE TERMS AND CONDITIONS. RCNY As an additional inducement for RCNY to the limitations set forth belowenter into this Agreement, the undersigned Guarantor(s) hereby provides RCNY with this Guaranty. Guarantor(s) will not be personally liable for any amount due under this Agreement unless Merchant commits an Event of Default pursuant to Paragraph 3.1 of this Agreement. Each Guarantor does hereby unconditionally shall be jointly and severally liable for all amounts owed to RCNY in the Event of Default. Guarantor(s) guarantee the payment Merchant’s good faith, truthfulness and performance of all of the representations, warranties, covenants made by Merchant in this Agreement as each may be renewed, amended, extended or otherwise modified (the “Guaranteed Obligations”).Guarantor’s obligations are due at the time of any breach by Merchant of any representation, warranty, or covenant made by Merchant in the Agreement. Guarantor Waivers. In the event of a breach of the above, RCNY may seek recovery from Guarantors for all of RCNY’s losses and obligations damages by enforcement of Newco RCNY’s rights under this Agreement includingwithout first seeking to obtain payment from Merchant, but not limited toany other guarantor, the obligation to fund the Per Share Merger Consideration or any Collateral or Additional Collateral RCNY may hold pursuant to Section 2.01 hereof and this Agreement or any other guaranty. RCNY does not have to pay the termination fee contemplated by Section 7.02 hereof, up to a total of $34.65 million (the "Guaranty"). The obligation of notify Guarantor under the Guaranty is primary, absolute and unconditional, is a continuing guaranty, and shall remain in force at all times hereafter, until all of Newco's obligations hereunder have been satisfied in full. Guarantor hereby waives notice, presentment, demand, protest and notice of dishonor of any of the liabilities or obligations guaranteed hereby, following events and hereby waives any failure to promptly commence suit against any party or to give any notice to or make any claim or demand upon Newco. Guarantor further agrees that this Guaranty shall continue to will not be effective or be reinstated, as the case may be, if at any time any payment, or any part thereof, by Newco is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy or reorganization of Newco, or otherwise, all as though such payment had not been made. Guarantor agrees that sufficiently in advance of Closing it shall make such calls for capital contributions released from its general and limited partners, and take such other actions necessary, to ensure that Guarantor has sufficient cash funds at Closing to fully fund its obligations under this Section 5.16. This Guaranty shall inure to the benefit of the Company and each shareholder entitled to receive the Per Share Merger Consideration on a pro rata basis. There shall be no duty or obligation upon the Company or its shareholders Agreement if it is not notified of: (i) Merchant’s failure to proceed against Newco, pay timely any amount required under the Merchant Agreement; (ii) to initiate any proceeding adverse change in Merchant’s financial condition or exhaust any remedy against Newco, or business; (iii) to give any notice to Newco sale or Guarantor, whatsoever, before bringing suit, or instituting proceedings other disposition of any kind against Newco collateral securing the Guaranteed Obligations or Guarantorany other guaranty of the Guaranteed Obligations; (iv) RCNY’s acceptance of this Agreement; and (v) any renewal, extension or other modification of the Merchant Agreement or Merchant’s other obligations to RCNY. In addition, RCNY may take any of the following actions without releasing Guarantor from any of its obligations under this Agreement: (i) renew, extend or otherwise modify the Merchant Agreement or Merchant’s other obligations to RCNY; (ii) release Merchant from its obligations to RCNY; (iii) sell, release, impair, waive or otherwise fail to realize upon any collateral securing the Guaranteed Obligations or any other guaranty of the Guaranteed Obligations; and (iv) foreclose on any collateral securing the Guaranteed Obligations or any other guaranty of the Guaranteed Obligations in a manner that impairs or precludes the right of Guarantor to obtain reimbursement for payment under this Agreement. Until all of the Purchased Amount and Merchant’s other obligations of Newco to RCNY under the Merchant Agreement and this Agreement have been satisfied are paid in full, Guarantor shall have no right not seek reimbursement from Merchant or subrogation any other guarantor for any amounts paid by it under this Agreement. Guarantor permanently waives and hereby waives shall not seek to exercise