Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor or surety other than Payment in Full of the applicable Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, as follows: (a) this Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety; (b) the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default notwithstanding the existence of any dispute between any Borrower and any Secured Party with respect to the existence of such Event of Default; (c) the obligations of each Guarantor hereunder are independent of the obligations of each Borrower and the obligations of any other Guarantor (including any other Guarantor) of the obligations of each Borrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower or any of such other Guarantors and whether or not such Borrower is joined in any such action or actions; (d) payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor’s liability for any portion of the applicable Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor’s covenant to pay a portion of the applicable Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s liability hereunder in respect of the applicable Guaranteed Obligations; (e) any Secured Party, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Obligations; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Obligations and take and hold security for the payment hereof or the Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party in respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party may have against any such security, in each case as such Secured Party in its discretion may determine consistent herewith, the applicable Hedge Agreement, Cash Management Agreement or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower or any security for the Guaranteed Obligations; and (vi) exercise any other rights available to it under the Loan Documents or any Hedge Agreements, Cash Management Agreements or Treasury Transactions; and (f) this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment in Full of the applicable Guaranteed Obligations), including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, any Hedge Agreements, any Cash Management Agreements or any Treasury Transactions, at law, in equity or otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to events of default) hereof, any of the other Loan Documents, any of the Hedge Agreements, Cash Management Agreements or Treasury Transactions or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Obligations, in each case whether or not in accordance with the terms hereof or such Loan Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction or any agreement relating to such other guaranty or security; (iii) the Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full); (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction or from the proceeds of any security for the Guaranteed Obligations, except to the extent such security also serves as Collateral for Indebtedness other than the Guaranteed Obligations) to the payment of Indebtedness other than the Guaranteed Obligations, even though any Secured Party might have elected to apply such payment to any part or all of the Guaranteed Obligations; (v) any Secured Party’s consent to the change, reorganization or termination of the corporate structure or existence of any Group Member and to any corresponding restructuring of the Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Obligations; (vii) any defenses (other than defense of payment or performance in full), set-offs or counterclaims which any Borrower may allege or assert against any Secured Party in respect of the Guaranteed Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or omission, or delay to do any other act, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Obligations.
Appears in 3 contracts
Sources: Credit and Guaranty Agreement (PVH Corp. /De/), Credit and Guaranty Agreement (Phillips Van Heusen Corp /De/), Credit and Guaranty Agreement (Phillips Van Heusen Corp /De/)
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, agrees as follows:
(a) this This Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;collectibility.
(b) the Administrative Agent Guarantied Party may enforce this Guaranty upon the occurrence of an Event of Default under the Credit Agreement notwithstanding the existence of any dispute between any Borrower Company and any Secured Party Beneficiary with respect to the existence of such Event of Default;.
(c) the The obligations of each Guarantor hereunder are independent of the obligations of each Borrower Company under the Loan Documents and the obligations of any other Guarantor guarantor (including any other Guarantor) of the obligations of each BorrowerCompany under the Loan Documents, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower Company or any of such other Guarantors guarantors and whether or not such Borrower Company is joined in any such action or actions;.
(d) payment Payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Guarantied Obligations shall in no way limit, affect, modify or abridge any Guarantor’s liability for any portion of the applicable Guaranteed Guarantied Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent Guarantied Party is awarded a judgment in any suit brought to enforce any Guarantor’s covenant to pay a portion of the applicable Guaranteed Guarantied Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Guarantied Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s liability hereunder in respect of the applicable Guaranteed Guarantied Obligations;.
(e) any Secured PartyAny Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof of this Guaranty or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Guarantied Obligations; , (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Guarantied Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Guarantied Obligations and take and hold security for the payment hereof of this Guaranty or the Guaranteed Guarantied Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Guarantied Obligations, any other guaranties of the Guaranteed Guarantied Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Guarantied Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party Beneficiary in respect hereof of this Guaranty or the Guaranteed Guarantied Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party Beneficiary may have against any such security, in each case as such Secured Party Beneficiary in its discretion may determine consistent herewith, with the applicable Hedge Agreement, Cash Management Credit Agreement or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower Company or any security for the Guaranteed Guarantied Obligations; and (vi) exercise any other rights available to it under the Loan Documents or any Hedge Agreements, Cash Management Agreements or Treasury Transactions; andDocuments.
(f) this This Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations), including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, any Hedge Agreements, any Cash Management Agreements or any Treasury Transactions, at law, in equity or otherwise) with respect to the Guaranteed Guarantied Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Guarantied Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to events of default) hereofof the Credit Agreement, any of the other Loan Documents, any of the Hedge Agreements, Cash Management Agreements or Treasury Transactions Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Guarantied Obligations, in each case whether or not in accordance with the terms hereof of the Credit Agreement or such Loan Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction Document or any agreement relating to such other guaranty or security; (iii) the Guaranteed Guarantied Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full)respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction Documents or from the proceeds of any security for the Guaranteed Obligations, except to the extent such security also serves as Collateral for Indebtedness other than the Guaranteed Guarantied Obligations) to the payment of Indebtedness indebtedness other than the Guaranteed Guarantied Obligations, even though any Secured Party Beneficiary might have elected to apply such payment to any part or all of the Guaranteed Guarantied Obligations; (v) any Secured PartyBeneficiary’s consent to the change, reorganization or termination of the corporate structure or existence of Company or any Group Member of its Subsidiaries and to any corresponding restructuring of the Guaranteed Guarantied Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Guarantied Obligations; (vii) any defenses (other than defense of payment or performance in full)defenses, set-offs or counterclaims which any Borrower Company may allege or assert against any Secured Party Beneficiary in respect of the Guaranteed Guarantied Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other actact or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Guarantied Obligations.
Appears in 3 contracts
Sources: Subsidiary Guaranty, Subsidiary Guaranty (Express Scripts Holding Co.), Subsidiary Guaranty (Express Scripts Holding Co.)
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which that constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment in Full of the applicable Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, agrees as follows:
(a) this Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default notwithstanding the existence of any dispute between any Borrower Company and any Secured Party Beneficiary with respect to the existence of such Event of Default;
(c) the obligations of each Guarantor hereunder are independent of the obligations of each Borrower Company and the obligations of any other Guarantor guarantor (including any other Guarantor) of the obligations of each BorrowerCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower Company or any of such other Guarantors guarantors and whether or not such Borrower Company is joined in any such action or actions;
(d) payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor’s liability for any portion of the applicable Guaranteed Obligations which that has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor’s covenant to pay a portion of the applicable Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s liability hereunder in respect of the applicable Guaranteed Obligations;
(e) any Secured PartyBeneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Obligations; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Obligations and take and hold security for the payment hereof or the Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party Beneficiary in respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party Beneficiary may have against any such security, in each case as such Secured Party Beneficiary in its discretion may determine consistent herewith, the applicable Hedge Agreement, Cash Management Agreement or Treasury Transaction herewith and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower other Credit Party or any security for the Guaranteed Obligations; and (vi) exercise any other rights available to it under the Loan Documents or any Hedge Agreements, Cash Management Agreements or Treasury TransactionsCredit Documents; and
(f) this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment in Full of the applicable Guaranteed Obligations), including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, any Hedge Agreements, any Cash Management Agreements or any Treasury Transactions, Credit Documents at law, in equity or otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure depart from, any of the terms or provisions (including provisions relating to events of default) hereof, any of the other Loan Documents, any of the Hedge Agreements, Cash Management Agreements or Treasury Transactions Credit Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Obligations, in each case whether or not in accordance with the terms hereof or such Loan Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction Credit Document or any agreement relating to such other guaranty or security; (iii) the Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full)respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction Credit Documents or from the proceeds of any security for the Guaranteed Obligations, except to the extent such security also serves as Collateral collateral for Indebtedness indebtedness other than the Guaranteed Obligations) to the payment of Indebtedness indebtedness other than the Guaranteed Obligations, even though any Secured Party Beneficiary might have elected to apply such payment to any part or all of the Guaranteed Obligations; (v) any Secured PartyBeneficiary’s consent to the change, reorganization or termination of the corporate structure or existence of the Company or any Group Member of its Subsidiaries and to any corresponding restructuring of the Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which that secures any of the Guaranteed Obligations; (vii) any defenses (other than defense of payment or performance in full)defenses, set-offs or counterclaims which any Borrower that Company may allege or assert against any Secured Party Beneficiary in respect of the Guaranteed Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other actact or thing, which that may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Obligations.
Appears in 3 contracts
Sources: Credit and Guaranty Agreement (Veritone, Inc.), Credit and Guaranty Agreement (Veritone, Inc.), Credit and Guaranty Agreement (Veritone, Inc.)
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, agrees as follows:
(a) this This Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;collectibility.
(b) the Administrative Collateral Agent may enforce this Guaranty upon the occurrence of an Event of Default Default, notwithstanding the existence of any dispute between any Borrower and any Secured Party Beneficiary with respect to the existence of such Event of Default;.
(c) the The obligations of each Guarantor hereunder are independent of the obligations of each Borrower under the Financing Documents and the obligations of any other Guarantor guarantor (including any other Guarantor) of the obligations of each BorrowerBorrower under the Financing Documents, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower or any of such other Guarantors guarantors and whether or not such Borrower is joined in any such action or actions;.
(d) payment Payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Guarantied Obligations shall in no way limit, affect, modify or abridge any Guarantor’s 's liability for any portion of the applicable Guaranteed Guarantied Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Collateral Agent is awarded a judgment in any suit brought to enforce any Guarantor’s 's covenant to pay a portion of the applicable Guaranteed Guarantied Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Guarantied Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s 's liability hereunder in respect of the applicable Guaranteed Guarantied Obligations;.
(e) any Secured PartyAny Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof of this Guaranty or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s 's liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Guarantied Obligations; , (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Guarantied Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Guarantied Obligations and take and hold security for the payment hereof of this Guaranty or the Guaranteed Guarantied Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Guarantied Obligations, any other guaranties of the Guaranteed Guarantied Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Guarantied Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party Beneficiary in respect hereof of this Guaranty or the Guaranteed Guarantied Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party Beneficiary may have against any such security, in each case as such Secured Party Beneficiary in its discretion may determine consistent herewithwith the applicable Financing Document, the applicable Hedge Agreement, Cash Management Intercreditor Agreement or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower or any security for the Guaranteed Guarantied Obligations; and (vi) exercise any other rights available to it under the Loan Documents or any Hedge Agreements, Cash Management Agreements or Treasury Transactions; andFinancing Documents.
(f) this This Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Financing Documents, any Hedge Agreements, any Cash Management Agreements or any Treasury Transactions, at law, in equity or otherwise) with respect to the Guaranteed Guarantied Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Guarantied Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereofof any Financing Document, any of the other Loan Documents, any of the Hedge Agreements, Cash Management Agreements or Treasury Transactions or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Guarantied Obligations, in each case whether or not in accordance with the terms hereof or such Loan Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction of any Financing Document or any agreement relating to such other guaranty or security; (iii) the Guaranteed Guarantied Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full)respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction Financing Documents or from the proceeds of any security for the Guaranteed Guarantied Obligations, except to the extent such security also serves as Collateral collateral for Indebtedness indebtedness other than the Guaranteed Guarantied Obligations) to the payment of Indebtedness indebtedness other than the Guaranteed Guarantied Obligations, even though any Secured Party Beneficiary might have elected to apply such payment to any part or all of the Guaranteed Guarantied Obligations; (v) any Secured Party’s Beneficiary's consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower or any Group Member of its Subsidiaries and to any corresponding restructuring of the Guaranteed Guarantied Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Guarantied Obligations; (vii) any defenses (other than defense of payment or performance in full)defenses, set-offs or counterclaims which any Borrower may allege or assert against any Secured Party Beneficiary in respect of the Guaranteed Guarantied Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other actact or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Guarantied Obligations.
Appears in 2 contracts
Sources: Subsidiary Guaranty (Total Renal Care Holdings Inc), Subsidiary Guaranty (Total Renal Care Holdings Inc)
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment payment in Full full of the applicable Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, agrees as follows:
(a) this Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default notwithstanding the existence of any dispute between any Borrower Company and any Secured Party Beneficiary with respect to the existence of such Event of Default;
(c) the obligations of each Guarantor hereunder are independent of the obligations of each Borrower Company and the obligations of any other Guarantor guarantor (including any other Guarantor) of the obligations of each BorrowerCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower Company or any of such other Guarantors guarantors and whether or not such Borrower Company is joined in any such action or actions;
(d) payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor’s 's liability for any portion of the applicable Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor’s 's covenant to pay a portion of the applicable Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s 's liability hereunder in respect of the applicable Guaranteed Obligations;
(e) any Secured PartyBeneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s 's liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Obligations; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Obligations and take and hold security for the payment hereof or the Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party Beneficiary in respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party Beneficiary may have against any such security, in each case as such Secured Party Beneficiary in its discretion may determine consistent herewith, herewith or the applicable Hedge Agreement, Cash Management Agreement or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower Company or any security for the Guaranteed Obligations; and (vi) exercise any other rights available to it under the Loan Credit Documents or any the Hedge Agreements, Cash Management Agreements or Treasury Transactions; and
(f) this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment payment in Full full of the applicable Guaranteed Obligations), including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, any Credit Documents or the Hedge Agreements, any Cash Management Agreements or any Treasury Transactions, at law, in equity or otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to events of default) hereof, any of the other Loan Credit Documents, any of the Hedge Agreements, Cash Management Agreements or Treasury Transactions or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Obligations, in each case whether or not in accordance with the terms hereof or such Loan Credit Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction Agreement or any agreement relating to such other guaranty or security; (iii) the Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full)respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, Credit Documents or any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction Agreements or from the proceeds of any security for the Guaranteed Obligations, except to the extent such security also serves as Collateral collateral for Indebtedness indebtedness other than the Guaranteed Obligations) to the payment of Indebtedness indebtedness other than the Guaranteed Obligations, even though any Secured Party Beneficiary might have elected to apply such payment to any part or all of the Guaranteed Obligations; (v) any Secured Party’s Beneficiary's consent to the change, reorganization or termination of the corporate structure or existence of Company or any Group Member of its Subsidiaries and to any corresponding restructuring of the Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Obligations; (vii) any defenses (other than defense of payment or performance in full)defenses, set-offs or counterclaims which any Borrower Company may allege or assert against any Secured Party Beneficiary in respect of the Guaranteed Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other actact or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Obligations.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Amscan Holdings Inc), Credit and Guaranty Agreement (Connetics Corp)
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment payment in Full full of the applicable Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, agrees as follows:
(a) this Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default notwithstanding the existence of any dispute between any Borrower Company and any Secured Party Beneficiary with respect to the existence of such Event of Default;
(c) the obligations of each Guarantor hereunder are independent of the obligations of each Borrower Company and the obligations of any other Guarantor guarantor (including any other Guarantor) of the obligations of each BorrowerCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower Company or any of such other Guarantors guarantors and whether or not such Borrower Company is joined in any such action or actions;
(d) payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor’s 's liability for any portion of the applicable Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor’s 's covenant to pay a portion of the applicable Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s 's liability hereunder in respect of the applicable Guaranteed Obligations;
(e) any Secured PartyBeneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s 's liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Obligations; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Obligations and take and hold security for the payment hereof or the Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of 72 CREDIT AND GUARANTY AGREEMENT such Secured Party Beneficiary in respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party Beneficiary may have against any such security, in each case as such Secured Party Beneficiary in its discretion may determine consistent herewith, herewith or the applicable Hedge Agreement, Cash Management Interest Rate Agreement or Treasury Transaction and Currency Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower Company or any security for the Guaranteed Obligations; and (vi) exercise any other rights available to it under the Loan Credit Documents or any Hedge Interest Rate Agreements and Currency Agreements, Cash Management Agreements or Treasury Transactions; and
(f) this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment payment in Full full of the applicable Guaranteed Obligations), including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, any Hedge Agreements, any Cash Management Agreements Credit Documents or any Treasury TransactionsInterest Rate Agreement or Currency Agreement, at law, in equity or otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to events of default) hereof, any of the other Loan Credit Documents, any of the Hedge Agreements, Cash Management Interest Rate Agreements or Treasury Transactions Currency Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Obligations, in each case whether or not in accordance with the terms hereof or such Loan Credit Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction Interest Rate Agreement or Currency Agreement or any agreement relating to such other guaranty or security; (iii) the Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full)respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, Credit Documents or any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction Interest Rate Agreements or Currency Agreements or from the proceeds of any security for the Guaranteed Obligations, except to the extent such security also serves as Collateral collateral for Indebtedness indebtedness other than the Guaranteed Obligations) to the payment of Indebtedness indebtedness other than the Guaranteed Obligations, even though any Secured Party Beneficiary might have elected to apply such payment to any part or all of the Guaranteed Obligations; (v) any Secured Party’s Beneficiary's consent to the change, reorganization or termination of the corporate structure or existence of Company or any Group Member of its Subsidiaries and to any corresponding restructuring of the Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Obligations; (vii) any defenses (other than defense of payment or performance in full)defenses, set-offs or counterclaims which any Borrower Company may allege or assert against any Secured Party Beneficiary in respect of the Guaranteed Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other actact or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Obligations.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Taleo Corp), Credit and Guaranty Agreement (Taleo Corp)
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, agrees as follows:
(a) this This Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;collectibility.
(b) the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default under the Credit Agreement notwithstanding the existence of any dispute between any Borrower Company and any Secured Party Bank with respect to the existence of such Event of Default;.
(c) the The obligations of each Guarantor hereunder are independent of the obligations of each Borrower Company under the Credit Agreement and the obligations of any other Guarantor guarantor (including any other Guarantor) of the obligations of each BorrowerCompany under the Credit Agreement, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower Company or any of such other Guarantors guarantors and whether or not such Borrower Company is joined in any such action or actions;.
(d) payment Payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Guarantied Obligations shall in no way limit, affect, modify or abridge any Guarantor’s 's liability for any portion of the applicable Guaranteed Guarantied Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor’s 's covenant to pay a portion of the applicable Guaranteed Guarantied Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Guarantied Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s 's liability hereunder in respect of the applicable Guaranteed Guarantied Obligations;.
(e) any Secured PartyAny Bank, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof of this Guaranty or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s 's liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Guarantied Obligations; , (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Guarantied Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Guarantied Obligations and take and hold security for the payment hereof of this Guaranty or the Guaranteed Guarantied Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Guarantied Obligations, any other guaranties of the Guaranteed Guarantied Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Guarantied Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party Bank in respect hereof of this Guaranty or the Guaranteed Guarantied Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party Bank may have against any such security, in each case as such Secured Party Bank in its discretion may determine consistent herewith, with the applicable Hedge Agreement, Cash Management Credit Agreement or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower Company or any security for the Guaranteed Guarantied Obligations; and (vi) exercise any other rights available to it under the Loan Documents or any Hedge Agreements, Cash Management Agreements or Treasury Transactions; andCredit Agreement.
