Nature of Obligations. (a) The obligations of the Obligors under this Agreement and the Notes are joint and several primary obligations of each Obligor regardless of which Obligor actually receives the proceeds of any Notes or the manner in which the Obligors, any Purchaser or any holder thereof accounts for such Notes on its books and records. (b) Each Obligor hereby waives, to the fullest extent permitted by law: (1) notice of the creation, renewal or accrual of any liability of an Obligor, present or future, or of the reliance of such holder of Notes upon this Agreement (it being understood that every Indebtedness, liability and obligation described in this Agreement or the Notes shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Agreement and the Notes); (2) demand of payment by any holder of Notes from an Obligor or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteed; and (3) presentment for the payment by any holder of Notes or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Obligor. The obligations of each Obligor under this Agreement and the Notes and the rights of any holder of Notes to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by indefeasible payment in full in cash of the Notes and the obligations of the Obligors under this Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever. (c) Except as otherwise expressly provided in this Agreement, the obligations of the Obligors hereunder and under the Notes shall be binding upon the Obligors and their successors and assigns, and shall remain in full force and effect until the entire principal, interest and premium, if any, on the Notes and all other sums due under this Agreement shall have been paid and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including without limitation any of the following, whether or not with notice to or the consent of the Obligors: (1) the genuineness, validity, regularity or enforceability of the Notes, this Agreement or any other agreement or any of the terms of any thereof, the continuance of any obligation on the part of any Obligor or any other Person on or in respect of the Notes or under this Agreement or any other agreement or the power or authority or the lack of power or authority of any Obligor to issue the Notes or any Obligor to execute and deliver this Agreement or any other agreement or to perform any of its obligations hereunder or the existence or continuance of any Obligor or any other Person as a legal entity; or (2) any default, failure or delay, willful or otherwise, in the performance by an Obligor or any other Person of any obligations of any kind or character whatsoever under the Notes, this Agreement or any other agreement; or (3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of any Obligor or any other Person or in respect of the property of an Obligor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of an Obligor or any other Person; or (4) impossibility or illegality of performance on the part of any Obligor or any other Person of its obligations under the Notes, this Agreement or any other agreements; or (5) in respect of an Obligor or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to an Obligor or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of an Obligor or any other Person and whether or not of the kind hereinbefore specified; or (6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against an Obligor or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by an Obligor or any other Person, or against any sums payable in respect of the Notes or under this Agreement, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or (7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by an Obligor or any other Person of its respective obligations under or in respect of the Notes, this Agreement or any other agreement; or (8) the failure of any Obligor to receive any benefit from or as a result of its execution, delivery and performance of this Agreement; or (9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Obligor of failure of an Obligor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, this Agreement or any other agreement or failure to resort for payment to an Obligor or to any other Person or to any other Agreement or to any property, security, Liens or other rights or remedies; or (10) the acceptance of any additional security or other agreement, the advance of additional money to an Obligor or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, this Agreement or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or (11) any merger or consolidation of an Obligor or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of an Obligor or any other Person to any other Person, or any change in the ownership of any shares of an Obligor or any other Person or any release of any Obligor; or (12) any defense whatsoever that: (i) an Obligor or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than indefeasible payment thereof in Federal or other immediately available funds, or (ii) an Obligor or any other Person might have to the performance or observance of any of the provisions of the Notes, this Agreement or any other agreement, whether through the satisfaction or purported satisfaction by an Obligor or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise, other than the defense of indefeasible payment in full in cash of the Notes; or (13) any act or failure to act with regard to the Notes, this Agreement or any other agreement or anything which might vary the risk of any Obligor or any other Person; or (14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Obligor or any other Person in respect of the obligations of any Obligor or other Person under this Agreement or any other agreement, other than the defense of indefeasible payment in full in cash of the Notes; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Agreement and the Notes and the parties hereto that the obligations of each Obligor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the