any right to enforce any remedy which Company or its shareholders now has or of the following rights that it may hereafter have against Newco and any benefit of, and any right to participate inMerchant, any security now other guarantor, or hereafter held any collateral provided by Company Merchant or its shareholders. All rights and remedies any other guarantor, for any amounts paid by it, or acts performed by it, under this Guaranty are cumulative and those granted hereunder are in addition Agreement: (i) subrogation; (ii) reimbursement; (iii) performance; (iv) indemnification; or (v) contribution. In the event that RCNY must return any amount paid by Merchant or any other guarantor of the Guaranteed Obligations because that person has become subject to a proceeding under the United States Bankruptcy Code or any rights and remedies available under similar law. From the date hereof until the Effective Time, Guarantor shall not take any action that would reasonably be expected to materially, adversely affect its ability to perform its Guarantor’s obligations under this Section 5.16Agreement shall include that amount. Notwithstanding Guarantor Acknowledgement. Guarantor acknowledges that: (i) He/She is bound by the foregoing Class Action Waiver provision in the Merchant Agreement Terms and Conditions; (ii) He/She understands the seriousness of the provisions of this Section 5.16, Guarantor's obligation is limited Agreement; (ii) He/She has had a full opportunity to $1.65 million consult with counsel of his/her choice; and will be deemed satisfied in full if Newco pays the termination fee under Section 7.02 (iv) He/She has consulted with counsel of its choice or if the Merger is consummated has decided not to avail himself/herself of that opportunity. FOR THE MERCHANT (#1) By: (Print Name and the Merger Consideration is paid pursuant Section 2.02.Title) (Signature) SSN# Driver’s License Number FOR THE MERCHANT (#2) By: (Print Name and Title) (Signature) SSN# Driver’s License Number FOR THE GUARANTOR(S) (#1) By: (Print Name and Title) (Signature) SSN# Driver’s License Number FOR THE GUARANTOR(S) (#2) By: (Print Name and Title) (Signature) SSN# Driver’s License Number
Appears in 1 contract
Sources: Purchase and Sale of Future Receivables (PARTS iD, Inc.)
Guaranty of Performance. Subject Guarantor additionally hereby absolutely, unconditionally, and irrevocably guarantees to Agent the limitations set forth belowfull, complete, and timely performance of the Guaranteed Obligations, including that Borrower will duly and punctually perform, observe, and comply with all of the terms, covenants, and conditions of the Loan Agreement and the other Loan Documents, whether according to their present terms, at any earlier or accelerated date or dates as provided in the Loan Documents, or pursuant to any extension of time or to any change or changes in the terms, covenants, or conditions of the Loan Documents now or hereafter made or granted. If any of the Guaranteed Obligations are not complied with or performed, in any respect whatsoever, and without the necessity of any notice from Agent to Guarantor, Guarantor does hereby unconditionally guarantee agrees to (a) assume all responsibility for the payment full, complete, and timely performance of the Guaranteed Obligations and, at Guarantor’s own cost and expense, to perform and cause performance of all covenants of the Guaranteed Obligations in strict accordance with the Loan Documents, and obligations (b) INDEMNIFY, DEFEND AND HOLD AGENT HARMLESS FROM AND AGAINST ANY AND ALL ACTUAL LOSS, COST, LIABILITY, OR EXPENSE THAT AGENT MAY SUFFER BY ANY REASON OF ANY SUCH NONCOMPLIANCE OR NONPERFORMANCE UNLESS DUE TO AGENT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. The amount of Newco under this Agreement including, but not limited to, any and all expenditures made by Agent resulting or arising from Guarantor’s failure to perform the obligation to fund the Per Share Merger Consideration Guaranteed Obligations pursuant to Section 2.01 hereof the terms of this Guaranty shall be immediately due and payable by Guarantor to pay Agent, together with interest at the termination fee contemplated highest interest rate then accruing under any promissory note then outstanding executed by Section 7.02 hereofBorrower and payable to the order of Agent, up plus 5% per annum, not to a total of $34.65 million (exceed the "Guaranty"). The obligation of Guarantor under the Guaranty is primary, absolute and unconditional, is a continuing guaranty, and shall remain in force at all times hereafter, until all of Newco's obligations hereunder have been satisfied in full. Guarantor hereby waives notice, presentment, demand, protest and notice of dishonor of any