(f) this This Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations), including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, any Hedge Agreements, any Cash Management Agreements or any Treasury TransactionsCredit Agreement, at law, in equity or otherwise) with respect to the Guaranteed Guarantied Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Guarantied Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Loan Documents, any of the Hedge Agreements, Cash Management Agreements or Treasury Transactions Credit Agreement or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Guarantied Obligations, in each case whether or not in accordance with the terms hereof or such Loan Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction of the Credit Agreement or any agreement relating to such other guaranty or security; (iii) the Guaranteed Guarantied Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full)respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction Credit Agreement or from the proceeds of any security for the Guaranteed Guarantied Obligations, except to the extent such security also serves as Collateral collateral for Indebtedness indebtedness other than the Guaranteed Guarantied Obligations) to the payment of Indebtedness indebtedness other than the Guaranteed Guarantied Obligations, even though Agent or any Secured Party Bank might have elected to apply such payment to any part or all of the Guaranteed Guarantied Obligations; (v) any Secured Party’s Bank's consent to the change, reorganization or termination of the corporate structure or existence of Company or the corporate, partnership or limited liability company structure of any Group Member of its Subsidiaries and to any corresponding restructuring of the Guaranteed Guarantied Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Guarantied Obligations; (vii) any defenses (other than defense of payment or performance in full)defenses, set-offs or counterclaims which any Borrower Company may allege or assert against any Secured Party Bank in respect of the Guaranteed Guarantied Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other actact or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Guarantied Obligations.
Appears in 2 contracts
Sources: Credit Agreement (Cb Commercial Real Estate Services Group Inc), Credit Agreement (Cb Richard Ellis Services Inc)
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor or surety other than Payment in Full of the applicable Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, as follows:
(a) this Guaranty is a guaranty of payment when due and not of collectability. This ;
(b) this Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(bc) the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default notwithstanding the existence of any dispute between any the Borrower and any Secured Guaranteed Party with respect to the existence of such Event of Default;
(cd) the obligations of each Guarantor hereunder are independent of the obligations of each the Borrower and the obligations of any other Guarantor guarantor (including any other Guarantor) of the obligations of each the Borrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such the Borrower or any of such other Guarantors guarantors and whether or not such the Borrower is joined in any such action or actions;
(de) payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor’s liability for any portion of the applicable Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor’s covenant to pay a portion of the applicable Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s liability hereunder in respect of the applicable Guaranteed Obligations;
(ef) any Secured Guaranteed Party, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Obligations; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Obligations and take and hold security for the payment hereof or the Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Guaranteed Party in respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Guaranteed Party may have against any such security, in each case as such Secured Guaranteed Party in its discretion may determine consistent herewith, the applicable Hedge Agreement, Cash Management Agreement or Treasury Transaction herewith and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any the Borrower or any security for the Guaranteed Obligations; and (vi) exercise any other rights available to it under the Loan Documents or any Hedge Agreements, Cash Management Agreements or Treasury TransactionsDocuments; and
(fg) this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment in Full of the applicable Guaranteed Obligations), including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, any Hedge Agreements, any Cash Management Agreements or any Treasury Transactions, Documents at law, in equity or otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to events Events of defaultDefault) hereof, any of the other Loan Documents, any of the Hedge Agreements, Cash Management Agreements or Treasury Transactions Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Obligations, in each case whether or not in accordance with the terms hereof or such Loan Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction Document or any agreement relating to such other guaranty or security; (iii) the Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full); (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction Documents or from the proceeds of any security for the Guaranteed Obligations, except to the extent such security also serves as Collateral collateral for Indebtedness other than the Guaranteed Obligations) to the payment of Indebtedness other than the Guaranteed Obligations, even though any Secured Guaranteed Party might have elected to apply such payment to any part or all of the Guaranteed Obligations; (v) any Secured Guaranteed Party’s consent to the change, reorganization or termination of the corporate structure or existence of any Group Member and to any corresponding restructuring of the Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Obligations; (vii) any defenses (other than defense of payment or performance in full), set-offs or counterclaims which any the Borrower may allege or assert against any Secured Guaranteed Party in respect of the Guaranteed Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or omission, or delay to do any other act, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Obligations.
Appears in 2 contracts
Sources: Credit Agreement (PVH Corp. /De/), Credit Agreement (PVH Corp. /De/)
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, agrees as follows:
(a) this This Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;collectibility.
(b) the Administrative Agent Guarantied Party may enforce this Guaranty upon the occurrence of an Event of Default under the Credit Agreement notwithstanding the existence of any dispute between any Borrower Company and any Secured Party Beneficiary with respect to the existence of such Event of Default;.
(c) the The obligations of each Guarantor hereunder are independent of the obligations of each Borrower Company under the Loan Documents and the obligations of any other Guarantor guarantor (including any other Guarantor) of the obligations of each BorrowerCompany under the Loan Documents, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower Company or any of such other Guarantors guarantors and whether or not such Borrower Company is joined in any such action or actions;.
(d) payment Payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Guarantied Obligations shall in no way limit, affect, modify or abridge any Guarantor’s 's liability for any portion of the applicable Guaranteed Guarantied Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent Guarantied Party is awarded a judgment in any suit brought to enforce any Guarantor’s 's covenant to pay a portion of the applicable Guaranteed Guarantied Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Guarantied Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s 's liability hereunder in respect of the applicable Guaranteed Guarantied Obligations;.
(e) any Secured PartyAny Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof of this Guaranty or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s 's liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Guarantied Obligations; , (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Guarantied Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Guarantied Obligations and take and hold security for the payment hereof of this Guaranty or the Guaranteed Guarantied Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Guarantied Obligations, any other guaranties of the Guaranteed Guarantied Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Guarantied Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party Beneficiary in respect hereof of this Guaranty or the Guaranteed Guarantied Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party Beneficiary may have against any such security, in each case as such Secured Party Beneficiary in its discretion may determine consistent herewith, with the applicable Hedge Agreement, Cash Management Credit Agreement or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower Company or any security for the Guaranteed Guarantied Obligations; and (vi) exercise any other rights available to it under the Loan Documents or any Hedge Agreements, Cash Management Agreements or Treasury Transactions; andDocuments.
(f) this This Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations), including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, any Hedge Agreements, any Cash Management Agreements or any Treasury Transactions, at law, in equity or otherwise) with respect to the Guaranteed Guarantied Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Guarantied Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to events of default) hereofof the Credit Agreement, any of the other Loan Documents, any of the Hedge Agreements, Cash Management Agreements or Treasury Transactions Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Guarantied Obligations, in each case whether or not in accordance with the terms hereof of the Credit Agreement or such Loan Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction Document or any agreement relating to such other guaranty or security; (iii) the Guaranteed Guarantied Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full)respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction Documents or from the proceeds of any security for the Guaranteed Obligations, except to the extent such security also serves as Collateral for Indebtedness other than the Guaranteed Obligations) Guarantied Obligations to the payment of Indebtedness indebtedness other than the Guaranteed Guarantied Obligations, even though any Secured Party Beneficiary might have elected to apply such payment to any part or all of the Guaranteed Guarantied Obligations; (v) any Secured Party’s Beneficiary's consent to the change, reorganization or termination of the corporate structure or existence of Company or any Group Member of its Subsidiaries and to any corresponding restructuring of the Guaranteed Guarantied Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Guarantied Obligations; (vii) any defenses (other than defense of payment or performance in full)defenses, set-offs or counterclaims which any Borrower Company may allege or assert against any Secured Party Beneficiary in respect of the Guaranteed Guarantied Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other actact or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Guarantied Obligations.
Appears in 2 contracts
Sources: Credit Agreement (Express Scripts Inc), Subsidiary Guaranty (Express Scripts Inc)
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, agrees as follows:
(a) this This Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;collectibility.
(b) the The Administrative Agent may enforce this Guaranty upon the occurrence and continuance of an Event of Default notwithstanding the existence of any dispute between any Borrower Borrowers and any Secured Party with respect to the existence of such Event of Default;.
(c) the The obligations of each Guarantor hereunder are independent of the obligations of each Borrower Borrowers under the Loan Documents and the obligations of any other Guarantor guarantor (including any other Guarantor) of the obligations of each BorrowerBorrowers under the Loan Documents, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower Borrowers or any of such other Guarantors guarantors and whether or not such Borrower Borrowers is joined in any such action or actions;.
(d) payment Payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Guarantied Obligations shall in no way limit, affect, modify or abridge any Guarantor’s 's liability for any portion of the applicable Guaranteed Guarantied Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor’s 's covenant to pay a portion of the applicable Guaranteed Guarantied Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Guarantied Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s 's liability hereunder in respect of the applicable Guaranteed Guarantied Obligations;.
(e) any Any Secured Party, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof of this Guaranty or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s 's liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Guarantied Obligations; , (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Guarantied Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Guarantied Obligations and take and hold security for the payment hereof of this Guaranty or the Guaranteed Guarantied Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Guarantied Obligations, any other guaranties of the Guaranteed Guarantied Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Guarantied Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party in respect hereof of this Guaranty or the Guaranteed Guarantied Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party may have against any such security, in each case as such Secured Party in its discretion may determine consistent herewith, with the Credit Agreement or the applicable Hedge Agreement, Cash Management Rate Protection Agreement or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower Borrowers or any security for the Guaranteed Guarantied Obligations; and (vi) exercise any other rights available to it under the Loan Documents or any Hedge the Rate Protection Agreements, Cash Management Agreements or Treasury Transactions; and.
(f) this This Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations), including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, any Hedge Agreements, any Cash Management Agreements or any Treasury Transactions, at law, in equity or otherwise) with respect to the Guaranteed Guarantied Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Guarantied Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to events of default) hereof, of any of the other Loan Documents, any of the Hedge Agreements, Cash Management Agreements or Treasury Transactions Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Guarantied Obligations, in each case whether or not in accordance with the terms hereof or of such Loan Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction Document or any agreement relating to such other guaranty or security; (iii) the Guaranteed Guarantied Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full)respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction Documents or from the proceeds of any security for the Guaranteed Guarantied Obligations, except to the extent such security also serves as Collateral collateral for Indebtedness indebtedness other than the Guaranteed Guarantied Obligations) to the payment of Indebtedness indebtedness other than the Guaranteed Guarantied Obligations, even though any Secured Party might have elected to apply such payment to any part or all of the Guaranteed Guarantied Obligations; (v) any Secured Party’s 's consent to the change, reorganization or termination of the corporate structure or existence of Borrowers or any Group Member of their Subsidiaries and to any corresponding restructuring of the Guaranteed Guarantied Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Guarantied Obligations; (vii) any defenses (other than defense of payment or performance in full)defenses, set-offs or counterclaims which any Borrower Borrowers may allege or assert against any Secured Party in respect of the Guaranteed Guarantied Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other actact or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Guarantied Obligations.
Appears in 2 contracts
Sources: Subsidiary Guaranty (Las Vegas Sands Corp), Subsidiary Guaranty (Las Vegas Sands Inc)
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, agrees as follows:
(a) this This Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;collectibility.
(b) the Administrative Agent Guarantied Party may enforce this Guaranty upon the occurrence of an Event of Default under the Credit Agreement notwithstanding the existence of any dispute between any Borrower Company and any Secured Party Beneficiary with respect to the existence of such Event of Default;.
(c) the The obligations of each Guarantor hereunder are independent of the obligations of each Borrower Company under the Loan Documents and the obligations of any other Guarantor guarantor (including any other Guarantor) of the obligations of each BorrowerCompany under the Loan Documents, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower Company or any of such other Guarantors guarantors and whether or not such Borrower Company is joined in any such action or actions;.
(d) payment Payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Guarantied Obligations shall in no way limit, affect, modify or abridge any Guarantor’s 's liability for any portion of the applicable Guaranteed Guarantied Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent Guarantied Party is awarded a judgment in any suit brought to enforce any Guarantor’s 's covenant to pay a portion of the applicable Guaranteed Guarantied Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Guarantied Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s 's liability hereunder in respect of the applicable Guaranteed Guarantied Obligations;.
(e) any Secured PartyAny Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof of this Guaranty or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s 's liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Guarantied Obligations; , (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Guarantied Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Guarantied Obligations and take and hold security for the payment hereof of this Guaranty or the Guaranteed Guarantied Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Guarantied Obligations, any other guaranties of the Guaranteed Guarantied Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Guarantied Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party Beneficiary in respect hereof of this Guaranty or the Guaranteed Guarantied Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party Beneficiary may have against any such security, in each case as such Secured Party Beneficiary in its discretion may determine consistent herewith, with the applicable Hedge Agreement, Cash Management Credit Agreement or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower Company or any security for the Guaranteed Guarantied Obligations; and (vi) exercise any other rights available to it under the Loan Documents or any Hedge Agreements, Cash Management Agreements or Treasury Transactions; andDocuments.
(f) this This Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations), including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, any Hedge Agreements, any Cash Management Agreements or any Treasury Transactions, at law, in equity or otherwise) with respect to the Guaranteed Guarantied Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Guarantied Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to events of default) hereofof the Credit Agreement, any of the other Loan Documents, any of the Hedge Agreements, Cash Management Agreements or Treasury Transactions Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Guarantied Obligations, in each case whether or not in accordance with the terms hereof of the Credit Agreement or such Loan Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction Document or any agreement relating to such other guaranty or security; (iii) the Guaranteed Guarantied Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full)respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction Documents or from the proceeds of any security for the Guaranteed Obligations, except to the extent such security also serves as Collateral for Indebtedness other than the Guaranteed Guarantied Obligations) to the payment of Indebtedness indebtedness other than the Guaranteed Guarantied Obligations, even though any Secured Party Beneficiary might have elected to apply such payment to any part or all of the Guaranteed Guarantied Obligations; (v) any Secured Party’s Beneficiary's consent to the change, reorganization or termination of the corporate structure or existence of Company or any Group Member of its Subsidiaries and to any corresponding restructuring of the Guaranteed Guarantied Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Guarantied Obligations; (vii) any defenses (other than defense of payment or performance in full)defenses, set-offs or counterclaims which any Borrower Company may allege or assert against any Secured Party Beneficiary in respect of the Guaranteed Guarantied Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other actact or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Guarantied Obligations.
Appears in 2 contracts
Sources: Subsidiary Guaranty (Express Scripts Inc), Subsidiary Guaranty (Express Scripts Inc)
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, agrees as follows; provided, that nothing contained herein shall amend, contradict or alter any rights or obligations that any Guarantor, the Borrower, any Lender or the Guarantied Party may have under the Credit Agreement or any other Credit Document or any term or provision thereof:
(a) this This Guaranty is a guaranty of payment and performance when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;collectibility.
(b) the Administrative Agent Guarantied Party may enforce this Guaranty upon the occurrence of an Event of Default under the Credit Agreement notwithstanding the existence of any dispute between any the Borrower and any Secured Party Beneficiary with respect to the existence of such Event of Default;.
(c) the The obligations of each Guarantor hereunder are independent of the obligations of each the Borrower under the Credit Documents and the obligations of any other Guarantor guarantor (including any other Guarantor) of the obligations of each Borrowerthe Borrower under the Credit Documents, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such the Borrower or any of such other Guarantors guarantors and whether or not such Guarantor is the alter ego of the Borrower and whether or not the Borrower is joined in any such action or actions;.
(d) payment Payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Guarantied Obligations shall in no way limit, affect, modify or abridge any Guarantor’s 's liability for any portion of the applicable Guaranteed Guarantied Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent Guarantied Party is awarded a judgment in any suit brought to enforce any Guarantor’s 's covenant to pay a portion of the applicable Guaranteed Guarantied Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Guarantied Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s 's liability hereunder in respect of the applicable Guaranteed Guarantied Obligations;.
(e) any Secured PartyAny Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof of this Guaranty or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s 's liability hereunder, from time to time may (i) renew, extend, accelerate, increase the principal amount of and/or the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Guarantied Obligations; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Guarantied Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Guarantied Obligations and take and hold security for the payment hereof of this Guaranty or the Guaranteed Guarantied Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Guarantied Obligations, any other guaranties of the Guaranteed Guarantied Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Guarantied Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party Beneficiary in respect hereof of this Guaranty or the Guaranteed Guarantied Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party Beneficiary may have against any such security, in each case as such Secured Party Beneficiary in its discretion may determine consistent herewith, with the applicable Hedge Agreement, Cash Management Credit Agreement or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against the Borrower or any Borrower other Guarantor or any security for the Guaranteed Guarantied Obligations; and (vi) exercise any other rights available to it under the Loan Documents or any Hedge Agreements, Cash Management Agreements or Treasury Transactions; andCredit Documents.
(f) this This Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations), including including, without limitation, the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge Knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Credit Documents, any Hedge Agreements, any Cash Management Agreements or any Treasury Transactions, at law, in equity or otherwise) with respect to the Guaranteed Guarantied Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Guarantied Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including including, without limitation, provisions relating to events Events of defaultDefault) hereofof the Credit Agreement, any of the other Loan Documents, any of the Hedge Agreements, Cash Management Agreements or Treasury Transactions Credit Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Guarantied Obligations, in each case whether or not in accordance with the terms hereof of the Credit Agreement or such Loan Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction Credit Document or any agreement relating to such other guaranty or security; (iii) the Guaranteed Guarantied Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full)respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction Credit Documents or from the proceeds of any security for the Guaranteed Guarantied Obligations, except to the extent such security also serves as Collateral collateral for Indebtedness indebtedness other than the Guaranteed Guarantied Obligations) to the payment of Indebtedness indebtedness other than the Guaranteed Guarantied Obligations, even though any Secured Party Beneficiary might have elected to apply such payment to any part or all of the Guaranteed Guarantied Obligations; (v) any Secured Party’s Beneficiary's consent to the change, reorganization or termination of the corporate structure or existence of the Borrower or any Group Member of its Subsidiaries and to any corresponding restructuring of the Guaranteed Guarantied Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Guarantied Obligations; (vii) any defenses (other than defense of payment or performance in full)defenses, set-offs or counterclaims which any the Borrower may allege or assert against any Secured Party Beneficiary in respect of the Guaranteed Guarantied Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other actact or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Guarantied Obligations.
(g) Should a Guarantor become insolvent, fail to pay its debts generally as they become due, voluntarily seek, consent to, or acquiesce in the benefits of any debtor relief law or become a party to or be made the subject of any proceeding provided for by any debtor relief law (other than as a creditor or claimant) that could suspend or otherwise adversely affect the rights of Beneficiaries hereunder, then, the Guarantied Obligations shall be, as between such Guarantor and the Beneficiaries, a fully matured, due, and payable obligation of the Guarantor to the Beneficiaries, payable in full by the Guarantor to the Beneficiaries upon demand, which obligations shall be an amount equal to the estimated amount owing in respect of the contingent claim created hereunder as reasonably estimated by the Beneficiaries unless the petition or application described above which was filed or commenced against the Guarantor is dismissed within 60 days from the date of filing.