indefeasible payment in full in cash of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and all other sums due and payable under this Agreement, at the place specified in and all in the manner and with the effect provided in the Notes and this Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, an Obligor shall default under or in respect of the terms of the Notes or this Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by an Obligor under the Notes or this Agreement shall remain in full force and effect and shall apply to each and every subsequent default. (d) To the extent of any payments made under this Agreement, each Obligor making such payment shall have a right of contribution from the other Obligors, but such Obligor covenants and agrees that such right of contribution shall be subordinate in right of payment to the rights of the holder of Notes for which full payment has not been made or provided for and, to that end, such Obligor agrees not to claim or enforce any such right of contribution unless and until all of the Notes and all other sums due and payable under this Agreement have been fully and irrevocably paid and discharged. (e) Each Obligor agrees that to the extent an Obligor or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Obligors’ obligations hereunder, as if said payment had not been made. The liability of the Obligors hereunder shall not be reduced or discharged, in whole or in part, by any payment to any holder of a Note from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person. (f) No holder of a Note shall be under any obligation: (1) to marshal any assets in favor of the Obligors or in payment of any or all of the liabilities of any Obligor under or in respect of the Notes or the obligations of the Obligors hereunder or (2) to pursue any other remedy that the Obligors may or may not be able to pursue themselves and that may lighten the Obligors’ burden, any right to which each Obligor hereby expressly waives. (g) Notwithstanding anything to the contrary in this Agreement, including this Section 22.9, all obligations and liabilities of an Obligor under this Agreement, the Notes and any Joinder Agreement shall automatically, without any action on the part of any party hereto, terminate and be void and of no further force and effect with respect to such Obligor (or any successor thereto or assign thereof) if and when such Obligor (or any successor thereto or assign thereof) is released from this Agreement, the Notes and any Joinder Agreement by reason of the express provisions of Section 2.2 of this Agreement or is otherwise released from this Agreement, the Notes and any Joinder Agreement in accordance with the terms of this Agreement.
Appears in 3 contracts
Sources: Note Purchase Agreement (Gallagher Arthur J & Co), Note Purchase Agreement (Gallagher Arthur J & Co), Note Purchase Agreement (Gallagher Arthur J & Co)
Nature of Obligations. This Guaranty shall constitute a guaranty of performance and of payment and not of collection, and the Guarantor specifically agrees that it shall not be necessary, and that the Guarantor shall not be entitled to require, before or as a condition of enforcing the liability of the Guarantor under this Guaranty or requiring payment or performance of the Guaranteed Obligations by the Guarantor hereunder, or at any time thereafter, that any Person: (a) The obligations of file suit or proceed to obtain or assert a claim for personal judgment against the Obligors under this Agreement and the Notes are joint and several primary obligations of each Obligor regardless of which Obligor actually receives the proceeds of any Notes or the manner in which the Obligors, any Purchaser or any holder thereof accounts for such Notes on its books and records.
(b) Each Obligor hereby waives, to the fullest extent permitted by law:
(1) notice of the creation, renewal or accrual of any liability of an Obligor, present or future, or of the reliance of such holder of Notes upon this Agreement (it being understood that every Indebtedness, liability and obligation described in this Agreement or the Notes shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Agreement and the Notes);
(2) demand of payment by any holder of Notes from an Obligor Equity Investor Transferee or any other Person indebted in any manner on or that may be liable for any Guaranteed Obligation; (b) make any other effort to obtain payment or performance of any Guaranteed Obligation from the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any holder of Notes Equity Investor Transferee or any other Person that may be liable for such Guaranteed Obligation; (c) exercise or assert any other right or remedy to which such Person is or may be entitled in connection with any Guaranteed Obligation or any guaranty therefor; or (d) assert or file any claim against the assets of the Notes Equity Investor Transferee or any other instrumentPerson liable for any Guaranteed Obligation. Notwithstanding the foregoing, protest thereof no provision of this Guaranty shall be construed to avoid any notices or demands or cure periods available to the Equity Investor Transferee under the Guaranteed Agreements, or to require the Guarantor to pay, perform or discharge any Guaranteed Obligation prior to the time such Guaranteed Obligation is due and notice of its dishonor payable pursuant to any party thereto and to such Obligor. The obligations of each Obligor under this Agreement and the Notes and the rights of any holder of Notes to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by indefeasible payment in full in cash of the Notes and the obligations of the Obligors under this Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim Guaranteed Agreements (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) Except as otherwise expressly provided in this Agreement, the obligations of the Obligors hereunder and under the Notes shall additional time periods that may Exhibit G to Participation Agreement be binding upon the Obligors and their successors and assigns, and shall remain in full force and effect until the entire principal, interest and premium, if any, on the Notes and all other sums due under this Agreement shall have been paid and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including without limitation any of the following, whether or not with notice to or the consent of the Obligors:
(1) the genuineness, validity, regularity or enforceability of the Notes, this Agreement or any other agreement or any of the terms of any thereof, the continuance of any obligation on the part of any Obligor or any other Person on or in respect of the Notes or under this Agreement or any other agreement or the power or authority or the lack of power or authority of any Obligor to issue the Notes or any Obligor to execute and deliver this Agreement or any other agreement or to perform any of its obligations hereunder or the existence or continuance of any Obligor or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by an Obligor or any other Person of any obligations of any kind or character whatsoever under the Notes, this Agreement or any other agreement; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of any Obligor or any other Person or in respect of the property of an Obligor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of an Obligor or any other Person; or
(4) impossibility or illegality of performance on the part of any Obligor or any other Person of its obligations under the Notes, this Agreement or any other agreements; or
(5) in respect of an Obligor or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to an Obligor or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performanceavailable under, or any other force majeure, whether notices and demands that may not be given or not beyond the control of an Obligor or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against an Obligor or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by an Obligor or any other Person, or against any sums payable in respect of the Notes or under this Agreement, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by an Obligor or any other Person of its respective obligations under or in respect of the Notes, this Agreement or any other agreement; or
(8) the failure of any Obligor to receive any benefit from or made as a result of its execution, delivery and performance of this Agreement; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Obligor of failure of an Obligor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, this Agreement or any other agreement or failure to resort for payment to an Obligor or to any other Person or to any other Agreement or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other agreement, the advance of additional money to an Obligor or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, this Agreement or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any merger or consolidation of an Obligor or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of an Obligor or any other Person to any other Person, or any change in the ownership of any shares of an Obligor or any other Person or any release of any Obligor; or
(12) any defense whatsoever that: (i) an Obligor or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than indefeasible payment thereof in Federal or other immediately available funds, or (ii) an Obligor or any other Person might have to the performance or observance of any of the provisions of the Notes, this Agreement or any other agreement, whether through the satisfaction or purported satisfaction by an Obligor or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise, other than the defense of indefeasible payment in full in cash of the Notes; or
(13) any act or failure to act with regard to the Notes, this Agreement or any other agreement or anything which might vary the risk of any Obligor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Obligor or any other Person in respect of the obligations of any Obligor or other Person under this Agreement or any other agreement, other than the defense of indefeasible payment in full in cash of the Notes; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Agreement and the Notes and the parties hereto that the obligations of each Obligor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the indefeasible payment in full in cash of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and all other sums due and payable under this Agreement, at the place specified in and all in the manner and with the effect provided in the Notes and this Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, an Obligor shall default under or in respect of the terms of the Notes or this Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by an Obligor under the Notes or this Agreement shall remain in full force and effect and shall apply to each and every subsequent default.
Applicable Laws (d) To the extent of any payments made under this Agreement, each Obligor making such payment shall have a right of contribution from the other Obligors, but such Obligor covenants and agrees that such right of contribution shall be subordinate in right of payment to the rights of the holder of Notes for which full payment has not been made or provided for and, to that end, such Obligor agrees not to claim or enforce any such right of contribution unless and until all of the Notes and all other sums due and payable under this Agreement have been fully and irrevocably paid and discharged.
(e) Each Obligor agrees that to the extent an Obligor or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under including any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Obligors’ obligations hereunder, as if said payment had not been made. The liability of the Obligors hereunder shall not be reduced or discharged, in whole or in part, by any payment to any holder of a Note from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Personlaws)).