of the liabilities or obligations guaranteed hereby, and hereby waives any failure to promptly commence suit against any party or to give any notice to or make any claim or demand upon Newcomaximum interest permitted by applicable law. Guarantor further acknowledges and agrees that this Guaranty shall continue Guarantor may be required to be effective perform the Guaranteed Obligations in full without assistance or be reinstatedsupport from Borrower, as the case may be, if at any time any payment, other Obligated Party or any part thereof, by Newco is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy or reorganization of Newco, or otherwise, all as though such payment had not been madeother Person. Guarantor agrees that sufficiently if all or any part of the Guaranteed Obligations shall not be punctually performed when and as stated in advance the Loan Documents, Guarantor shall immediately perform the Guaranteed Obligations. Agent may, but shall have no obligation to, make demand(s) at any time coincident with or after the time for performance of Closing it shall make such calls for capital contributions from its general and limited partnersall or part of the Guaranteed Obligations, and take such other actions necessary, demand(s) may be made from time to ensure that time with respect to the same or different items of the Guaranteed Obligations. The obligations and liability of Guarantor has sufficient cash funds at Closing to fully fund its obligations under this Section 5.16. This Guaranty 2.02 shall inure to not be limited or restricted in any way by the benefit of the Company and each shareholder entitled to receive the Per Share Merger Consideration on a pro rata basis. There shall be no duty or obligation upon the Company or its shareholders (i) to proceed against Newco, (ii) to initiate any proceeding or exhaust any remedy against Newcoexistence of, or (iii) to give by any notice to Newco or Guarantor, whatsoever, before bringing suit, or instituting proceedings of any kind against Newco or Guarantor. Until all of the obligations of Newco under this Agreement have been satisfied in full, Guarantor shall have no right or subrogation and hereby waives any right to enforce any remedy which Company or its shareholders now has or may hereafter have against Newco and any benefit terms of, and any right to participate in, any security now or hereafter held by Company or its shareholders. All rights and remedies under this Guaranty are cumulative and those granted hereunder are in addition to any rights and remedies available under law. From the date hereof until the Effective Time, Guarantor shall not take any action that would reasonably be expected to materially, adversely affect its ability to perform its obligations under this Section 5.16. Notwithstanding the foregoing provisions guaranty of this Section 5.16, Guarantor's obligation is limited to $1.65 million and will be deemed satisfied in full if Newco pays the termination fee payment under Section 7.02 or if the Merger is consummated and the Merger Consideration is paid pursuant Section 2.022.01.
Appears in 1 contract
Sources: Unlimited Guaranty (Ustx, LLC)
Guaranty of Performance. Subject Cherokee hereby guarantees to Buyer, its successors and assigns the limitations set forth belowprompt and complete payment or performance of any and all liabilities or obligations of Seller under this Agreement (the “Cherokee Guaranty”). The Cherokee Guaranty is an absolute, unconditional, irrevocable, unlimited guaranty of payment and performance, irrespective of the Guarantor does hereby unconditionally guarantee the validity, regularity or enforceability of any obligation of Seller and irrespective of any circumstances which might otherwise constitute a legal or equitable discharge or defense of Cherokee. This Cherokee Guaranty is a continuing guaranty and covers all liabilities and obligations of Seller to Buyer. Any and every liability or obligation of Seller to Buyer shall be exclusively presumed to have been created, contracted or incurred in reliance upon this Cherokee Guaranty. This Cherokee Guaranty is a primary obligation of Cherokee and is a guaranty of payment and not merely of collection. In no event may this guaranty be assigned by Cherokee, whether by operation of law or otherwise, unless Cherokee or its successor continues to be obligated hereunder. Cherokee represents and warrants that: (a) Cherokee’s execution and performance of all covenants and obligations of Newco under this Agreement including, but not limited to, the obligation to fund the Per Share Merger Consideration pursuant to Section 2.01 hereof and to pay the termination fee contemplated by Section 7.02 hereof, up to a total of $34.65 million (the "Guaranty"). The obligation of Guarantor under the Guaranty is primary, absolute and unconditional, is a continuing guaranty, and shall remain in force at all times hereafter, until all of Newco's obligations hereunder have been satisfied in full. Guarantor hereby waives notice, presentment, demand, protest and notice of dishonor of any of the liabilities or obligations guaranteed hereby, and hereby waives any failure to promptly commence suit against any party or to give any notice to or make any claim or demand upon Newco. Guarantor further agrees that this Cherokee Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment, or any part thereof, by Newco is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy or reorganization of Newco, or otherwise, all as though such payment had not been made. Guarantor agrees that sufficiently in advance of Closing it shall make such calls for capital contributions from its general and limited partners, and take such other actions necessary, to ensure that Guarantor has sufficient cash funds at Closing to fully fund its obligations under this Section 5.16. This Guaranty shall inure to the benefit of the Company and each shareholder entitled to receive the Per Share Merger Consideration on a pro rata basis. There shall be no duty or obligation upon the Company or its shareholders (i) violate or result in a default or breach (immediately or with the passage of time) under any contract, agreement or instrument to proceed against Newcowhich Cherokee is a party or by which Cherokee is bound, (ii) to initiate violate or result in a default or breach under any proceeding order, decree, award, injunction, judgment, law, regulation or exhaust rule, (iii) cause or result in the imposition or creation of any remedy against Newcolien upon any property of Cherokee, or (iiiiv) violate or result in a breach of the articles of incorporation or by-laws of Cherokee; (b) Cherokee has the full power and capacity to give any notice to Newco enter into and perform under the Cherokee Guaranty, which has been authorized by all necessary corporate action on behalf of Cherokee; (c) no consent, license or Guarantor, whatsoever, before bringing suitapproval of, or instituting proceedings filing or registration with, any Governmental Authority is necessary for the execution and performance hereof by Cherokee; (d) the Cherokee Guaranty constitutes the valid and binding obligation of any kind against Newco or Guarantor. Until all Cherokee enforceable in accordance with its terms; and (e) the Cherokee Guaranty promotes and furthers the business and interests of Cherokee and the creation of the obligations of Newco under this Agreement have been satisfied hereunder will result in fulldirect financial benefit to Cherokee. Cherokee shall pay or reimburse Buyer on demand for all costs and expenses, Guarantor shall have no right including, without limitation, all court costs and reasonable legal fees and expenses incurred by Buyer at any time to enforce, protect, preserve or subrogation and hereby waives any right to enforce any remedy which Company or defend its shareholders now has or may hereafter have against Newco and any benefit of, and any right to participate in, any security now or hereafter held by Company or its shareholders. All rights and remedies under this Guaranty are cumulative and those granted hereunder are in addition to any rights and remedies available under lawthe Cherokee Guaranty. From the date hereof until the Effective Time, Guarantor shall not take any action that would reasonably be expected to materially, adversely affect its ability to perform its obligations under this Section 5.16. Notwithstanding the foregoing provisions of this Section 5.16, Guarantor's obligation is limited to $1.65 million and will be deemed satisfied in full if Newco pays the termination fee under Section 7.02 or if the Merger is consummated and the Merger Consideration is paid pursuant Section 2.02.[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
Appears in 1 contract
Sources: Asset Purchase Agreement