Appears in 1 contract
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, agrees as follows:
(a) this This Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;collectibility.
(b) the Administrative Agent Any Beneficiary may enforce this Guaranty upon a default by the occurrence Issuer in the performance of an Event of Default its obligations under any Program Document notwithstanding the existence of any dispute between any Borrower the Issuer and any Secured Party Beneficiary with respect to the existence of such Event of Default;default.
(c) the The obligations of each Guarantor hereunder are independent of the obligations of each Borrower the Issuer under the Program Documents and the obligations of any other Guarantor guarantor (including any other Guarantor) of the obligations of each Borrowerthe Issuer under the Program Documents, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower the Issuer or any of such other Guarantors guarantors and whether or not such Borrower the Issuer is joined in any such action or actions;.
(d) payment Payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Guarantied Obligations shall in no way limit, affect, modify or abridge any Guarantor’s liability for any portion of the applicable Guaranteed Guarantied Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent any Beneficiary is awarded a judgment in any suit brought to enforce any Guarantor’s covenant to pay a portion of the applicable Guaranteed Guarantied Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Guarantied Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s liability hereunder in respect of the applicable Guaranteed Guarantied Obligations;.
(e) any Secured PartyAny Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof of this Guaranty or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from time to time may may
(i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Guarantied Obligations; ;
(ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Guarantied Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; ;
(iii) request and accept other guaranties of the Guaranteed Guarantied Obligations and take and hold security for the payment hereof of this Guaranty or the Guaranteed Guarantied Obligations; ;
(iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Guarantied Obligations, any other guaranties of the Guaranteed Guarantied Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Guarantied Obligations; ;
(v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party Beneficiary in respect hereof of this Guaranty or the Guaranteed Guarantied Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party Beneficiary may have against any such security, in each case as such Secured Party Beneficiary in its discretion may determine consistent herewith, with the applicable Hedge Agreement, Cash Management Agreement or Treasury Transaction Program Documents and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower the Issuer or any security for the Guaranteed Guarantied Obligations; and and
(vi) exercise any other rights available to it under the Loan Documents or any Hedge Agreements, Cash Management Agreements or Treasury Transactions; andProgram Documents.
(f) this This Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations), including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: :
(i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Program Documents, any Hedge Agreements, any Cash Management Agreements or any Treasury Transactions, at law, in equity or otherwise) with respect to the Guaranteed Guarantied Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Guarantied Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to events of default) hereof, of any of the other Loan Documents, any of the Hedge Agreements, Cash Management Agreements or Treasury Transactions Program Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Guarantied Obligations, in each case whether or not in accordance with the terms hereof or of such Loan Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction Program Document or any agreement relating to such other guaranty or security; (iii) the Guaranteed Guarantied Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full)respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction Program Documents or from the proceeds of any security for the Guaranteed Obligations, except to the extent such security also serves as Collateral for Indebtedness other than the Guaranteed Guarantied Obligations) to the payment of Indebtedness indebtedness other than the Guaranteed Guarantied Obligations, even though any Secured Party a Beneficiary might have elected to apply such payment to any part or all of the Guaranteed Guarantied Obligations; (v) any Secured Partya Beneficiary’s consent to the change, reorganization or termination of the corporate structure or existence of the Issuer or any Group Member of its subsidiaries and to any corresponding restructuring of the Guaranteed Guarantied Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Guarantied Obligations; (vii) any defenses (other than defense of payment or performance in full)defenses, set-offs or counterclaims which any Borrower the Issuer may allege or assert against any Secured Party Beneficiary in respect of the Guaranteed Guarantied Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other actact or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Guarantied Obligations.
Appears in 1 contract
Sources: Commercial Paper Dealer Agreement (Express Scripts Holding Co.)
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment payment in Full full in cash of the applicable Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, agrees as follows:
(a) this Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default notwithstanding the existence of any dispute between any Borrower Company and any Secured Party Beneficiary with respect to the existence of such Event of Default;
(c) the obligations of each Guarantor hereunder are independent of the obligations of each Borrower Company and the obligations of any other Guarantor guarantor (including any other Guarantor) of the obligations of each BorrowerCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower Company or any of such other Guarantors guarantors and whether or not such Borrower Company is joined in any such action or actions;
(d) payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor’s liability for any portion of the applicable Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor’s covenant to pay a portion of the applicable Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s liability hereunder in respect of the applicable Guaranteed Obligations;
(e) any Secured PartyBeneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Obligations; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Obligations and take and hold security for the payment hereof or the Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party Beneficiary in respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party Beneficiary may have against any such security, in each case as such Secured Party Beneficiary in its discretion may determine consistent herewith, herewith or the applicable Hedge Agreement, Cash Management Interest Rate Agreement or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower Company or any security for the Guaranteed Obligations; and (vi) exercise any other rights available to it under the Loan Credit Documents or any Hedge Interest Rate Agreements, Cash Management Agreements or Treasury Transactions; and
(f) this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment payment in Full full in cash of the applicable Guaranteed Obligations), including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, any Hedge Agreements, any Cash Management Agreements Credit Documents or any Treasury TransactionsInterest Rate Agreement, at law, in equity or otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to events of default) hereof, any of the other Loan Credit Documents, any of the Hedge Agreements, Cash Management Interest Rate Agreements or Treasury Transactions or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Obligations, in each case whether or not in accordance with the terms hereof or such Loan Credit Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction Interest Rate Agreement or any agreement relating to such other guaranty or security; (iii) the Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full)respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, Credit Documents or any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction Interest Rate Agreements or from the proceeds of any security for the Guaranteed Obligations, except to the extent such security also serves as Collateral collateral for Indebtedness indebtedness other than the Guaranteed Obligations) to the payment of Indebtedness indebtedness other than the Guaranteed Obligations, even though any Secured Party Beneficiary might have elected to apply such payment to any part or all of the Guaranteed Obligations; (v) any Secured PartyBeneficiary’s consent to the change, reorganization or termination of the corporate structure or existence of Holdings or any Group Member of its Subsidiaries and to any corresponding restructuring of the Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Obligations; (vii) any defenses (other than defense of payment or performance in full)defenses, set-offs or counterclaims which any Borrower Company may allege or assert against any Secured Party Beneficiary in respect of the Guaranteed Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other actact or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Obligations.
Appears in 1 contract
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, that its obligations hereunder are irrevocable, absolute, independent and unconditional unconditional, constitute primary obligations of such Guarantor and not a contract of surety to the maximum extent permitted by law, and to the extent permitted by applicable law shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment payment in Full full of the applicable Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, agrees as follows:
(a) this Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default notwithstanding the existence of any dispute between any Borrower and any Secured Party with respect to the existence of such Event of Default;
(c) the obligations of each Guarantor hereunder are independent of the obligations of each Borrower and the obligations of any other Guarantor guarantor (including any other Guarantor) of the obligations of each Borrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower or any of such other Guarantors guarantors and whether or not such Borrower is joined in any such action or actions;
(dc) payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor’s 's liability for any portion of the applicable Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor’s 's covenant to pay a portion of the applicable Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s 's liability hereunder in respect of the applicable Guaranteed Obligations;
(ed) any Secured PartyBeneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s 's liability hereunder, from time to time may may:
(i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Obligations; ;
(ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; ;
(iii) request and accept other guaranties of the Guaranteed Obligations and take and hold security for the payment hereof or the Guaranteed Obligations; ;
(iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Obligations; ;
(v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party Beneficiary in respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party Beneficiary may have against any such security, in each case as such Secured Party Beneficiary in its discretion may determine consistent herewith, herewith or the applicable Hedge Agreement, Cash Management Agreement or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower or any security for the Guaranteed Obligations; and and
(vi) exercise any other rights available to it under the Loan Credit Documents or any the Hedge Agreements, Cash Management Agreements or Treasury Transactions; and
(fe) this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and to the extent permitted by applicable law shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment payment in Full full of the applicable Guaranteed Obligations), including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: :
(i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, any Credit Documents or the Hedge Agreements, any Cash Management Agreements or any Treasury Transactions, at law, in equity or otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Obligations; ;
(ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to events of default) hereof, any of the other Loan Credit Documents, any of the Hedge Agreements, Cash Management Agreements or Treasury Transactions or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Obligations, in each case whether or not in accordance with the terms hereof or such Loan Credit Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction Agreement or any agreement relating to such other guaranty or security; security (provided that no Credit Document to which such Guarantor is a party may be amended without its written consent);
(iii) the Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full); respect;
(iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, Credit Documents or any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction Agreements or from the proceeds of any security for the Guaranteed Obligations, except to the extent such security also serves as Collateral collateral for Indebtedness indebtedness other than the Guaranteed Obligations) to the payment of Indebtedness indebtedness other than the Guaranteed Obligations, even though any Secured Party Beneficiary might have elected to apply such payment to any part or all of the Guaranteed Obligations; ;
(v) any Secured Party’s Beneficiary's consent to the change, reorganization or termination of the corporate structure or existence of Holdings or any Group Member of its Subsidiaries and to any corresponding restructuring of the Guaranteed Obligations; ;
(vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Obligations; ;
(vii) any defenses (other than defense of payment or performance in full)defenses, set-offs or counterclaims which any Borrower may allege or assert against any Secured Party Beneficiary in respect of the Guaranteed Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and and
(viii) any other act or thing or omission, or delay to do any other actact or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Obligations.
Appears in 1 contract
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, agrees as follows:
(a) this This Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;collectibility.
(b) the Administrative Agent Guarantied Party may enforce this Guaranty upon the occurrence of an Event of Default under the Credit Agreement or the occurrence of an Early Termination Date (as defined in a Master Agreement or an Interest Rate Swap Agreement or Interest Rate and Currency Exchange Agreement in the form prepared by the International Swap and Derivatives Association Inc. or a similar event under any similar swap agreement) under any Lender Interest Rate Agreement (either such occurrence being an "EVENT OF DEFAULT" for purposes of this Guaranty) notwithstanding the existence of any dispute between any Borrower Company and any Secured Party Beneficiary with respect to the existence of such Event of Default;.
(c) the The obligations of each Guarantor hereunder are independent of the obligations of each Borrower Company under the Loan Documents or the Lender Interest Rate Agreements and the obligations of any other Guarantor guarantor (including any other Guarantor) of the obligations of each BorrowerCompany under the Loan Documents or the Lender Interest Rate Agreements, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower Company or any of such other Guarantors guarantors and whether or not such Borrower Company is joined in any such action or actions;.
(d) payment Payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Guarantied Obligations shall in no way limit, affect, modify or abridge any Guarantor’s 's liability for any portion of the applicable Guaranteed Guarantied Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent Guarantied Party is awarded a judgment in any suit brought to enforce any Guarantor’s 's covenant to pay a portion of the applicable Guaranteed Guarantied Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Guarantied Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s 's liability hereunder in respect of the applicable Guaranteed Guarantied Obligations;.
(e) any Secured PartyAny Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof of this Guaranty or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s 's liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Guarantied Obligations; , (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Guarantied Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Obligations and take and hold security for the payment hereof or the Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party in respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party may have against any such security, in each case as such Secured Party in its discretion may determine consistent herewith, the applicable Hedge Agreement, Cash Management Agreement or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower or any security for the Guaranteed Obligations; and (vi) exercise any other rights available to it under the Loan Documents or any Hedge Agreements, Cash Management Agreements or Treasury Transactions; and
(f) this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment in Full of the applicable Guaranteed Obligations), including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, any Hedge Agreements, any Cash Management Agreements or any Treasury Transactions, at law, in equity or otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to events of default) hereof, any of the other Loan Documents, any of the Hedge Agreements, Cash Management Agreements or Treasury Transactions or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Obligations, in each case whether or not in accordance with the terms hereof or such Loan Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction or any agreement relating to such other guaranty or security; (iii) the Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full); (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction or from the proceeds of any security for the Guaranteed Obligations, except to the extent such security also serves as Collateral for Indebtedness other than the Guaranteed Obligations) to the payment of Indebtedness other than the Guaranteed Obligations, even though any Secured Party might have elected to apply such payment to any part or all of the Guaranteed Obligations; (v) any Secured Party’s consent to the change, reorganization or termination of the corporate structure or existence of any Group Member and to any corresponding restructuring of the Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Obligations; (vii) any defenses (other than defense of payment or performance in full), set-offs or counterclaims which any Borrower may allege or assert against any Secured Party in respect of the Guaranteed Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or omission, or delay to do any other act, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Obligations.any
Appears in 1 contract
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor or surety other than Payment in Full of the applicable Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, as follows:
(a) this Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default notwithstanding the existence of any dispute between any Borrower and any Secured Party with respect to the existence of such Event of Default;
(c) the obligations of each Guarantor hereunder are independent of the obligations of each Borrower and the obligations of any other Guarantor (including any other Guarantor) of the obligations of each Borrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower or any of such other Guarantors and whether or not such Borrower is joined in any such action or actions;
(d) payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor’s liability for any portion of the applicable Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor’s covenant to pay a portion of the applicable Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s liability hereunder in respect of the applicable Guaranteed Obligations;
(e) any Secured Party, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Obligations; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Obligations and take and hold security for the payment hereof or the Guaranteed Obligations; (iv) release, surrender, exchange, substitute, | || compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party in respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party may have against any such security, in each case as such Secured Party in its discretion may determine consistent herewith, the applicable Hedge Agreement, Cash Management Agreement or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower or any security for the Guaranteed Obligations; and (vi) exercise any other rights available to it under the Loan Documents or any Hedge Agreements, Cash Management Agreements or Treasury Transactions; and
(f) this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment in Full of the applicable Guaranteed Obligations), including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, any Hedge Agreements, any Cash Management Agreements or any Treasury Transactions, at law, in equity or otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to events of default) hereof, any of the other Loan Documents, any of the Hedge Agreements, Cash Management Agreements or Treasury Transactions or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Obligations, in each case whether or not in accordance with the terms hereof or such Loan Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction or any agreement relating to such other guaranty or security; (iii) the Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full); (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction or from the proceeds of any security for the Guaranteed Obligations, except to the extent such security also serves as Collateral for Indebtedness other than the Guaranteed Obligations) to the payment of Indebtedness other than the Guaranteed Obligations, even though any Secured Party might have elected to apply such payment to any part or all of the Guaranteed Obligations; (v) any Secured Party’s consent to the change, reorganization or termination of the corporate structure or existence of any Group Member and to any corresponding restructuring of the Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Obligations; (vii) any defenses (other than | || defense of payment or performance in full), set-offs or counterclaims which any Borrower may allege or assert against any Secured Party in respect of the Guaranteed Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or omission, or delay to do any other act, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Obligations.
Appears in 1 contract
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment satisfaction in Full full of the applicable Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, agrees as follows:
(a) this Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) to the extent permitted by applicable law, the Administrative Agent may enforce this Guaranty Guarantee upon the occurrence of an Event of Default notwithstanding the existence of any dispute between any Borrower and any Secured Party with respect to the existence of such Event of Default;
(cb) the obligations of each Guarantor hereunder are independent of the obligations of each the Borrower and the obligations of any other Guarantor (including any other Guarantor) of the obligations of each BorrowerCredit Party, and a separate action or actions may be brought and prosecuted against such each Guarantor whether or not any action is brought against such the Borrower or any of such other Guarantors Credit Party and whether or not the Borrower or such Borrower Credit Party is joined in any such action or actions;
(dc) payment by any a Guarantor of a portion, but not all, of the applicable Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor’s liability for any portion of the applicable Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent is awarded a judgment in any suit brought to enforce any a Guarantor’s covenant to pay a portion of the applicable Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other such Guarantor’s liability hereunder in respect of the applicable Guaranteed Obligations;
(ed) any Secured Party, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Obligations; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties guarantees of the Guaranteed Obligations and take and hold security for the payment hereof or the Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Obligations, any other guaranties guarantees of the Guaranteed Obligations, or any other obligation of any Person (including any other GuarantorCredit Party) with respect to the Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party in respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party may have against any such security, in each case as such Secured Party in its discretion may determine consistent herewith, with the applicable Hedge Agreement, Cash Management Agreement or Treasury Transaction and any applicable security agreementCredit Documents, including foreclosure on any such security pursuant to one or more judicial or nonjudicial non-judicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement reimbursement, subrogation or subrogation contribution or other right or remedy of any Guarantor against any Borrower other Credit Party or any security for the Guaranteed Obligations; and (vi) exercise any other rights available to it under the Loan Documents or any Hedge Agreements, Cash Management Agreements or Treasury TransactionsCredit Document; and
(f) and this Guaranty Guarantee and the obligations of Guarantors each Guarantor hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment payment in Full full of the applicable Guaranteed Obligations), including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Credit Documents, any Hedge Agreements, any Cash Management Agreements or any Treasury Transactions, at law, in equity or otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty guarantee of or security for the payment or performance of the Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to events of default) hereof, any of the other Loan Documents, any of the Hedge Agreements, Cash Management Agreements or Treasury Transactions Credit Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty guarantee or security for the Guaranteed Obligations, in each case whether or not in accordance with the terms hereof or such Loan Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction Credit Document or any agreement relating to such other guaranty guarantee or security; (iii) the Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full)respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction Credit Documents or from the proceeds of any security for the Guaranteed Obligations, except to the extent such security also serves as Collateral collateral for Indebtedness indebtedness other than the Guaranteed Obligations) to the payment of Indebtedness indebtedness other than the Guaranteed Obligations, even though any Secured Party might have elected to apply such payment to any part or all of the Guaranteed Obligations; (v) any Secured Party’s Party s consent to the change, reorganization or termination of the corporate structure or existence of any Group Member Credit Party and to any corresponding restructuring of the Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Obligations; (vii) to the extent permitted by applicable law, any defenses (other than defense of payment or performance in full)defenses, set-offs or counterclaims which any the Borrower may allege or assert against any Secured Party in respect of the Guaranteed Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other actact or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Obligations.
Appears in 1 contract
Sources: Revolving Credit and Guarantee Agreement (Mogo Inc.)