Guaranty of Performance. Subject to Guarantor, jointly and severally with all other guarantors of the limitations set forth belowLoan, the Guarantor does hereby unconditionally guarantee the payment and performance of all covenants and obligations of Newco under this Agreement including, but not limited to, the obligation irrevocably guarantees to fund the Per Share Merger Consideration pursuant to Section 2.01 hereof and to pay the termination fee contemplated by Section 7.02 hereof, up to a total of $34.65 million (the "Guaranty"). The obligation of Guarantor under the Guaranty is primary, absolute and unconditional, is a continuing guaranty, and shall remain in force at all times hereafter, until all of Newco's obligations hereunder have been satisfied in full. Guarantor hereby waives notice, presentment, demand, protest and notice of dishonor of any of the liabilities or obligations guaranteed hereby, and hereby waives any failure to promptly commence suit against any party or to give any notice to or make any claim or demand upon Newco. Guarantor further agrees that this Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment, or any part thereof, by Newco is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy or reorganization of Newco, or otherwise, all as though such payment had not been made. Guarantor agrees that sufficiently in advance of Closing it shall make such calls Administrative Agent for capital contributions from its general and limited partners, and take such other actions necessary, to ensure that Guarantor has sufficient cash funds at Closing to fully fund its obligations under this Section 5.16. This Guaranty shall inure to the benefit of the Company Lenders the timely performance of 100% of all obligations of Borrower under all of the Loan Documents other than the Principal Indebtedness and each shareholder entitled to receive the Per Share Merger Consideration on a pro rata basis. There shall Other Monetary Obligations, including, without limiting the generality of the foregoing:
(a) that the Improvements will be no duty or obligation upon constructed in accordance with the Company or its shareholders Loan Agreement and with the Plans;
(ib) to proceed against Newcothat the Improvements will be completed, (ii) to initiate lien free, and ready for occupancy, including delivery of any proceeding or exhaust any remedy against Newcopermits, certificates, or governmental approvals required by law or the Loan Agreement, on or before the Completion Date required in the Loan Agreement; and
(iiic) that Borrower will duly and punctually perform and observe all other terms, covenants, and conditions of the Notes, the Deed of Trust, the Loan Agreement, the Environmental Agreement or any other Loan Document, or any Swap Transaction whether according to give the present terms thereof, at any earlier or accelerated date or dates as provided therein, or pursuant to any extension of time or to any change or changes in the terms, covenants, or conditions thereof now or hereafter made or granted. If any of such obligations of Borrower are not complied with, and such failure to comply is continuing, Administrative Agent may, at its option, without notice to Newco Guarantor or anyone else, complete the Improvements either before or after commencement of foreclosure proceedings or before or after exercise of any other right or remedy of Administrative Agent against Borrower or Guarantor, whatsoeverwith such changes or modifications in the Plans as Administrative Agent deems necessary and expend such sums as Administrative Agent, before bringing suitin its sole and absolute discretion, deems necessary or instituting proceedings of any kind against Newco or Guarantor. Until all of advisable to complete the obligations of Newco under this Agreement have been satisfied in fullImprovements, and Guarantor shall have no right or subrogation and hereby waives any right to enforce contest any remedy which Company or its shareholders now has or may hereafter have against Newco such expenditures by Administrative Agent. The amount of any and any benefit of, and any right to participate in, any security now or hereafter held all expenditures made by Company or its shareholders. All rights and remedies under this Guaranty are cumulative and those granted hereunder are in addition to any rights and remedies available under law. From Administrative Agent for the foregoing purposes shall bear interest from the date hereof made until repaid to Administrative Agent, at a rate per annum equal to the Effective Timeinterest rate provided for in the Loan Agreement and, together with such interest, shall be due and payable by Guarantor to Administrative Agent upon demand. Administrative Agent does not have and shall not never have any obligation to complete the Improvements or take any action that would reasonably be expected to materially, adversely affect its ability to perform its other action. The obligations and liability of Guarantor under this Section 5.16. Notwithstanding 3 shall not be limited, restricted or reduced by the foregoing provisions terms of this Section 5.16, Guarantor's obligation is limited to $1.65 million the guaranties set forth in Sections 1 and will be deemed satisfied in full if Newco pays the termination fee under Section 7.02 or if the Merger is consummated and the Merger Consideration is paid pursuant Section 2.022.
Appears in 1 contract
Sources: Guaranty Agreement (MGM Mirage)
Guaranty of Performance. Subject to the limitations set forth below, the Guarantor does additionally hereby unconditionally guarantee and irrevocably guarantees to Administrative Agent and Lenders the payment and timely performance of all covenants and other obligations of Newco Borrower under this Agreement all of the Loan Documents, including, but not limited towithout limiting the generality of the foregoing:
(a) that the tenant improvement work required to be performed by the landlord under any and all leases, both existing and future, of space in the obligation to fund the Per Share Merger Consideration pursuant to Section 2.01 hereof and to pay the termination fee contemplated by Section 7.02 hereof, up to a total of $34.65 million Improvements (the "GuarantyTI Work"). The obligation of Guarantor under ) will be constructed in accordance with such leases and the Guaranty is primaryLoan Agreement; and
(b) that the TI Work will be completed, absolute and unconditional, is a continuing guarantylien free, and shall remain in force at all times hereafterready for occupancy, until all of Newco's obligations hereunder have been satisfied in full. Guarantor hereby waives notice, presentment, demand, protest and notice of dishonor including delivery of any permits, certificates or governmental approvals required by law or the applicable lease, on or before the date required in such lease. If any of the liabilities or such obligations guaranteed herebyof Borrower are not complied with, in any respect whatsoever, and hereby waives any failure to promptly commence suit against any party or to give without the necessity of any notice from Administrative Agent or Lenders to or make any claim or demand upon Newco. Guarantor further agrees that this Guaranty shall continue to be effective or be reinstatedGuarantor, as the case may be, if at any time any payment, or any part thereof, by Newco is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy or reorganization of Newco, or otherwise, all as though such payment had not been made. Guarantor agrees that sufficiently in advance of Closing it shall make such calls for capital contributions from its general and limited partners, and take such other actions necessary, to ensure that Guarantor has sufficient cash funds at Closing to fully fund its obligations under this Section 5.16. This Guaranty shall inure to the benefit of the Company and each shareholder entitled to receive the Per Share Merger Consideration on a pro rata basis. There shall be no duty or obligation upon the Company or its shareholders (i) assume all responsibility for the completion of the TI Work and, at Guarantor's own cost and expense, cause the TI Work to proceed against Newco, be fully completed in accordance with the leases of the Property and the Loan Documents; (ii) to initiate any proceeding or exhaust any remedy against Newco, or pay all bills in connection with the construction of the TI Work; and (iii) indemnify and hold Administrative Agent and Lenders harmless from any and all loss, cost, liability or expense that Administrative Agent and Lenders may suffer by reason of any such non‑compliance. So long as all of such obligations are being performed by Borrower or Guarantor and no Default exists, Lenders will make the Loan proceeds, if any, available under and subject to give any the terms of the Loan Agreement. If after the occurrence of a Default, and without limiting the rights and remedies of Administrative Agent and Lenders, Administrative Agent, in its sole and absolute discretion, is dissatisfied with the progress of construction by Borrower and/or Guarantor, Administrative Agent may, at its option, without notice to Newco Guarantor or Guarantoranyone else, whatsoever, complete the TI Work either before bringing suit, or instituting after commencement of foreclosure proceedings or before or after exercise of any kind against Newco or Guarantor. Until all of the obligations of Newco under this Agreement have been satisfied in full, Guarantor shall have no other right or subrogation remedy of Administrative Agent against Borrower or Guarantor and expend such sums as Administrative Agent, in its sole and absolute discretion, deems necessary or advisable to complete the TI Work, and Guarantor hereby waives any right to enforce contest any remedy which Company or its shareholders now has or may hereafter have against Newco such expenditures by Administrative Agent and/or Lenders. The amount of any and any benefit of, and any right to participate in, any security now or hereafter held all expenditures made by Company or its shareholders. All rights and remedies under this Guaranty are cumulative and those granted hereunder are in addition to any rights and remedies available under law. From Administrative Agent for the foregoing purposes shall bear interest from the date hereof made until repaid to Administrative Agent, at a rate per annum equal to the Effective Timeinterest rate provided for in the Note and, together with such interest, shall be due and payable by Guarantor to Administrative Agent upon demand. Neither Lenders nor Administrative Agent have nor shall not they ever have any obligation to complete the TI Work or take any action that would reasonably be expected to materially, adversely affect its ability to perform its such action. The obligations and liability of Guarantor under this Section 5.16. Notwithstanding 2 shall not be limited or restricted by the foregoing provisions existence of this Section 5.16, Guarantor's obligation is limited to $1.65 million and will be deemed satisfied in full if Newco pays (or any terms of) the termination fee guaranty of payment under Section 7.02 or if the Merger is consummated and the Merger Consideration is paid pursuant Section 2.021.
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Sources: Loan Agreement (Acadia Realty Trust)