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which that constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment in Full of the applicable Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, agrees as follows:
(a) this Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) the Administrative Collateral Agent may enforce this Guaranty upon the occurrence of an Event of Default notwithstanding the existence of any dispute between any Borrower Company and any Secured Party Beneficiary with respect to the existence of such Event of Default;
(c) the obligations of each Guarantor hereunder are independent of the obligations of each Borrower Company and the obligations of any other Guarantor guarantor (including any other Guarantor) of the obligations of each BorrowerCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower Company or any of such other Guarantors guarantors and whether or not such Borrower Company is joined in any such action or actions;
(d) payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor’s liability for any portion of the applicable Guaranteed Obligations which that has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent any Beneficiary is awarded a judgment in any suit brought to enforce any Guarantor’s covenant to pay a portion of the applicable Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s liability hereunder in respect of the applicable Guaranteed Obligations;
(e) any Secured PartyBeneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Obligations; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Obligations and take and hold security for the payment hereof or the Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party Beneficiary in respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party Beneficiary may have against any such security, in each case as such Secured Party Beneficiary in its discretion may determine consistent herewith, the applicable Hedge Agreement, Cash Management Agreement herewith or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower other Note Party or any security for the Guaranteed Obligations; and (vi) exercise any other rights available to it under the Loan Documents or any Hedge Agreements, Cash Management Agreements or Treasury TransactionsNote Documents; and
(f) this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment in Full of the applicable Guaranteed Obligations), including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Note Documents, any Hedge Agreements, any Cash Management Agreements or any Treasury Transactions, at law, in equity or otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure depart from, any of the terms or provisions (including provisions relating to events of default) hereof, any of the other Loan Note Documents, any of the Hedge Agreements, Cash Management Agreements or Treasury Transactions or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Obligations, in each case whether or not in accordance with the terms hereof or such Loan Note Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction or any agreement relating to such other guaranty or security; (iii) the Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full)respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction Note Documents or from the proceeds of any security for the Guaranteed Obligations, except to the extent such security also serves as Collateral collateral for Indebtedness indebtedness other than the Guaranteed Obligations) to the payment of Indebtedness indebtedness other than the Guaranteed Obligations, even though any Secured Party Beneficiary might have elected to apply such payment to any part or all of the Guaranteed Obligations; (v) any Secured PartyBeneficiary’s consent to the change, reorganization or termination of the corporate structure or existence of Company or any Group Member of its Subsidiaries and to any corresponding restructuring of the Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which that secures any of the Guaranteed Obligations; (vii) any defenses (other than defense of payment or performance in full)defenses, set-offs set‑offs or counterclaims which any Borrower that Company may allege or assert against any Secured Party Beneficiary in respect of the Guaranteed Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other actact or thing, which that may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Obligations.
Appears in 1 contract
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, agrees as follows:
(a) this This Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;collectibility.
(b) the Administrative Agent Guarantied Party may enforce this Guaranty upon the occurrence of an Event of Default under the Credit Agreement notwithstanding the existence of any dispute between any Borrower Company and any Secured Party Beneficiary with respect to the existence of such Event of Default;.
(c) the The obligations of each Guarantor hereunder are independent of the obligations of each Borrower Company under the Loan Documents or the Lender Interest Rate Agreements and the obligations of any other Guarantor guarantor (including any other Guarantor) of the obligations of each BorrowerCompany under the Loan Documents or the Lender Interest Rate Agreements, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower Company or any of such other Guarantors guarantors and whether or not such Borrower Company is joined in any such action or actions;.
(d) payment Payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Guarantied Obligations shall in no way limit, affect, modify or abridge any Guarantor’s 's liability for any portion of the applicable Guaranteed Guarantied Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent Guarantied Party is awarded a judgment in any suit brought to enforce any Guarantor’s 's covenant to pay a portion of the applicable Guaranteed Guarantied Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Guarantied Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s 's liability hereunder in respect of the applicable Guaranteed Guarantied Obligations;.
(e) any Secured PartyAny Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof of this Guaranty or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s 's liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Guarantied Obligations; , (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Guarantied Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Guarantied Obligations and take and hold security for the payment hereof of this Guaranty or the Guaranteed Guarantied Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Guarantied Obligations, any other guaranties of the Guaranteed Guarantied Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Guarantied Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party Beneficiary in respect hereof of this Guaranty or the Guaranteed Guarantied Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party Beneficiary may have against any such security, in each case as such Secured Party Beneficiary in its discretion may determine consistent herewith, with the Credit Agreement or the applicable Hedge Agreement, Cash Management Lender Interest Rate Agreement or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower Company or any security for the Guaranteed Guarantied Obligations; and (vi) exercise any other rights available to it under the Loan Documents or any Hedge the Lender Interest Rate Agreements, Cash Management Agreements or Treasury Transactions; and.
(f) this This Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations), including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, any Hedge Documents or the Lender Interest Rate Agreements, any Cash Management Agreements or any Treasury Transactions, at law, in equity or otherwise) with respect to the Guaranteed Guarantied Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Guarantied Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to events of default) hereofof the Credit Agreement, any of the other Loan Documents, any of the Hedge Agreements, Cash Management Lender Interest Rate Agreements or Treasury Transactions or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Guarantied Obligations, in each case whether or not in accordance with the terms hereof of the Credit Agreement or such Loan Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction Lender Interest Rate Agreement or any agreement relating to such other guaranty or security; (iii) the Guaranteed Guarantied Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full)respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, Documents or any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction Lender Interest Rate Agreements or from the proceeds of any security for the Guaranteed Guarantied Obligations, except to the extent such security also serves as Collateral collateral for Indebtedness indebtedness other than the Guaranteed Guarantied Obligations) to the payment of Indebtedness indebtedness other than the Guaranteed Guarantied Obligations, even though any Secured Party Beneficiary might have elected to apply such payment to any part or all of the Guaranteed Guarantied Obligations; (v) any Secured Party’s Beneficiary's consent to the change, reorganization or termination of the corporate structure or existence of Company or any Group Member of its Subsidiaries and to any corresponding restructuring of the Guaranteed Guarantied Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Guarantied Obligations; (vii) any defenses (other than defense of payment or performance in full)defenses, set-offs or counterclaims which any Borrower Company may allege or assert against any Secured Party Beneficiary in respect of the Guaranteed Guarantied Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other actact or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Guarantied Obligations.
Appears in 1 contract
Sources: Subsidiary Guaranty (Sandhills Inc)
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment payment in Full full of the applicable Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, agrees as follows:
(a) this Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default notwithstanding the existence of any dispute between any Borrower Company and any Secured Party Beneficiary with respect to the existence of such Event of Default;
(c) the obligations of each Guarantor hereunder are independent of the obligations of each Borrower Company and the obligations of any other Guarantor guarantor (including any other Guarantor) of the obligations of each BorrowerCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower Company or any of such other Guarantors guarantors and whether or not such Borrower Company is joined in any such action or actions;
(d) payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor’s 's liability for any portion of the applicable Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor’s 's covenant to pay a portion of the applicable Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s 's liability hereunder in respect of the applicable Guaranteed Obligations;; FIRST LIEN CREDIT AND GUARANTY AGREEMENT 824323-New York Server 7A EXECUTION
(e) any Secured PartyBeneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s 's liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Obligations; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Obligations and take and hold security for the payment hereof or the Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party Beneficiary in respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party Beneficiary may have against any such security, in each case as such Secured Party Beneficiary in its discretion may determine consistent herewith, herewith or the applicable Hedge Agreement, Cash Management Agreement or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower Company or any security for the Guaranteed Obligations; and (vi) exercise any other rights available to it under the Loan Credit Documents or any the Hedge Agreements, Cash Management Agreements or Treasury Transactions; and
(f) this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment payment in Full full of the applicable Guaranteed Obligations), including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, any Credit Documents or the Hedge Agreements, any Cash Management Agreements or any Treasury Transactions, at law, in equity or otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to events of default) hereof, any of the other Loan Credit Documents, any of the Hedge Agreements, Cash Management Agreements or Treasury Transactions or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Obligations, in each case whether or not in accordance with the terms hereof or such Loan Credit Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction Agreement or any agreement relating to such other guaranty or security; (iii) the Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full)respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, Credit Documents or any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction Agreements or from the proceeds of any security for the Guaranteed Obligations, except to the extent such security also serves as Collateral collateral for Indebtedness indebtedness other than the Guaranteed Obligations) to the FIRST LIEN CREDIT AND GUARANTY AGREEMENT 824323-New York Server 7A EXECUTION payment of Indebtedness indebtedness other than the Guaranteed Obligations, even though any Secured Party Beneficiary might have elected to apply such payment to any part or all of the Guaranteed Obligations; (v) any Secured Party’s Beneficiary's consent to the change, reorganization or termination of the corporate structure or existence of Holdings or any Group Member of its Subsidiaries and to any corresponding restructuring of the Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Obligations; (vii) any defenses (other than defense of payment or performance in full)defenses, set-offs or counterclaims which any Borrower Company may allege or assert against any Secured Party Beneficiary in respect of the Guaranteed Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other actact or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Obligations.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (American Reprographics CO)
Liability of Guarantors Absolute. Each Guarantor agrees that, to To the maximum extent permitted by applicable lawLaw, each Guarantor agrees that its obligations Obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment payment in Full full of the U.S. Guaranteed Obligations (other than (i) contingent indemnification obligations as to which no claim has been asserted, (ii) Guaranteed Obligations under Secured Hedge Agreements and Secured Cash Management Agreements and (iii) the Outstanding Amount of L/C Obligations related to any Letter of Credit that has been Cash Collateralized, backstopped by a letter of credit reasonably satisfactory to the applicable Guaranteed ObligationsL/C Issuer or deemed reissued under another agreement reasonably acceptable to the applicable L/C Issuer). In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable lawLaw, each Guarantor agrees as follows:
(a) this Guaranty Agreement is a guaranty of payment when due and not of collectability. This Guaranty Agreement is a primary obligation of each Guarantor and not merely a contract of surety;
(b) the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default notwithstanding the existence of any dispute between any Borrower and any Secured Party with respect to the existence of such Event of Default[reserved];
(c) the obligations of each Guarantor hereunder are independent of the obligations of each Borrower and the obligations of any other Guarantor (including any other Guarantor) of the obligations of each Borrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower or any of such other Guarantors and whether or not such Borrower is joined in any such action or actions;
(d) payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor’s liability for any portion of the applicable Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor’s covenant to pay a portion of the applicable Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s liability hereunder in respect of the applicable Guaranteed Obligations;
(ed) any Secured Party, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from time to time may may, subject to compliance with the provisions of Section 3.02 and similar provisions governing amendments and waivers in any other Credit Document, (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Obligations; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Obligations and take and hold security for the payment hereof or the Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party in respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party may have against any such security, in each case as such Secured Party in its discretion may determine consistent herewith, herewith or the applicable Secured Hedge Agreement, Agreement or Secured Cash Management Agreement or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower or any security for the Guaranteed Obligations; and (vi) exercise any other rights available to it under the Loan Credit Documents or any Secured Hedge Agreements, Agreements or Secured Cash Management Agreements or Treasury TransactionsAgreements; and
(fe) this Guaranty Agreement and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment payment in Full full of the Guaranteed Obligations (other than (i) contingent indemnification obligations as to which no claim has been asserted, (ii) Guaranteed Obligations under Secured Hedge Agreements and Secured Cash Management Agreements and (iii) the Outstanding Amount of L/C Obligations related to any Letter of Credit that has been Cash Collateralized, backstopped by a letter of credit reasonably satisfactory to the applicable Guaranteed ObligationsL/C Issuer or deemed reissued under another agreement reasonably acceptable to the applicable L/C Issuer)), including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, Credit Documents or any Secured Hedge Agreements, any Agreements or Secured Cash Management Agreements or any Treasury TransactionsAgreements, at law, in equity or otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to events of default) hereof, any of the other Loan Credit Documents, any of the Secured Hedge Agreements, Agreements or Secured Cash Management Agreements or Treasury Transactions or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Obligations, in each case whether or not in accordance with the terms hereof or such Loan Credit Document, such Secured Hedge Agreement, such Agreement or Secured Cash Management Agreement, such Treasury Transaction Agreement or any agreement relating to such other guaranty or securitysecurity (provided, that except as expressly provided therein, no Credit Document to which any Guarantor is a party may be amended or otherwise modified without the consent of such Guarantor); (iii) the Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full)respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, Credit Documents or any of the Secured Hedge Agreements, any of the Agreements or Secured Cash Management Agreements, any Treasury Transaction Agreements or from the proceeds of any security for the Guaranteed Obligations, except to the extent such security also serves as Collateral collateral for Indebtedness indebtedness other than the Guaranteed Obligations) to the payment of Indebtedness indebtedness other than the Guaranteed Obligations, even though any Secured Party might have elected to apply such payment to any part or all of the Guaranteed Obligations; (v) any Secured Party’s consent to the change, reorganization or termination of the corporate structure or existence of Holdings or any Group Member of its Restricted Subsidiaries and to any corresponding restructuring of the Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Obligations; (vii) any defenses (other than defense of payment or performance in full)defenses, set-offs or counterclaims which any Borrower may allege or assert against any Secured Party in respect of the Guaranteed Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other actact or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Obligations.
Appears in 1 contract
Liability of Guarantors Absolute. Each The Guarantor agrees that, to the maximum extent permitted by applicable law, that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment in Full of the applicable Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each the Guarantor agrees, to the maximum extent permitted by applicable law, agrees as follows:
(a) this Guaranty is This Guarantee constitutes a guaranty Guarantee of payment and performance when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;collection.
(b) the The Administrative Agent acting on behalf of the Canadian Lender and the other Guaranteed Parties may enforce this Guaranty Guarantee upon the occurrence of an Event of Default under the Loan Documents notwithstanding the existence of any dispute between the [other] Canadian Borrowers and the Administrative Agent or any Borrower and any Secured Guaranteed Party with respect to the existence of such Event of Default;.
(c) the The obligations of each the Guarantor hereunder are is independent of the obligations of each Borrower the [other] Canadian Borrowers under the Loan Documents and the obligations of any other Guarantor (including any other Guarantor) guarantor of the obligations of each Borrowerthe [other] Canadian Borrowers under the Loan Documents, and a separate action or actions may be brought and prosecuted against such the Guarantor to enforce this Guarantee, irrespective of whether or not any action is brought against such Borrower the [other] Canadian Borrowers or any of such other Guarantors and Loan Party or whether the [other] Canadian Borrowers or not such Borrower any other Loan Party is joined in any such action or actions;.
(d) payment Payment by any the Guarantor of a portion, but not all, of the applicable Guaranteed Obligations shall in no way limit, affect, modify or abridge any the Guarantor’s liability for any portion of the applicable Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent or any Guaranteed Party is awarded a judgment in any suit brought to enforce any the Guarantor’s covenant to pay a portion of the applicable Guaranteed Obligations, such judgment shall not be deemed to release such the Guarantor from its covenant to pay the portion of the applicable Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s liability hereunder in respect of the applicable Guaranteed Obligations;.
(e) any Secured Party, The Administrative Agent and the Guaranteed Parties upon such terms as it deems they deem appropriate, without notice or demand and without affecting the validity or enforceability hereof of this Guarantee or giving rise to any reduction, limitation, impairment, discharge or termination of any the Guarantor’s liability hereunder, from time to time time, may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Obligations; , (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; , (iii) request and accept other guaranties of the Guaranteed Obligations and take and hold security for the payment hereof or the Guaranteed Obligations; , (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation of any Person (including any other Guarantorguarantor) with respect to the Guaranteed Obligations; , (v) enforce and apply take, hold, exchange, enforce, waive, release, fail to protect, sell or other dispose of any security now or hereafter held by or for the benefit payment of such Secured Party in respect hereof or the Guaranteed Obligations Obligations, (vi) apply such security and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party thereof as the Administrative Agent may have against any such security, in each case as such Secured Party determine in its sole discretion may determine consistent herewith, the applicable Hedge Agreement, Cash Management Agreement or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower or any security for the Guaranteed Obligations; and (vivii) exercise any other rights available to it them under the Loan Documents Documents. Without limiting the generality of the foregoing, the Guarantor consents to the taking of, or failure to take, any Hedge Agreementsaction which might in any manner or to any extent vary the risks of the Guarantor under this Guarantee or which, Cash Management Agreements or Treasury Transactions; andbut for this provision, might operate as a discharge of the Guarantor.
(f) this Guaranty This Guarantee and the obligations of Guarantors the Guarantor hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment in Full of the applicable Guaranteed Obligations), including the occurrence of any of the following, whether or not any the Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or an agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, any Hedge Agreements, any Cash Management Agreements or any Treasury Transactions, at law, in equity or otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty guarantee of or security for the payment of the Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to events of default) hereof, any of the other Loan Documents, any of the Hedge Agreements, Cash Management Agreements or Treasury Transactions Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security guarantee for the Guaranteed Obligations, in each case whether or not in accordance with the terms hereof or such of the Loan Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction Documents or any agreement relating to such other guaranty or securityguarantee; (iii) the Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full)respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction or from the proceeds of any security for the Guaranteed Obligations, except to the extent such security also serves as Collateral for Indebtedness other than the Guaranteed Obligations) to the payment of Indebtedness indebtedness of the [other] Canadian Borrowers other than the Guaranteed Obligations, even though the Administrative Agent or any Secured Guaranteed Party might have elected to apply such payment to any part or all of the Guaranteed Obligations; (v) the Administrative Agent’s or any Secured Guaranteed Party’s consent to the change, reorganization or termination of the corporate structure or existence of any Group Member [other] Canadian Borrower and to any corresponding restructuring of the Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Obligations; (vii) any defenses (other than defense of payment or performance in full)defenses, set-offs or counterclaims which any Borrower the [other] Canadian Borrowers may allege or assert against the Administrative Agent or any Secured Guaranteed Party in respect of the Guaranteed Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viiivii) any other act or thing or omission, or delay to do any other actact or thing, which may or might in any manner or to any extent vary the risk of any the Guarantor as an obligor in respect of the Guaranteed Obligations.
Appears in 1 contract
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, agrees as follows:
(a) this This Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;collectibility.
(b) the Administrative Agent Guarantied Party may enforce this Guaranty upon the occurrence of an Event of Default under the Credit Agreement or the occurrence of an Early Termination Date (as defined in a Master Agreement or an Interest Rate Swap Agreement or Interest Rate and Currency Exchange Agreement in the form prepared by the International Swap and Derivatives Association Inc. or a similar event under any similar swap agreement) under any Lender Interest Rate Agreement (either such occurrence being an "Event of Default" for purposes of this Guaranty) notwithstanding the existence of any dispute between any Borrower Company and any Secured Party Beneficiary with respect to the existence of such Event of Default;.
(c) the The obligations of each Guarantor hereunder are independent of the obligations of each Borrower Company under the Loan Documents or the Lender Interest Rate Agreements and the obligations of any other Guarantor guarantor (including any other Guarantor) of the obligations of each BorrowerCompany under the Loan Documents or the Lender Interest Rate Agreements, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower Company or any of such other Guarantors guarantors and whether or not such Borrower Company is joined in any such action or actions;.
(d) payment Payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Guarantied Obligations shall in no way limit, affect, modify or abridge any Guarantor’s 's liability for any portion of the applicable Guaranteed Guarantied Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent Guarantied Party is awarded a judgment in any suit brought to enforce any Guarantor’s 's covenant to pay a portion of the applicable Guaranteed Guarantied Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Guarantied Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s 's liability hereunder in respect of the applicable Guaranteed Guarantied Obligations;.
(e) any Secured PartyAny Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof of this Guaranty or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s 's liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Guarantied Obligations; , (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Guarantied Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Guarantied Obligations and take and hold security for the payment hereof of this Guaranty or the Guaranteed Guarantied Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Guarantied Obligations, any other guaranties of the Guaranteed Guarantied Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Guarantied Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party Beneficiary in respect hereof of this Guaranty or the Guaranteed Guarantied Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party Beneficiary may have against any such security, in each case as such Secured Party Beneficiary in its discretion may determine consistent herewith, with the Credit Agreement or the applicable Hedge Agreement, Cash Management Lender Interest Rate Agreement or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower Company or any security for the Guaranteed Guarantied Obligations; and (vi) exercise any other rights available to it under the Loan Documents or any Hedge the Lender Interest Rate Agreements, Cash Management Agreements or Treasury Transactions; and.
(f) this This Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations), including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, any Hedge Documents the Lender Interest Rate Agreements, any Cash Management Agreements or any Treasury Transactions, at law, in equity or otherwise) with respect to the Guaranteed Guarantied Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Guarantied Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereofof the Credit Agreement, any of the other Loan Documents, any of the Hedge Agreements, Cash Management Lender Interest Rate Agreements or Treasury Transactions or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Guarantied Obligations, in each case whether or not in accordance with the terms hereof of the Credit Agreement or such Loan Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction Lender Interest Rate Agreement or any agreement relating to such other guaranty or security; (iii) the Guaranteed Guarantied Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full)respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, Documents or any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction Lender Interest Rate Agreements or from the proceeds of any security for the Guaranteed Guarantied Obligations, except to the extent such security also serves as Collateral collateral for Indebtedness indebtedness other than the Guaranteed Guarantied Obligations) to the payment of Indebtedness indebtedness other than the Guaranteed Guarantied Obligations, even though any Secured Party Beneficiary might have elected to apply such payment to any part or all of the Guaranteed Guarantied Obligations; (v) any Secured Party’s Beneficiary's consent to the change, reorganization or termination of the corporate structure or existence of Company or any Group Member of its Subsidiaries and to any corresponding restructuring of the Guaranteed Guarantied Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Guarantied Obligations; (vii) any defenses (other than defense of payment or performance in full)defenses, set-offs or counterclaims which any Borrower Company may allege or assert against any Secured Party Beneficiary in respect of the Guaranteed Guarantied Obligations, including including, but not limited to, failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other actact or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor obliger in respect of the Guaranteed Guarantied Obligations.
Appears in 1 contract
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment payment in Full full of the applicable Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, agrees as follows:
(a) this This Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;collectibility.
(b) the Administrative Agent Guaranteed Party may enforce this Guaranty upon the occurrence of an Event of Default under the Credit Agreement notwithstanding the existence of any dispute between any Borrower Company and any Secured Party Beneficiary with respect to the existence of such Event of Default;.
(c) the The obligations of each Guarantor hereunder are independent of the obligations of each Borrower Company under the Loan Documents and the obligations of any other Guarantor guarantor (including any other Guarantor) of the obligations of each BorrowerCompany under the Loan Documents, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower Company or any of such other Guarantors guarantors and whether or not such Borrower Company is joined in any such action or actions;.
(d) payment Payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor’s 's liability for any portion of the applicable Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent Guaranteed Party is awarded a judgment in any suit brought to enforce any Guarantor’s 's covenant to pay a portion of the applicable Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s 's liability hereunder in respect of the applicable Guaranteed Obligations;.
(e) any Secured PartyAny Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof of this Guaranty or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s 's liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Obligations; , (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Obligations and take and hold security for the payment hereof of this Guaranty or the Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party Beneficiary in respect hereof of this Guaranty or the Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party Beneficiary may have against any such security, in each case as such Secured Party Beneficiary in its discretion may determine consistent herewith, with the applicable Hedge Agreement, Cash Management Credit Agreement or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower Company or any security for the Guaranteed Obligations; and (vi) exercise any other rights available to it under the Loan Documents or any Hedge Agreements, Cash Management Agreements or Treasury Transactions; andDocuments.
(f) this This Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment payment in Full full of the applicable Guaranteed Obligations), including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, any Hedge Agreements, any Cash Management Agreements or any Treasury Transactions, at law, in equity or otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to events of default) hereofof the Credit Agreement, any of the other Loan Documents, any of the Hedge Agreements, Cash Management Agreements or Treasury Transactions Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Obligations, in each case whether or not in accordance with the terms hereof of the Credit Agreement or such Loan Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction Document or any agreement relating to such other guaranty or security; (iii) the Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full)respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction Documents or from the proceeds of any security for the Guaranteed Obligations, except to the extent such security also serves as Collateral for Indebtedness other than the Guaranteed Obligations) to the payment of Indebtedness indebtedness other than the Guaranteed Obligations, even though any Secured Party Beneficiary might have elected to apply such payment to any part or all of the Guaranteed Obligations; (v) any Secured Party’s Beneficiary's consent to the change, reorganization or termination of the corporate structure or existence of Company or any Group Member of its Subsidiaries and to any corresponding restructuring of the Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Obligations; (vii) any defenses (other than defense of payment or performance in full)defenses, set-offs or counterclaims which any Borrower Company may allege or assert against any Secured Party Beneficiary in respect of the Guaranteed Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other actact or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Obligations.
Appears in 1 contract
Sources: Senior Subordinated Subsidiary Guaranty (Express Scripts Inc)
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, agrees as follows; provided, that nothing contained herein shall amend, contradict or alter any rights or obligations that any Guarantor, any Borrower, any Lender or the Guarantied Party may have under the Credit Agreement or any other Credit Document or any term or provision thereof:
(a) this This Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;collectibility.
(b) the Administrative Agent Guarantied Party may enforce this Guaranty upon the occurrence of an Event of Default under the Credit Agreement notwithstanding the existence of any dispute between any Borrower and any Secured Party Beneficiary with respect to the existence of such Event of Default;.
(c) the The obligations of each Guarantor hereunder are independent of the obligations of each Borrower Borrowers under the Credit Documents and the obligations of any other Guarantor guarantor (including any other Guarantor) of the obligations of each BorrowerBorrowers under the Credit Documents, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower Borrowers or any of such other Guarantors guarantors and whether or not such Guarantor is the alter ego of any of the Borrowers and whether or not any Borrower is joined in any such action or actions;.
(d) payment Payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Guarantied Obligations shall in no way limit, affect, modify or abridge any Guarantor’s 's liability for any portion of the applicable Guaranteed Guarantied Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent Guarantied Party is awarded a judgment in any suit brought to enforce any Guarantor’s 's covenant to pay a portion of the applicable Guaranteed Guarantied Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Guarantied Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s 's liability hereunder in respect of the applicable Guaranteed Guarantied Obligations;.
(e) any Secured PartyAny Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof of this Guaranty or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s 's liability hereunder, from time to time may (i) renew, extend, accelerate, increase the principal amount of and/or the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Guarantied Obligations; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Guarantied Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Guarantied Obligations and take and hold security for the payment hereof of this Guaranty or the Guaranteed Guarantied Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Guarantied Obligations, any other guaranties of the Guaranteed Guarantied Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Guarantied Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party Beneficiary in respect hereof of this Guaranty or the Guaranteed Guarantied Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party Beneficiary may have against any such security, in each case as such Secured Party Beneficiary in its discretion may determine consistent herewith, with the applicable Hedge Agreement, Cash Management Credit Agreement or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower or any other Guarantor or any security for the Guaranteed Guarantied Obligations; and (vi) exercise any other rights available to it under the Loan Documents or any Hedge Agreements, Cash Management Agreements or Treasury Transactions; andCredit Documents.
(f) this This Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations), including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Credit Documents, any Hedge Agreements, any Cash Management Agreements or any Treasury Transactions, at law, in equity or otherwise) with respect to the Guaranteed Guarantied Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Guarantied Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereofof the Credit Agreement, any of the other Loan Documents, any of the Hedge Agreements, Cash Management Agreements or Treasury Transactions Credit Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Guarantied Obligations, in each case whether or not in accordance with the terms hereof of the Credit Agreement or such Loan Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction Credit Document or any agreement relating to such other guaranty or security; (iii) the Guaranteed Guarantied Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full)respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction Credit Documents or from the proceeds of any security for the Guaranteed Guarantied Obligations, except to the extent such security also serves as Collateral collateral for Indebtedness indebtedness other than the Guaranteed Guarantied Obligations) to the payment of Indebtedness indebtedness other than the Guaranteed Guarantied Obligations, even though any Secured Party Beneficiary might have elected to apply such payment to any part or all of the Guaranteed Guarantied Obligations; (v) any Secured Party’s Beneficiary's consent to the change, reorganization or termination of the corporate structure or existence of any Group Member Borrower or any of such Borrower's Subsidiaries and to any corresponding restructuring of the Guaranteed Guarantied Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Guarantied Obligations; (vii) any defenses (other than defense of payment or performance in full)defenses, set-offs or counterclaims which any Borrower may allege or assert against any Secured Party Beneficiary in respect of the Guaranteed Guarantied Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other actact or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Guarantied Obligations.
(g) Should a Guarantor become insolvent, fail to pay its debts generally as they become due, voluntarily seek, consent to, or acquiesce in the benefits of any debtor relief law or become a party to or be made the subject of any proceeding provided for by any debtor relief law (other than as a creditor or claimant) that could suspend or otherwise adversely affect the rights of Beneficiaries hereunder, then, the Guarantied Obligations shall be, as between such Guarantor and the Beneficiaries, a fully matured, due, and payable obligation of the Guarantor to the Beneficiaries, payable in full by the Guarantor to the Beneficiaries upon demand, which obligations shall be an amount equal to the estimated amount owing in respect of the contingent claim created hereunder as reasonably estimated by the Beneficiaries unless the petition or application described above which was filed or commenced against the Guarantor is dismissed within 60 days from the date of filing.
Appears in 1 contract
Sources: Credit Agreement (Mediabay Inc)
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, agrees as follows:
(a) this This Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;collectibility.
(b) the The Administrative Agent may enforce this Guaranty upon the occurrence and continuance of an Event of Default notwithstanding the existence of any dispute between any Borrower Borrowers and any Secured Party with respect to the existence of such Event of Default;.
(c) the The obligations of each Guarantor hereunder are independent of the obligations of each Borrower Borrowers under the Loan Documents and the obligations of any other Guarantor guarantor (including any other Guarantor) of the obligations of each BorrowerBorrowers under the Loan Documents, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower Borrowers or any of such other Guarantors guarantors and whether or not such Borrower Borrowers is joined in any such action or actions;.
(d) payment Payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Guarantied Obligations shall in no way limit, affect, modify or abridge any Guarantor’s liability for any portion of the applicable Guaranteed Guarantied Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor’s covenant to pay a portion of the applicable Guaranteed Guarantied Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Guarantied Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s liability hereunder in respect of the applicable Guaranteed Guarantied Obligations;.
(e) any Any Secured Party, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof of this Guaranty or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Guarantied Obligations; , (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Guarantied Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Guarantied Obligations and take and hold security for the payment hereof of this Guaranty or the Guaranteed Guarantied Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Guarantied Obligations, any other guaranties of the Guaranteed Guarantied Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Guarantied Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party in respect hereof of this Guaranty or the Guaranteed Guarantied Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party may have against any such security, in each case as such Secured Party in its discretion may determine consistent herewith, with the Credit Agreement or the applicable Hedge Agreement, Cash Management Rate Protection Agreement or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower Borrowers or any security for the Guaranteed Guarantied Obligations; and (vi) exercise any other rights available to it under the Loan Documents or any Hedge the Rate Protection Agreements, Cash Management Agreements or Treasury Transactions; and.
(f) this This Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations), including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, any Hedge Agreements, any Cash Management Agreements or any Treasury Transactions, at law, in equity or otherwise) with respect to the Guaranteed Guarantied Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Guarantied Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to events of default) hereof, of any of the other Loan Documents, any of the Hedge Agreements, Cash Management Agreements or Treasury Transactions Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Guarantied Obligations, in each case whether or not in accordance with the terms hereof or of such Loan Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction Document or any agreement relating to such other guaranty or security; (iii) the Guaranteed Guarantied Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full)respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction Documents or from the proceeds of any security for the Guaranteed Guarantied Obligations, except to the extent such security also serves as Collateral collateral for Indebtedness indebtedness other than the Guaranteed Guarantied Obligations) to the payment of Indebtedness indebtedness other than the Guaranteed Guarantied Obligations, even though any Secured Party might have elected to apply such payment to any part or all of the Guaranteed Guarantied Obligations; (v) any Secured Party’s consent to the change, reorganization or termination of the corporate structure or existence of Borrowers or any Group Member of their Subsidiaries and to any corresponding restructuring of the Guaranteed Guarantied Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Guarantied Obligations; (vii) any defenses (other than defense of payment or performance in full)defenses, set-offs or counterclaims which any Borrower Borrowers may allege or assert against any Secured Party in respect of the Guaranteed Guarantied Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other actact or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Guarantied Obligations.
Appears in 1 contract
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor or surety other than Payment in Full of the applicable Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, as follows:
(a) this Guaranty is a guaranty of payment when due and not of collectability. This ;
(b) this Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(bc) the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default notwithstanding the existence of any dispute between any Borrower and any Secured Party with respect to the existence of such Event of Default;
(cd) the obligations of each Guarantor hereunder are independent of the obligations of each Borrower and the obligations of any other Guarantor guarantor (including any other Guarantor) of the obligations of each Borrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower or any of such other Guarantors guarantors and whether or not such Borrower is joined in any such action or actions;
(de) payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor’s liability for any portion of the applicable Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor’s covenant to pay a portion of the applicable Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s liability hereunder in respect of the applicable Guaranteed Obligations;
(ef) any Secured Party, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Obligations; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Obligations and take and hold security for the payment hereof or the Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party in respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party may have against any such security, in each case as such Secured Party in its discretion may determine consistent herewith, the applicable Hedge Agreement, Cash Management Agreement or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower or any security for the Guaranteed Obligations; and (vi) exercise any other rights available to it under the Loan Documents or any Hedge Agreements, Cash Management Agreements or Treasury Transactions; and
(fg) this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment in Full of the applicable Guaranteed Obligations), including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, any Hedge Agreements, any Cash Management Agreements or any Treasury Transactions, at law, in equity or otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to events of default) hereof, any of the other Loan Documents, any of the Hedge Agreements, Cash Management Agreements or Treasury Transactions or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Obligations, in each case whether or not in accordance with the terms hereof or such Loan Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction or any agreement relating to such other guaranty or security; (iii) the Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full); (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction or from the proceeds of any security for the Guaranteed Obligations, except to the extent such security also serves as Collateral for Indebtedness other than the Guaranteed Obligations) to the payment of Indebtedness other than the Guaranteed Obligations, even though any Secured Party might have elected to apply such payment to any part or all of the Guaranteed Obligations; (v) any Secured Party’s consent to the change, reorganization or termination of the corporate structure or existence of any Group Member and to any corresponding restructuring of the Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Obligations; (vii) any defenses (other than defense of payment or performance in full), set-offs set‑offs or counterclaims which any Borrower may allege or assert against any Secured Party in respect of the Guaranteed Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or omission, or delay to do any other act, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Obligations.
Appears in 1 contract
Sources: Credit Agreement (PVH Corp. /De/)
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, that its obligations hereunder are irrevocable, absolute, independent and unconditional unconditional, and constitute primary obligations of such Guarantor and not a contract of surety to the maximum extent permitted by law and to the extent permitted by applicable law shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment payment in Full full of the applicable Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, agrees as follows:
(a) this Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default notwithstanding the existence of any dispute between any Borrower and any Secured Party with respect to the existence of such Event of Default;
(c) the obligations of each Guarantor hereunder are independent of the obligations of each Borrower the Company and the obligations of any other Guarantor guarantor (including any other Guarantor) of the obligations of each Borrowerthe Company, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower the Company or any of such other Guarantors guarantors and whether or not such Borrower the Company is joined in any such action or actions;; CREDIT AND GUARANTY AGREEMENT EXECUTION
(dc) payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor’s liability for any portion of the applicable Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor’s covenant to pay a portion of the applicable Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s liability hereunder in respect of the applicable Guaranteed Obligations;
(ed) any Secured PartyBeneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Obligations; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Obligations and take and hold security for the payment hereof or the Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed ObligationsObligations (provided that no Credit Document to which such Guarantor is a party may be amended without its written consent); (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party Beneficiary in respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party Beneficiary may have against any such security, in each case as such Secured Party Beneficiary in its discretion may determine consistent herewith, herewith or the applicable Hedge Agreement, Cash Management Agreement or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower the Company or any security for the Guaranteed Obligations; and (vi) exercise any other rights available to it under the Loan Credit Documents or any the Hedge Agreements, Cash Management Agreements or Treasury Transactions; and
(fe) this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and to the extent permitted by applicable law shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment payment in Full full of the applicable Guaranteed Obligations), including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, any Credit Documents or the Hedge Agreements, any Cash Management Agreements or any Treasury Transactions, at law, in equity or otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the CREDIT AND GUARANTY AGREEMENT EXECUTION payment of the Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to events of default) hereof, any of the other Loan Credit Documents, any of the Hedge Agreements, Cash Management Agreements or Treasury Transactions or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Obligations, in each case whether or not in accordance with the terms hereof or such Loan Credit Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction Agreement or any agreement relating to such other guaranty or security; (iii) the Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full)respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, Credit Documents or any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction Agreements or from the proceeds of any security for the Guaranteed Obligations, except to the extent such security also serves as Collateral collateral for Indebtedness indebtedness other than the Guaranteed Obligations) to the payment of Indebtedness indebtedness other than the Guaranteed Obligations, even though any Secured Party Beneficiary might have elected to apply such payment to any part or all of the Guaranteed ObligationsObligations (provided that no Credit Document to which such Guarantor is a party may be amended without its written consent); (v) any Secured PartyBeneficiary’s consent to the change, reorganization or termination of the corporate structure or existence of Holdings or any Group Member of its Subsidiaries and to any corresponding restructuring of the Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Obligations; (vii) any defenses (other than defense of payment or performance in full)defenses, set-offs or counterclaims which any Borrower the Company may allege or assert against any Secured Party Beneficiary in respect of the Guaranteed Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other actact or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Obligations.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Bell Powersports, Inc.)
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, that its obligations hereunder are irrevocable, absolute, independent and unconditional and and, to the extent permitted by applicable law, shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment payment in Full full in Cash of the applicable Guaranteed ObligationsObligations (other than contingent obligations not yet due and owing). In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, agrees as follows:
(a) this Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default notwithstanding the existence of any dispute between any Borrower and any Secured Party Beneficiary with respect to the existence of such Event of Default;
(c) the obligations of each Guarantor hereunder are independent of the obligations of each Borrower and the obligations obligation of any other Guarantor guarantor (including any other Guarantor) of the obligations of each Borrower, Borrower and a separate action or actions may be brought and prosecuted against such any other Guarantor whether or not any action is brought against such Borrower or any of such other Guarantors guarantors and whether or not such Borrower is joined in any such action or actions;
(d) payment by any Guarantor Person (including any other Guarantor) of a portion, but not all, of the applicable Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor’s liability for any portion of the applicable Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor’s covenant to pay a portion of the applicable Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s liability hereunder in respect of the applicable full unpaid amount of Guaranteed Obligations;
(e) any Secured Partypayment by Borrower or other circumstance which operates to toll any statute of limitations as to Borrower shall operate to toll the statute of limitations as to the Guarantors;
(f) any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof or giving rise in any way to any reduction, limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from time to time may may:
(i) renew, extend, accelerate, increase the principal amount of, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Obligations; Obligations in accordance with the terms of the underlying Credit Documents (including, without limitation, any amendment thereto, consent to departure therefrom, or waiver thereof);
(ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; ;
(iii) request and accept other guaranties of the Guaranteed Obligations and take and hold security for the payment hereof or the Guaranteed Obligations; ;
(iv) in accordance with the terms of the underlying Credit Documents (including any amendment thereto, consent to departure therefrom, or waiver thereof), release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Obligations; ;
(v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party Beneficiary in respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party Beneficiary may have against any such security, in each case case, as such Secured Party Beneficiary in its discretion may determine consistent herewith, the applicable Hedge Agreement, Cash Management Agreement or Treasury Transaction herewith and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial non-judicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower or any security for the Guaranteed Obligations; and and
(vi) exercise any other rights available to it under the Loan Documents or any Hedge Agreements, Cash Management Agreements or Treasury TransactionsCredit Documents; and
(fg) this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment payment in Full full in Cash of the applicable Guaranteed ObligationsObligations (other than contingent obligations not yet due and owing)), including the occurrence of any of the following, whether occurring before, upon or after any demand for payment hereunder, and whether or not any Guarantor shall have had notice or knowledge of any of them: (i) the asserting or enforcing of any right, power or remedy (whether arising under the Credit Documents, at law, in equity or otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto or with respect to any other guarantee of or security for the payment of the Guaranteed Obligations; (ii) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, any Hedge Agreements, any Cash Management Agreements or any Treasury Transactions, Credit Documents and/or at law, in equity or otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Obligations; (iiiii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to events of default) hereofof this Agreement, any of the other Loan Documents, any of the Hedge Agreements, Cash Management Agreements or Treasury Transactions Credit Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Obligations, in each case case, whether or not in accordance with the terms hereof or such Loan Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction Credit Document or any agreement relating to such other guaranty or security; (iiiiv) the Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full)respect; (ivv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction Credit Documents or from the proceeds of any security for the Guaranteed Obligations, except to the extent such security also serves as Collateral collateral for Indebtedness indebtedness other than the Guaranteed Obligations) to the payment of Indebtedness indebtedness other than the Guaranteed Obligations, even though any Secured Party Beneficiary might have elected to apply such payment to any part or all of the Guaranteed Obligations; (vvi) any Secured PartyBeneficiary’s consent to the change, reorganization or termination of the corporate structure or existence of any Group Member and to Credit Party or any of its Subsidiaries, any change in the ownership, control, name, objects, business or assets of any Credit Party, any corresponding restructuring of the Guaranteed Obligations; any amalgamation or consolidation of any Credit Party with any other Person or the consent thereto by any Beneficiary to the extent that such actions are not permitted hereunder; (vivii) any failure to perfect or continue perfection (or the release) of a security interest any Lien in any collateral which secures any of the Guaranteed Obligations; (viiviii) any defenses (other than defense of payment or performance in full)defenses, set-offs or counterclaims which any Borrower Credit Party may allege or assert against any Secured Beneficiary or any other Credit Party or Person in respect of the Guaranteed Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; (ix) any limitation of status or power, disability, in capacity or other circumstance relating to any Credit Party or any other Person, including any insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, winding-up or other proceeding involving or affecting any Credit Party or any other Person; and (viiix) any other act or thing or omission, or delay to do any other actact or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Obligations.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor or surety other than Payment in Full of the applicable Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, as follows:
(a) this Guaranty is a guaranty of payment when due and not of collectability. This ;
(b) this Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(bc) the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default notwithstanding the existence of any dispute between any the Borrower and any Secured Guaranteed Party with respect to the existence of such Event of Default;
(cd) the obligations of each Guarantor hereunder are independent of the obligations of each the Borrower and the obligations of any other Guarantor guarantor (including any other Guarantor) of the obligations of each the Borrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such the Borrower or any of such other Guarantors guarantors and whether or not such the Borrower is joined in any such action or actions;
(de) payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor’s liability for any portion of the applicable Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor’s covenant to pay a portion of the applicable Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s liability hereunder in respect of the applicable Guaranteed Obligations;
(ef) any Secured Guaranteed Party, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Obligations; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Obligations and take and hold security for the payment hereof or the Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party in respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party may have against any such security, in each case as such Secured Party in its discretion may determine consistent herewith, the applicable Hedge Agreement, Cash Management Agreement or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower or any security for the Guaranteed Obligations; and (vi) exercise any other rights available to it under the Loan Documents or any Hedge Agreements, Cash Management Agreements or Treasury Transactions; and
(f) this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment in Full of the applicable Guaranteed Obligations), including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, any Hedge Agreements, any Cash Management Agreements or any Treasury Transactions, at law, in equity or otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to events of default) hereof, any of the other Loan Documents, any of the Hedge Agreements, Cash Management Agreements or Treasury Transactions or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Obligations, in each case whether or not in accordance with the terms hereof or such Loan Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction or any agreement relating to such other guaranty or security; (iii) the Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full); (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction or from the proceeds of any security for the Guaranteed Obligations, except to the extent such security also serves as Collateral for Indebtedness other than the Guaranteed Obligations) to the payment of Indebtedness other than the Guaranteed Obligations, even though any Secured Party might have elected to apply such payment to any part or all of the Guaranteed Obligations; (v) any Secured Party’s consent to the change, reorganization or termination of the corporate structure or existence of any Group Member and to any corresponding restructuring of the Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Obligations; (vii) any defenses (other than defense of payment or performance in full), set-offs or counterclaims which any Borrower may allege or assert against any Secured Party in respect of the Guaranteed Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or omission, or delay to do any other act, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Obligations.;
Appears in 1 contract
Sources: Credit Agreement
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor or surety other than Payment in Full of the applicable Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, as follows:
(a) this Guaranty is a guaranty of payment when due and not of collectability. This ;
(b) this Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(bc) the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default notwithstanding the existence of any dispute between any Borrower and any Secured Guaranteed Party with respect to the existence of such Event of Default;
(cd) the obligations of each Guarantor hereunder are independent of the obligations of each Borrower and the obligations of any other Guarantor guarantor (including any other Guarantor) of the obligations of each Borrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower or any of such other Guarantors guarantors and whether or not such Borrower is joined in any such action or actions;
(de) payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor’s liability for any portion of the applicable Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor’s covenant to pay a portion of the applicable Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s liability hereunder in respect of the applicable Guaranteed Obligations;
(ef) any Secured Guaranteed Party, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Obligations; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Obligations and take and hold security for the payment hereof or the Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Guaranteed Party in respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Guaranteed Party may have against any such security, in each case as such Secured Guaranteed Party in its discretion may determine consistent herewith, the applicable Hedge Agreement, Cash Management Agreement Agreements or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower or any security for the Guaranteed Obligations; and (vi) exercise any other rights available to it under the Loan Documents or any Hedge Agreements, Cash Management Agreements or Treasury Transactions; and
(fg) this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment in Full of the applicable Guaranteed Obligations), including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, any Hedge Agreements, any Cash Management Agreements or any Treasury Transactions, at law, in equity or otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to events Events of defaultDefault) hereof, any of the other Loan Documents, any of the Hedge Agreements, any Cash Management Agreements or any Treasury Transactions or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Obligations, in each case whether or not in accordance with the terms hereof or such Loan Document, such Hedge Agreement, such Cash Management AgreementAgreements, such Treasury Transaction or any agreement relating to such other guaranty or security; (iii) the Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full); (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, any of the Hedge Agreements, any of the Cash Management Agreements, Agreements or any Treasury Transaction Transactions or from the proceeds of any security for the Guaranteed Obligations, except to the extent such security also serves as Collateral for Indebtedness other than the Guaranteed Obligations) to the payment of Indebtedness other than the Guaranteed Obligations, even though any Secured Guaranteed Party might have elected to apply such payment to any part or all of the Guaranteed Obligations; (v) any Secured Guaranteed Party’s consent to the change, reorganization or termination of the corporate structure or existence of any Group Member and to any corresponding restructuring of the Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Obligations; (vii) any defenses (other than defense of payment or performance in full), set-offs or counterclaims which any Borrower may allege or assert against any Secured Guaranteed Party in respect of the Guaranteed Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or omission, or delay to do any other act, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Obligations.
Appears in 1 contract
Sources: Credit Agreement (PVH Corp. /De/)
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, agrees as follows:
(a) this This Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;collectibility.
(b) the Administrative Collateral Agent may enforce this Guaranty upon the occurrence of an Event of Default notwithstanding the existence of any dispute between any Borrower Company and any Secured Guarantied Party with respect to the existence of such Event of Default;.
(c) the The obligations of each Guarantor hereunder are independent of the obligations of each Borrower Company under the Financing Agreements and the obligations of any other Guarantor guarantor (including any other Guarantor) of the obligations of each BorrowerCompany under any of the Financing Agreements, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower Company or any of such other Guarantors guarantors and whether or not such Borrower Company is joined in any such action or actions;.
(d) payment Payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Guarantied Obligations shall in no way limit, affect, modify or abridge any Guarantor’s 's liability for any portion of the applicable Guaranteed Guarantied Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Collateral Agent is awarded a judgment in any suit brought to enforce any Guarantor’s 's covenant to pay a portion of the applicable Guaranteed Guarantied Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the unpaid portion of the applicable Guaranteed Guarantied Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s 's liability hereunder in respect of the applicable Guaranteed Guarantied Obligations;.
(e) any Secured Any Guarantied Party, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof of this Guaranty or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s 's liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of any of the Guaranteed Guarantied Obligations; , (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, any of the Guaranteed Guarantied Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of any of the Guaranteed Guarantied Obligations and take and hold security for the payment hereof of this Guaranty or any of the Guaranteed Guarantied Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of any of the Guaranteed Guarantied Obligations, any other guaranties of any of the Guaranteed Guarantied Obligations, or any other obligation of any Person (including any other Guarantor) with respect to any of the Guaranteed Guarantied Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured any Guarantied Party in respect hereof of this Guaranty or any of the Guaranteed Guarantied Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured any Guarantied Party may have against any such security, in each case as such Secured Guarantied Party in its discretion may determine consistent herewith, with the applicable Hedge Agreement, Cash Management terms of the Intercreditor Agreement or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower Company or any security for any of the Guaranteed Guarantied Obligations; and (vi) subject to the terms of the Intercreditor Agreement, exercise any other rights available to it under the Loan Documents or any Hedge Financing Agreements, Cash Management Agreements or Treasury Transactions; and.
(f) this This Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations), including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce enforce, or any agreement or election not to assert or enforce, or the stay or enjoining, enjoining (by order of court, by operation of law or otherwise, ) of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under any of the Loan Documents, any Hedge Financing Agreements, any Cash Management Agreements or any Treasury Transactions, at law, in equity or otherwise) with respect to any of the Guaranteed Guarantied Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of any of the Guaranteed Guarantied Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, of any of the other Loan Documents, any of the Hedge Agreements, Cash Management Financing Agreements or Treasury Transactions or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for any of the Guaranteed Guarantied Obligations, in each case whether or not in accordance with the terms hereof or of such Loan Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction Financing Agreement or any agreement relating to such other guaranty or security; (iii) any of the Guaranteed Guarantied Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full)respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction Financing Agreements or from the proceeds of any security for any of the Guaranteed Guarantied Obligations, except to the extent such security also serves as Collateral collateral for Indebtedness indebtedness other than the Guaranteed Guarantied Obligations) to the payment of Indebtedness indebtedness other than the Guaranteed Guarantied Obligations, even though any Secured Guarantied Party might have elected to apply such payment to any part or all of the Guaranteed Guarantied Obligations; (v) any Secured Guarantied Party’s 's consent to the change, reorganization or termination of the corporate structure or existence of Company or any Group Member of its Subsidiaries and to any corresponding restructuring of any of the Guaranteed Guarantied Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Guarantied Obligations; (vii) any defenses (other than defense of payment or performance in full)defenses, set-offs or counterclaims which any Borrower Company may allege or assert against any Secured Guarantied Party in respect of any of the Guaranteed Guarantied Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other actact or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of any of the Guaranteed Guarantied Obligations.
Appears in 1 contract
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment payment in Full full of the applicable Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, agrees as follows:
(a) this Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default notwithstanding the existence of any dispute between any Borrower Company and any Secured Party Beneficiary with respect to the existence of such Event of Default;
(c) the obligations of each Guarantor hereunder are independent of the obligations of each Borrower Company and the obligations of any other Guarantor guarantor (including any other Guarantor) of the obligations of each BorrowerCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower Company or any of such other Guarantors guarantors and whether or not such Borrower Company is joined in any such action or actions;
(d) payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor’s 's liability for any portion of the applicable Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor’s 's covenant to pay a portion of the applicable Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s 's liability hereunder in respect of the applicable Guaranteed Obligations;
(e) any Secured PartyBeneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s 's liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Obligations; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Obligations and take and hold security for the payment hereof or the Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party Beneficiary in respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party Beneficiary may have against any such security, in each case as such Secured Party Beneficiary in its discretion may determine consistent herewith, herewith or the applicable Hedge Agreement, Cash Management Swap Agreement or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower Company or any security for the Guaranteed Obligations; and (vi) exercise any other rights available to it under the Loan Credit Documents or any Hedge the Swap Agreements, Cash Management Agreements or Treasury Transactions; and
(f) this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment payment in Full full of the applicable Guaranteed Obligations), including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, any Hedge Credit Documents or the Swap Agreements, any Cash Management Agreements or any Treasury Transactions, at law, in equity or otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to events of default) hereof, any of the other Loan Credit Documents, any of the Hedge Agreements, Cash Management Swap Agreements or Treasury Transactions or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Obligations, in each case whether or not in accordance with the terms hereof or such Loan Credit Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction Swap Agreement or any agreement relating to such other guaranty or security; (iii) the Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full)respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, Credit Documents or any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction Swap Agreements or from the proceeds of any security for the Guaranteed Obligations, except to the extent such security also serves as Collateral collateral for Indebtedness indebtedness other than the Guaranteed Obligations) to the payment of Indebtedness indebtedness other than the Guaranteed Obligations, even though any Secured Party Beneficiary might have elected to apply such payment to any part or all of the Guaranteed Obligations; (v) any Secured Party’s Beneficiary's consent to the change, reorganization or termination of the corporate structure or existence of Company or any Group Member of its Subsidiaries and to any corresponding restructuring of the Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Obligations; (vii) any defenses (other than defense of payment or performance in full)defenses, set-offs or counterclaims which any Borrower Company may allege or assert against any Secured Party Beneficiary in respect of the Guaranteed Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other actact or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Obligations.
Appears in 1 contract
Sources: Senior Subordinated Credit and Guaranty Agreement (Bill Barrett Corp)
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, agrees as follows:
(a) this This Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;collectibility.
(b) the Administrative Agent Guarantied Party may enforce this Guaranty upon the occurrence of an Event of Default notwithstanding under the existence Credit Agreement or the occurrence of an early termination date or similar event under any dispute between any Borrower and any Secured Party with respect to the existence Lender Interest Rate Agreement (either such occurrence being an "EVENT OF DEFAULT" for purposes of such Event of Default;this Guaranty).
(c) the The obligations of each Guarantor hereunder are independent of the obligations of each Borrower Company under the Loan Documents or the Lender Interest Rate Agreements and the obligations of any other Guarantor guarantor (including any other Guarantor) of the obligations of each BorrowerCompany under the Loan Documents or the Lender Interest Rate Agreements, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower Company or any of such other Guarantors guarantors and whether or not such Borrower Company is joined in any such action or actions;.
(d) payment Payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Guarantied Obligations shall in no way limit, affect, modify or abridge any Guarantor’s 's liability for any portion of the applicable Guaranteed Guarantied Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent Guarantied Party is awarded a judgment in any suit brought to enforce any Guarantor’s 's covenant to pay a portion of the applicable Guaranteed Guarantied Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Guarantied Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s 's liability hereunder in respect of the applicable Guaranteed Guarantied Obligations;.
(e) any Secured PartyAny Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof of this Guaranty or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s 's liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Guarantied Obligations; , (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Guarantied Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Guarantied Obligations and take and hold security for the payment hereof of this Guaranty or the Guaranteed Guarantied Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Guarantied Obligations, any other guaranties of the Guaranteed Guarantied Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Guarantied Obligations; (v) upon the occurrence and continuance of an Event of Default, enforce and apply any security now or hereafter held by or for the benefit of such Secured Party Beneficiary in respect hereof of this Guaranty or the Guaranteed Guarantied Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party Beneficiary may have against any such security, in each case as such Secured Party Beneficiary in its discretion may determine consistent herewith, with the Credit Agreement or the applicable Hedge Agreement, Cash Management Lender Interest Rate Agreement or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower Company or any security for the Guaranteed Guarantied Obligations; and (vi) exercise any other rights available to it under the Loan Documents or any Hedge the Lender Interest Rate Agreements, Cash Management Agreements or Treasury Transactions; and.
(f) this This Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations), including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, any Hedge Documents or the Lender Interest Rate Agreements, any Cash Management Agreements or any Treasury Transactions, at law, in equity or otherwise) with respect to the Guaranteed Guarantied Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Guarantied Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to events of default) hereofof the Credit Agreement, any of the other Loan Documents, any of the Hedge Agreements, Cash Management Lender Interest Rate Agreements or Treasury Transactions or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Guarantied Obligations, in each case whether or not in accordance with the terms hereof of the Credit Agreement or such Loan Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction Lender Interest Rate Agreement or any agreement relating to such other guaranty or securitysecurity except to the extent the Guarantied Obligations are modified as a result thereof; (iii) the Guaranteed Guarantied Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full)respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction or from the proceeds of any security for the Guaranteed Obligations, except to the extent such security also serves as Collateral for Indebtedness other than the Guaranteed Obligations) to the payment of Indebtedness indebtedness other than the Guaranteed Guarantied Obligations, even though any Secured Party Beneficiary might have elected to apply such payment to any part or all of the Guaranteed Guarantied Obligations; (v) any Secured Party’s Beneficiary's consent to the change, reorganization or termination of the corporate structure or existence of Company or any Group Member of its Subsidiaries and to any corresponding restructuring of the Guaranteed Guarantied Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Guarantied Obligations; (vii) any defenses (other than defense of payment or performance in full)defenses, set-offs or counterclaims which any Borrower Company may allege or assert against any Secured Party Beneficiary in respect of the Guaranteed Guarantied Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usuryusury (other than a defense that the Guarantied Obligations are not due pursuant to the express terms of the Credit Agreement and the other Loan Documents); and (viii) any other act or thing or omission, or delay to do any other actact or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Guarantied Obligations.
Appears in 1 contract
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment in Full the occurrence of the applicable Guaranteed ObligationsTermination Date. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, agrees as follows:
(a) this This Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;.
(b) the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default notwithstanding the existence of any dispute between any Borrower and any Secured Party with respect to the existence of such Event of Default;
(c) the The obligations of each Guarantor hereunder are independent of the obligations of each Borrower the other Company Parties hereunder, the Company Parties under the other Note Documents and the obligations of any other Guarantor guarantor (including any other Guarantor) of the obligations of each Borrower, the Company Parties under the other Note Documents and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower the applicable Company Party or any of such other Guarantors guarantors and whether or not such Borrower the applicable Company Party is joined in any such action or actions;.
(dc) payment Payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor’s liability for any portion of the applicable Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent Secured Party is awarded a judgment in any suit brought to enforce any Guarantor’s covenant to pay a portion of the applicable Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s liability hereunder in respect of the applicable Guaranteed Obligations;.
(ed) any The Secured Party, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof of this Guaranty or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of principal or interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Obligations; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Obligations and take and hold security for the payment hereof of this Guaranty or the Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party in respect hereof of this Guaranty or the Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party may have against any such security, in each case as such Secured Party in its discretion may determine consistent herewith, with the applicable Hedge Agreement, Cash Management Agreement or Treasury Transaction Note Documents and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower Company Party or any security for the Guaranteed Obligations; and (vi) exercise any other rights available to it under the Loan Documents or any Hedge Agreements, Cash Management Agreements or Treasury Transactions; andNote Documents.
(fe) this This Guaranty and the obligations of the Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment in Full the occurrence of the applicable Guaranteed ObligationsTermination Date), including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce enforce, or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, any Hedge Agreements, any Cash Management Agreements or any Treasury Transactions, Note Documents at law, in equity or otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to or departure from, any of the terms or provisions (including provisions relating to events of default) hereof, of any of the other Loan Documents, any of the Hedge Agreements, Cash Management Agreements or Treasury Transactions Note Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Obligations, in each case whether or not in accordance with the terms hereof of such Note Document or such Loan Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction any agreement or instrument executed pursuant thereto or any agreement relating to such other guaranty or security; (iii) the Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full)respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction Note Documents or from the proceeds of any security for the Guaranteed Obligations, except to the extent such security also serves as Collateral collateral for Indebtedness indebtedness other than the Guaranteed Obligations) to the payment of Indebtedness indebtedness other than the Guaranteed Obligations, even though any the Secured Party might have elected to apply such payment to any part or all of the Guaranteed Obligations; (v) any the Secured Party’s consent to the change, reorganization or termination of the corporate structure or existence of any Group Member Company Party or any of their respective Subsidiaries and to any corresponding restructuring of the Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Obligations; (vii) any defenses (other than defense of payment or performance in full)defenses, set-offs or counterclaims which any Borrower Company Party may allege or assert against any the Secured Party in respect of the Guaranteed ObligationsObligations (other than, subject to Section 2.13(c), the occurrence of the Termination Date or a release of such Guarantor in accordance with the Note Documents or the defense of payment in full of the Obligations (and the termination of all commitments to fund additional amounts under the Notes)), including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other actact or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Obligations.
Appears in 1 contract
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, agrees as follows:
(a) this This Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;collectibility.
(b) the Administrative Agent Guarantied Party may enforce this Guaranty upon the occurrence of an Event of Default under the Credit Agreement or the occurrence of an Early Termination Date (as defined in a Master Agreement or an Interest Rate Swap Agreement or Interest Rate and Currency Exchange Agreement in the form prepared by the International Swap and Derivatives Association Inc. or a similar event under any similar swap agreement) under any Lender Interest Rate Agreement (either such occurrence being an "Event of Default" for purposes of this Guaranty) notwithstanding the existence of any dispute between any Borrower Company and any Secured Party Beneficiary with respect to the existence of such Event of Default;.
(c) the The obligations of each Guarantor hereunder are independent of the obligations of each Borrower Company under the Loan Documents or the Lender Interest Rate Agreements and the obligations of any other Guarantor guarantor (including any other GuarantorGuarantor or Holdings) of the obligations of each BorrowerCompany under the Loan Documents or the Lender Interest Rate Agreements, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower Company or any of such other Guarantors guarantors and whether or not such Borrower Company is joined in any such action or actions;.
(d) payment Payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Guarantied Obligations shall in no way limit, affect, modify or abridge any Guarantor’s 's liability for any portion of the applicable Guaranteed Guarantied Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent Guarantied Party is awarded a judgment in any suit brought to enforce any Guarantor’s 's covenant to pay a portion of the applicable Guaranteed Guarantied Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Guarantied Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s 's liability hereunder in respect of the applicable Guaranteed Guarantied Obligations;.
(e) any Secured PartyAny Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof of this Guaranty or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s 's liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Guarantied Obligations; , (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Guarantied Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Guarantied Obligations and take and hold security for the payment hereof of this Guaranty or the Guaranteed Guarantied Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Guarantied Obligations, any other guaranties of the Guaranteed Guarantied Obligations, or any other obligation of any Person (including any other GuarantorGuarantor or Holdings) with respect to the Guaranteed Guarantied Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party Beneficiary in respect hereof of this Guaranty or the Guaranteed Guarantied Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party Beneficiary may have against any such security, in each case as such Secured Party Beneficiary in its discretion may determine consistent herewith, with the Credit Agreement or the applicable Hedge Agreement, Cash Management Lender Interest Rate Agreement or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower Company or any security for the Guaranteed Guarantied Obligations; and (vi) exercise any other rights available to it under the Loan Documents or any Hedge the Lender Interest Rate Agreements, Cash Management Agreements or Treasury Transactions; and.
(f) this This Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations), including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, any Hedge Documents the Lender Interest Rate Agreements, any Cash Management Agreements or any Treasury Transactions, at law, in equity or otherwise) with respect to the Guaranteed Guarantied Obligations or any agreement relating thereto, or with respect to the Holdings Guaranty or any other guaranty of or security for the payment of the Guaranteed Guarantied Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereofof the Credit Agreement, any of the other Loan Documents, any of the Hedge Agreements, Cash Management Lender Interest Rate Agreements or Treasury Transactions or any agreement or instrument executed pursuant thereto, or of the Holdings Guaranty or any other guaranty or security for the Guaranteed Guarantied Obligations, in each case whether or not in accordance with the terms hereof of the Credit Agreement or such Loan Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction Lender Interest Rate Agreement or any agreement relating to the Holdings Guaranty or such other guaranty or security; (iii) the Guaranteed Guarantied Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full)respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, Documents or any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction Lender Interest Rate Agreements or from the proceeds of any security for the Guaranteed Guarantied Obligations, except to the extent such security also serves as Collateral collateral for Indebtedness indebtedness other than the Guaranteed Guarantied Obligations) to the payment of Indebtedness indebtedness other than the Guaranteed Guarantied Obligations, even though any Secured Party Beneficiary might have elected to apply such payment to any part or all of the Guaranteed Guarantied Obligations; (v) any Secured Party’s Beneficiary's consent to the change, reorganization or termination of the corporate structure or existence of Company or any Group Member of its Subsidiaries and to any corresponding restructuring of the Guaranteed Guarantied Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Guarantied Obligations; (vii) any defenses (other than defense of payment or performance in full)defenses, set-offs or counterclaims which any Borrower Company may allege or assert against any Secured Party Beneficiary in respect of the Guaranteed Guarantied Obligations, including including, but not limited to, failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other actact or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Guarantied Obligations.
Appears in 1 contract
Sources: Credit Agreement (MBW Foods Inc)
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment payment in Full full of the applicable Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, agrees as follows:
(a) this This Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;.
(b) the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default notwithstanding the existence of any dispute between any Borrower and any Secured Party with respect to the existence of such Event of Default;
(c) the The obligations of each Guarantor hereunder are independent of the obligations of each Borrower the other Loan Parties hereunder, the Loan Parties under the other Loan Documents and the Specified Cash Management Agreements and the obligations of any other Guarantor guarantor (including any other Guarantor) of the obligations of each Borrowerthe Loan Parties under the other Loan Documents and the Specified Cash Management Agreements, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower the applicable Loan Party or any of such other Guarantors guarantors and whether or not such Borrower the applicable Loan Party is joined in any such action or actions;.
(dc) payment Payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor’s liability for any portion of the applicable Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor’s covenant to pay a portion of the applicable Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s liability hereunder in respect of the applicable Guaranteed Obligations;.
(ed) any Any Secured Party, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof of this Guaranty or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of principal or interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Obligations; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Obligations and take and hold security for the payment hereof of this Guaranty or the Guaranteed Obligations; (iv) release, surrender, exchange, substitute, | compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party in respect hereof of this Guaranty or the Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party may have against any such security, in each case as such Secured Party in its discretion may determine consistent herewith, with the Loan Documents or the applicable Hedge Agreement, Specified Cash Management Agreement or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower Loan Party or any security for the Guaranteed Obligations; and (vi) exercise any other rights available to it under the Loan Documents or any Hedge Agreements, the Specified Cash Management Agreements or Treasury Transactions; andAgreements.
(fe) this This Guaranty and the obligations of the Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment payment in Full full of the applicable Guaranteed Obligations), including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce enforce, or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, any Hedge Agreements, any the Specified Cash Management Agreements or any Treasury TransactionsAgreements, at law, in equity or otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to or departure from, any of the terms or provisions (including provisions relating to events of default) hereof, of any of the other Loan Documents, any of the Hedge Agreements, Specified Cash Management Agreements or Treasury Transactions or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Obligations, in each case whether or not in accordance with the terms hereof or of such Loan Document, such Hedge Agreement, such Specified Cash Management Agreement, such Treasury Transaction Agreements or any agreement or instrument executed pursuant thereto or any agreement relating to such other guaranty or security; (iii) the Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full)respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction Documents or from the proceeds of any security for the Guaranteed Obligations, except to the extent such security also serves as Collateral collateral for Indebtedness indebtedness other than the Guaranteed Obligations) to the payment of Indebtedness indebtedness other than the Guaranteed Obligations, even though any Secured Party might have elected to apply such payment to any part or all of the Guaranteed Obligations; (v) any Secured Party’s consent to the change, reorganization or termination of the | corporate structure or existence of any Group Member Loan Party or any of their respective Subsidiaries and to any corresponding restructuring of the Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Obligations; (vii) any defenses (other than defense of payment or performance in full)defenses, set-offs or counterclaims which any Borrower Loan Party may allege or assert against any Secured Party in respect of the Guaranteed ObligationsObligations (other than, subject to Section 2.13(c), the full payment in cash thereof), including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other actact or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Obligations.
Appears in 1 contract
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, agrees as follows:
(a) this This Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;collectibility.
(b) the Administrative Agent Any Noteholder may enforce this Guaranty against any one or more Guarantors upon the occurrence of an Event of Default notwithstanding the existence of any dispute between any Borrower the Company and any Secured Party Noteholder with respect to the existence of such Event of Default;.
(c) the The obligations of each Guarantor hereunder are independent of the obligations of each Borrower the Company under the Note Purchase Agreement and the Notes and the obligations of any other Guarantor guarantor (including any other Guarantor) of the obligations of each Borrowerthe Company, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower the Company or any of such other Guarantors guarantors and whether or not such Borrower the Company is joined in any such action or actions;.
(d) payment Payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Guarantied Obligations shall in no way limit, affect, modify or abridge any Guarantor’s liability for any portion of the applicable Guaranteed Guarantied Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent any Noteholder is awarded a judgment in any suit brought to enforce any Guarantor’s covenant to pay a portion of the applicable Guaranteed Guarantied Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Guarantied Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s liability hereunder in respect of the applicable Guaranteed Guarantied Obligations;.
(e) any Secured PartyAny Noteholder, upon such to the extent permitted by the terms as it deems appropriateof the Note Purchase Agreement and the Notes, without notice or demand and without affecting the validity or enforceability hereof of this Guaranty or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Guarantied Obligations; , (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Guarantied Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; and (iii) request and accept other guaranties of the Guaranteed Obligations and take and hold security for the payment hereof or the Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party in respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party may have against any such security, in each case as such Secured Party in its discretion may determine consistent herewith, the applicable Hedge Agreement, Cash Management Agreement or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower or any security for the Guaranteed Obligations; and (vi) exercise any other rights available to it under the Loan Documents Note Purchase Agreement or any Hedge Agreements, Cash Management Agreements or Treasury Transactions; andthe Notes.
(f) this This Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations), including without limitation, the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce enforce, or any agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under any of the Loan Documents, any Hedge Agreements, any Cash Management Agreements Note Purchase Agreement or any Treasury Transactionsthe Notes, at law, in equity or otherwise) with respect to the Guaranteed Guarantied Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events Events of defaultDefault) hereof, any of the other Loan DocumentsNote Purchase Agreement, any of the Hedge Agreements, Cash Management Agreements or Treasury Transactions Notes or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Obligations, in each case whether or not in accordance with the terms hereof or such Loan Document, such Hedge of the Note Purchase Agreement, such Cash Management Agreement, such Treasury Transaction or any agreement relating to such other guaranty or security; (iii) the Guaranteed Guarantied Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full)respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, any of Note Purchase Agreement or the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction or from the proceeds of any security for the Guaranteed Obligations, except to the extent such security also serves as Collateral for Indebtedness other than the Guaranteed ObligationsNotes) to the payment of Indebtedness indebtedness other than the Guaranteed Guarantied Obligations, even though any Secured Party Noteholder might have elected to apply such payment to any part or all of the Guaranteed Guarantied Obligations; (v) any Secured PartyNoteholder’s consent to the change, reorganization or termination of the corporate structure or existence of the Company or any Group Member of its subsidiaries and to any corresponding restructuring of the Guaranteed Guarantied Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Obligations; (vii) any defenses (other than defense of payment or performance in full)defenses, set-offs or counterclaims which the Company or any Borrower subsidiary may allege or assert against any Secured Party Noteholder in respect of the Guaranteed Guarantied Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viiivii) any other act or thing or omission, or delay to do any other actact or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Guarantied Obligations.
Appears in 1 contract
Sources: Subsidiary Guaranty (Parsons Corp)
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, agrees as follows:
(a) this This Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;collectibility.
(b) the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default under the Credit Agreement notwithstanding the existence of any dispute between any Borrower Lenders and any Secured Party Company with respect to the existence of such Event of Default;.
(c) the The obligations of each Guarantor hereunder are independent of the obligations of each Borrower Company under the Loan Documents and the obligations of any other Guarantor guarantor (including any other Guarantor) of the obligations of each BorrowerCompany under the Loan Documents, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower Company or any of such other Guarantors guarantors and whether or not such Borrower Company is joined in any such action or actions;.
(d) payment Payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Guarantied Obligations shall in no way limit, affect, modify or abridge any Guarantor’s 's liability for any portion of the applicable Guaranteed Guarantied Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor’s 's covenant to pay a portion of the applicable Guaranteed Guarantied Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Guarantied Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s 's liability hereunder in respect of the applicable Guaranteed Guarantied Obligations;.
(e) Administrative Agent or any Secured PartyLender, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof of this Guaranty or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s 's liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Guarantied Obligations; , (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Guarantied Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Guarantied Obligations and take and hold security for the payment hereof of this Guaranty or the Guaranteed Guarantied Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Guarantied Obligations, any other guaranties of the Guaranteed Guarantied Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Guarantied Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party Administrative Agent or any Lender in respect hereof of this Guaranty or the Guaranteed Guarantied Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party Administrative Agent or Lenders, or any of them, may have against any such security, in each case as such Secured Party Administrative Agent in its discretion may determine consistent herewith, with the applicable Hedge Agreement, Cash Management Credit Agreement or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower Company or any security for the Guaranteed Guarantied Obligations; and (vi) exercise any other rights available to it under the Loan Documents or any Hedge Agreements, Cash Management Agreements or Treasury Transactions; andDocuments.
(f) this This Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations), including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, any Hedge Agreements, any Cash Management Agreements or any Treasury Transactions, at law, in equity or otherwise) with respect to the Guaranteed Guarantied Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Obligations; Guarantied
(ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereofof the Credit Agreement, any of the other Loan Documents, any of the Hedge Agreements, Cash Management Agreements or Treasury Transactions Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Guarantied Obligations, in each case whether or not in accordance with the terms hereof of the Credit Agreement or such Loan Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction Document or any agreement relating to such other guaranty or security; (iii) the Guaranteed Guarantied Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full)respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction Documents or from the proceeds of any security for the Guaranteed Guarantied Obligations, except to the extent such security also serves as Collateral collateral for Indebtedness indebtedness other than the Guaranteed Guarantied Obligations) to the payment of Indebtedness indebtedness other than the Guaranteed Guarantied Obligations, even though Administrative Agent or Lenders, or any Secured Party of them, might have elected to apply such payment to any part or all of the Guaranteed Guarantied Obligations; (v) any Secured Party’s Lender's or Administrative Agent's consent to the change, reorganization or termination of the corporate structure or existence of Company or any Group Member of its Subsidiaries and to any corresponding restructuring of the Guaranteed Guarantied Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Guarantied Obligations; (vii) any defenses (other than defense of payment or performance in full)defenses, set-offs or counterclaims which any Borrower Company may allege or assert against Administrative Agent or any Secured Party Lender in respect of the Guaranteed Guarantied Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other actact or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Guarantied Obligations.
Appears in 1 contract
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, that its --------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, agrees as follows:
(a) this This Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;collectibility.
(b) the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default notwithstanding the existence of any dispute between any Borrower and any Secured Party with respect to the existence of such Event of Default;
(c) the The obligations of each Guarantor hereunder are independent of the obligations of each Borrower Company under the Loan Documents or the Hedge Agreements and the obligations of any other Guarantor guarantor (including any other Guarantor) of the obligations of each BorrowerCompany under the Loan Documents or the Hedge Agreements, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower Company or any of such other Guarantors guarantors and whether or not such Borrower Company is joined in any such action or actions;.
(dc) payment Payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Guarantied Obligations shall in no way limit, affect, modify or abridge any Guarantor’s 's liability for any portion of the applicable Guaranteed Guarantied Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent Guarantied Party is awarded a judgment in any suit brought to enforce any Guarantor’s 's covenant to pay a portion of the applicable Guaranteed Guarantied Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Guarantied Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s 's liability hereunder in respect of the applicable Guaranteed Guarantied Obligations;.
(ed) any Secured PartyAny Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof of this Guaranty or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s 's liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Guarantied Obligations; , (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Guarantied Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Guarantied Obligations and take and hold security for the payment hereof of this Guaranty or the Guaranteed Guarantied Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Guarantied Obligations, any other guaranties of the Guaranteed Guarantied Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Guarantied Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party Beneficiary in respect hereof of this Guaranty or the Guaranteed Guarantied Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party Beneficiary may have against any such security, in each case as such Secured Party Beneficiary in its discretion may determine consistent herewith, with the applicable Financing Agreement or the applicable Hedge Agreement, Cash Management Agreement or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower Company or any security for the Guaranteed Guarantied Obligations; and (vi) exercise any other rights available to it under the Loan Documents or any the Hedge Agreements, Cash Management Agreements or Treasury Transactions; and.
(fe) this This Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations), including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, any Documents or the Hedge Agreements, any Cash Management Agreements or any Treasury Transactions, at law, in equity or otherwise) with respect to the Guaranteed Guarantied Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Guarantied Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereofof any Financing Agreement, any of the other Loan Documents, any of the Hedge Agreements, Cash Management Agreements or Treasury Transactions or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Guarantied Obligations, in each case whether or not in accordance with the terms hereof of such Financing Agreement or such Loan Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction Agreement or any agreement relating to such other guaranty or security; (iii) the Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full); (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, Documents or any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction Agreements or from the proceeds of any security for the Guaranteed Guarantied Obligations, except to the extent such security also serves as Collateral collateral for Indebtedness indebtedness other than the Guaranteed Guarantied Obligations) to the payment of Indebtedness indebtedness other than the Guaranteed Guarantied Obligations, even though any Secured Party Beneficiary might have elected to apply such payment to any part or all of the Guaranteed Guarantied Obligations; (viv) any Secured Party’s Beneficiary's consent to the change, reorganization or termination of the corporate structure or existence of Holdings or any Group Member of its Subsidiaries and to any corresponding restructuring of the Guaranteed Guarantied Obligations; (viv) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Guarantied Obligations; (viivi) any defenses (other than defense of payment or performance in full)defenses, set-offs or counterclaims which any Borrower Company may allege or assert against any Secured Party Beneficiary in respect of the Guaranteed Guarantied Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viiivii) any other act or thing or omission, or delay to do any other actact or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Guarantied Obligations.
Appears in 1 contract
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, agrees as follows:
(a) this This Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;collectibility.
(b) the Administrative Agent Guarantied Party may enforce this Guaranty upon the occurrence and continuation of an Event of Default notwithstanding under the existence Credit Agreement or the occurrence and continuation of an Early Termination Date (as defined in a Master Agreement or an Interest Rate Swap Agreement or Interest Rate and Currency Exchange Agreement in the form prepared by the International Swap and Derivatives Association Inc. or a similar event under any dispute between similar swap agreement) under any Borrower and any Secured Party with respect to the existence Lender Interest Rate Agreement (either such occurrence being an "EVENT OF DEFAULT" for purposes of such Event of Default;this Guaranty).
(c) the The obligations of each Guarantor hereunder are independent of the obligations of each Borrower Company under the Loan Documents or the Lender Interest Rate Agreements and the obligations of any other Guarantor guarantor (including any other Guarantor) of the obligations of each BorrowerCompany under the Loan Documents or the Lender Interest Rate Agreements, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower Company or any of such other Guarantors guarantors and whether or not such Borrower Company is joined in any such action or actions;.
(d) payment Payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Guarantied Obligations shall in no way limit, affect, modify or abridge any Guarantor’s 's liability for any portion of the applicable Guaranteed Guarantied Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent Guarantied Party is awarded a judgment in any suit brought to enforce any Guarantor’s 's covenant to pay a portion of the applicable Guaranteed Guarantied Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Guarantied Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s 's liability hereunder in respect of the applicable Guaranteed Guarantied Obligations;.
(e) any Secured PartyAny Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof of this Guaranty or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s 's liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Guarantied Obligations; , (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Guarantied Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Guarantied Obligations and take and hold security for the payment hereof of this Guaranty or the Guaranteed Guarantied Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Guarantied Obligations, any other guaranties of the Guaranteed Guarantied Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Guarantied Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party Beneficiary in respect hereof of this Guaranty or the Guaranteed Guarantied Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party Beneficiary may have against any such security, in each case as such Secured Party Beneficiary in its discretion may determine consistent herewith, with the Credit Agreement or the applicable Hedge Agreement, Cash Management Lender Interest Rate Agreement or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower Company or any security for the Guaranteed Guarantied Obligations; and (vi) exercise any other rights available to it under the Loan Documents or any Hedge the Lender Interest Rate Agreements, Cash Management Agreements or Treasury Transactions; and.
(f) this This Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations), including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, any Hedge Documents or the Lender Interest Rate Agreements, any Cash Management Agreements or any Treasury Transactions, at law, in equity or otherwise) with respect to the Guaranteed Guarantied Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Guarantied Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to events of default) hereofof the Credit Agreement, any of the other Loan Documents, any of the Hedge Agreements, Cash Management Lender Interest Rate Agreements or Treasury Transactions or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Guarantied Obligations, in each case whether or not in accordance with the terms hereof of the Credit Agreement or such Loan Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction Lender Interest Rate Agreement or any agreement relating to such other guaranty or security; (iii) the Guaranteed Guarantied Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full)respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, Documents or any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction Lender Interest Rate Agreements or from the proceeds of any security for the Guaranteed Guarantied Obligations, except to the extent such security also serves as Collateral collateral for Indebtedness indebtedness other than the Guaranteed Guarantied Obligations) to the payment of Indebtedness indebtedness other than the Guaranteed Guarantied Obligations, even though any Secured Party Beneficiary might have elected to apply such payment to any part or all of the Guaranteed Guarantied Obligations; (v) any Secured Party’s Beneficiary's consent to the change, reorganization or termination of the corporate structure or existence of Company or any Group Member of its Subsidiaries and to any corresponding restructuring of the Guaranteed Guarantied Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Guarantied Obligations; (vii) any defenses (other than defense the expiration of payment or performance in fullapplicable statute of limitations), set-offs or counterclaims which any Borrower Company may allege or assert against any Secured Party Beneficiary in respect of the Guaranteed Guarantied Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other actact or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Guarantied Obligations.
Appears in 1 contract
Sources: Subsidiary Guaranty (Diamond Brands Operating Corp)
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, agrees as follows:
(a) this a. This Guaranty is a guaranty of payment and performance when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;collectibility.
(b) the Administrative Agent b. The Guarantied Parties may enforce this Guaranty upon the occurrence of an Event of Default under the Private Shelf Agreement notwithstanding the existence of any dispute between any Borrower the Company or the relevant Issuer Subsidiary, as applicable, and any Secured Guarantied Party with respect to the existence of such Event of Default;.
(c) the c. The obligations of each Guarantor hereunder are independent of the obligations of each Borrower the Company or the relevant Issuer Subsidiary, as applicable, under the Transaction Documents and the obligations of any other Guarantor guarantor (including any other Guarantor) of the obligations of each Borrowerthe Company or the relevant Issuer Subsidiary, as applicable, under the Transaction Documents, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower the Company or the relevant Issuer Subsidiary, as applicable, or any of such other Guarantors guarantors and whether or not such Borrower the Company or the relevant Issuer Subsidiary, as applicable, is joined in any such action or actions;.
(d) payment d. Payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Guarantied Obligations shall in no way limit, affect, modify or abridge any Guarantor’s liability for any portion of the applicable Guaranteed Guarantied Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent a Guarantied Party is awarded a judgment in any suit brought to enforce any Guarantor’s covenant to pay a portion of the applicable Guaranteed Guarantied Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Guarantied Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s liability hereunder in respect of the applicable Guaranteed Guarantied Obligations;.
(e) any Secured Party, e. Any Guarantied Party upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof of this Guaranty or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Guarantied Obligations; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Guarantied Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Obligations and take and hold security for the payment hereof or the Guaranteed Guarantied Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Obligations, any other guaranties of the Guaranteed Guarantied Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party in respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party may have against any such security, in each case as such Secured Party in its discretion may determine consistent herewith, the applicable Hedge Agreement, Cash Management Agreement or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower or any security for the Guaranteed Guarantied Obligations; and (viv) exercise any other rights available to it under the Loan Documents or any Hedge Agreements, Cash Management Agreements or Treasury Transactions; andTransaction Documents.
(f) this f. This Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations), including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or an agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Transaction Documents, any Hedge Agreements, any Cash Management Agreements or any Treasury Transactions, at law, in equity or otherwise) with respect to the Guaranteed Guarantied Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Guarantied Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereofof the Notes, the Private Shelf Agreement, any of the other Loan Documents, any of the Hedge Agreements, Cash Management Agreements or Treasury Transactions Transaction Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Guarantied Obligations, in each case whether or not in accordance with the terms hereof of the Private Shelf Agreement or such Loan Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction Document or any agreement relating to such other guaranty or securityguaranty; (iii) the Guaranteed Guarantied Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full)respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Transaction Documents, any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction or from the proceeds of any security for the Guaranteed Obligations, except to the extent such security also serves as Collateral for Indebtedness other than the Guaranteed Obligations) to the payment of Indebtedness indebtedness other than the Guaranteed Guarantied Obligations, even though any Secured Guarantied Party might have elected to apply such payment to any part or all of the Guaranteed Guarantied Obligations; (v) any Secured Guarantied Party’s consent to the change, reorganization or termination of the corporate structure or existence of the Company or the relevant Issuer Subsidiary, as applicable, or any Group Member of the Company’s Subsidiaries and to any corresponding restructuring of the Guaranteed Guarantied Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Obligations; (vii) any defenses (other than defense of payment or performance in full)defenses, set-offs or counterclaims which any Borrower the Company or the relevant Issuer Subsidiary, as applicable, may allege or assert against any Secured Guarantied Party in respect of the Guaranteed Guarantied Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viiivii) any other act or thing or omission, or delay to do any other actact or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Guarantied Obligations.
Appears in 1 contract
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, that its obligations hereunder are irrevocable, absolute, independent and unconditional unconditional, constitute primary obligations of such Guarantor and not a contract of surety to the maximum extent permitted by law, and to the extent permitted by applicable law shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment payment in Full full of the applicable Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, agrees as follows:
(a) this Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default notwithstanding the existence of any dispute between any Borrower and any Secured Party with respect to the existence of such Event of Default;
(c) the obligations of each Guarantor hereunder are independent of the obligations of each Borrower and the obligations of any other Guarantor guarantor (including any other Guarantor) of the obligations of each Borrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower or any of such other Guarantors guarantors and whether or not such Borrower is joined in any such action or actions;
(dc) payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor’s 's liability for any portion of the applicable Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor’s 's covenant to pay a portion of the applicable Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s 's liability hereunder in respect of the applicable Guaranteed Obligations;
(ed) any Secured PartyBeneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s 's liability hereunder, from time to time may may:
(i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Obligations; ;
(ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; ;
(iii) request and accept other guaranties of the Guaranteed Obligations and take and hold security for the payment hereof or the Guaranteed Obligations; ;
(iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Obligations; ;
(v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party Beneficiary in respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party Beneficiary may have against any such security, in each case as such Secured Party Beneficiary in its discretion may determine consistent herewith, herewith or the applicable Hedge Agreement, Cash Management Agreement or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower or any security for the Guaranteed Obligations; and and
(vi) exercise any other rights available to it under the Loan Credit Documents or any the Hedge Agreements, Cash Management Agreements or Treasury Transactions; and
(fe) this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and to the extent permitted by applicable law shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment payment in Full full of the applicable Guaranteed Obligations), including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: :
(i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, any Credit Documents or the Hedge Agreements, any Cash Management Agreements or any Treasury Transactions, at law, in equity or otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Obligations; ;
(ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to events of default) hereof, any of the other Loan Credit Documents, any of the Hedge Agreements, Cash Management Agreements or Treasury Transactions or 107 any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Obligations, in each case whether or not in accordance with the terms hereof or such Loan Credit Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction Agreement or any agreement relating to such other guaranty or security; security (provided that no Credit Document to which such Guarantor is a party may be amended without its written consent);
(iii) the Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full); respect;
(iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, Credit Documents or any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction Agreements or from the proceeds of any security for the Guaranteed Obligations, except to the extent such security also serves as Collateral collateral for Indebtedness indebtedness other than the Guaranteed Obligations) to the payment of Indebtedness indebtedness other than the Guaranteed Obligations, even though any Secured Party Beneficiary might have elected to apply such payment to any part or all of the Guaranteed Obligations; ;
(v) any Secured Party’s Beneficiary's consent to the change, reorganization or termination of the corporate structure or existence of Holdings or any Group Member of its Subsidiaries and to any corresponding restructuring of the Guaranteed Obligations; ;
(vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Obligations; ;
(vii) any defenses (other than defense of payment or performance in full)defenses, set-offs or counterclaims which any Borrower may allege or assert against any Secured Party Beneficiary in respect of the Guaranteed Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and and
(viii) any other act or thing or omission, or delay to do any other actact or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Obligations.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Stanadyne Corp)
Liability of Guarantors Absolute. Each Guarantor agrees that, to the maximum extent permitted by applicable law, that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a Guarantor guarantor or surety other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the maximum extent permitted by applicable law, agrees as follows:
(a) this This Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;collectibility.
(b) the Administrative Agent Guarantied Party may enforce this Guaranty upon the occurrence of an Event of Default under the Credit Agreement or the occurrence of an Early Termination Date (as defined in a Master Agreement or an Interest Rate Swap Agreement or Interest Rate and Currency Exchange Agreement in the form prepared by the International Swap and Derivatives Association Inc. or a similar event under any similar swap agreement) under any Lender Interest Rate Agreement (either such occurrence being an "Event of Default" for purposes of this Guaranty) notwithstanding the existence of any dispute between any Borrower Company and any Secured Party Beneficiary with respect to the existence of such Event of Default;.
(c) the The obligations of each Guarantor hereunder are independent of the obligations of each Borrower Company under the Loan Documents or the Lender Interest Rate Agreements and the obligations of any other Guarantor guarantor (including any other Guarantor) of the obligations of each BorrowerCompany under the Loan Documents or the Lender Interest Rate Agreements, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower Company or any of such other Guarantors guarantors and whether or not such Borrower Company is joined in any such action or actions;.
(d) payment Payment by any Guarantor of a portion, but not all, of the applicable Guaranteed Guarantied Obligations shall in no way limit, affect, modify or abridge any Guarantor’s 's liability for any portion of the applicable Guaranteed Guarantied Obligations which has not been paid. Without limiting the generality of the foregoing, if the Administrative Agent Guarantied Party is awarded a judgment in any suit brought to enforce any Guarantor’s 's covenant to pay a portion of the applicable Guaranteed Guarantied Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the applicable Guaranteed Guarantied Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s 's liability hereunder in respect of the applicable Guaranteed Guarantied Obligations;.
(e) any Secured PartyAny Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof of this Guaranty or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s 's liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Guarantied Obligations; , (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Guarantied Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Guarantied Obligations and take and hold security for the payment hereof of this Guaranty or the Guaranteed Guarantied Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Guarantied Obligations, any other guaranties of the Guaranteed Guarantied Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Guarantied Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party Beneficiary in respect hereof of this Guaranty or the Guaranteed Guarantied Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party Beneficiary may have against any such security, in each case as such Secured Party Beneficiary in its discretion may determine consistent herewith, with the Credit Agreement or the applicable Hedge Agreement, Cash Management Lender Interest Rate Agreement or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower Company or any security for the Guaranteed Guarantied Obligations; and (vi) exercise any other rights available to it under the Loan Documents or any Hedge the Lender Interest Rate Agreements, Cash Management Agreements or Treasury Transactions; and.
(f) this This Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment payment in Full full of the applicable Guaranteed Guarantied Obligations), including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, any Hedge Documents or the Lender Interest Rate Agreements, any Cash Management Agreements or any Treasury Transactions, at law, in equity or otherwise) with respect to the Guaranteed Guarantied Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Guarantied Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to events of default) hereofof the Credit Agreement, any of the other Loan Documents, any of the Hedge Agreements, Cash Management Lender Interest Rate Agreements or Treasury Transactions or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Guarantied Obligations, in each case whether or not in accordance with the terms hereof of the Credit Agreement or such Loan Document, such Hedge Lender Interest Rate Agreement, such Cash Management Agreement, such Treasury Transaction or any agreement relating to such other guaranty or security; (iii) the Guaranteed Guarantied Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect (other than with respect to defense of payment or performance in full)respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, Documents or any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction Lender Interest Rate Agreements or from the proceeds of any security for the Guaranteed Guarantied Obligations, except to the extent such security also serves as Collateral collateral for Indebtedness indebtedness other than the Guaranteed Guarantied Obligations) to the payment of Indebtedness indebtedness other than the Guaranteed Guarantied Obligations, even though any Secured Party Beneficiary might have elected to apply such payment to any part or all of the Guaranteed Guarantied Obligations; (v) any Secured Party’s Beneficiary's consent to the change, reorganization or termination of the corporate structure or existence of Company or any Group Member of its Subsidiaries and to any corresponding restructuring of the Guaranteed Guarantied Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Guarantied Obligations; (vii) any defenses (other than defense of payment or performance in full)defenses, set-offs or counterclaims which any Borrower Company may allege or assert against any Secured Party Beneficiary in respect of the Guaranteed Guarantied Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other actact or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Guarantied Obligations.
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Sources: Credit Agreement (Blackbaud Inc)