(f) No holder of a Note shall be under any obligation: (1) to marshal any assets in favor of the Obligors or in payment of any or all of the liabilities of any Obligor under or in respect of the Notes or the obligations of the Obligors hereunder or (2) to pursue any other remedy that the Obligors may or may not be able to pursue themselves and that may lighten the Obligors’ burden, any right to which each Obligor hereby expressly waives.
(g) Notwithstanding anything to the contrary in this Agreement, including this Section 22.9, all obligations and liabilities of an Obligor under this Agreement, the Notes and any Joinder Agreement shall automatically, without any action on the part of any party hereto, terminate and be void and of no further force and effect with respect to such Obligor (or any successor thereto or assign thereof) if and when such Obligor (or any successor thereto or assign thereof) is released from this Agreement, the Notes and any Joinder Agreement by reason of the express provisions of Section 2.2 of this Agreement or is otherwise released from this Agreement, the Notes and any Joinder Agreement in accordance with the terms of this Agreement.
Appears in 2 contracts
Sources: Participation Agreement (Ormat Technologies, Inc.), Participation Agreement (Ormat Technologies, Inc.)
Nature of Obligations. Notwithstanding anything to the contrary contained elsewhere in this Agreement, it is understood and agreed by the various parties to this Agreement that all Obligations to repay principal of, interest on, and all other amounts with respect to Term Loans and each Note, and all other Obligations arising hereunder and under the other Loan Documents to which the Borrowers are a party (including all fees, indemnities, taxes and other Obligations in connection therewith) shall constitute the joint and several obligations of each of the Borrowers. In addition to the direct (and joint and several) obligations of the Borrowers with respect to Obligations as described above, all such Obligations shall be guaranteed pursuant to, and in accordance with the terms of, the Guarantee and Collateral Agreement.
(a) The obligations of each Borrower with respect to the Obligors under this Agreement and Obligations are independent of the Notes are joint and several primary obligations of each Obligor regardless of which Obligor actually receives the proceeds of any Notes or the manner in which the Obligors, any Purchaser other Borrower or any holder thereof accounts for Guarantor under its guaranty of such Notes on its books Obligations, and records.
(b) a separate action or actions may be brought and prosecuted against each Borrower, whether or not any other Borrower or any such Guarantor is joined in any such action or actions. Each Obligor hereby Borrower waives, to the fullest extent permitted by law:
(1) notice of , the creation, renewal or accrual benefit of any statute of limitations affecting its liability of an Obligor, present or future, or of the reliance of such holder of Notes upon this Agreement (it being understood that every Indebtedness, liability and obligation described in this Agreement hereunder or the Notes shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Agreement and the Notes);
(2) demand of enforcement thereof. Any payment by any holder Borrower or other circumstance which operates to toll any statute of Notes from an Obligor or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any holder of Notes or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor limitations as to any party thereto and Borrower shall, to such Obligor. The obligations of each Obligor under this Agreement and the Notes and the rights of any holder of Notes to enforce such obligations fullest extent permitted by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject operate to any reduction, limitation, impairment or termination (other than by indefeasible payment in full in cash toll the statute of the Notes and the obligations of the Obligors under this Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject limitations as to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoevereach Borrower.
(cb) Except as otherwise expressly provided in this Agreement, the obligations Each of the Obligors hereunder Borrowers authorizes the Administrative Agent and under the Notes Lenders without notice or demand (except as shall be binding upon the Obligors required by applicable statute and their successors and assignscannot be waived), and shall remain in full force and effect until the entire principalwithout affecting or impairing its liability hereunder, interest and premium, if any, on the Notes and all other sums due under this Agreement shall have been paid and such obligations shall not be affected, modified or impaired upon the happening from time to time of to:
(i) exercise or refrain from exercising any eventrights against any other Borrower or any Guarantor or others or otherwise act or refrain from acting;
(ii) release or substitute any other Borrower, including without limitation endorsers, Guarantors or other obligors;
(iii) settle or compromise any of the followingObligations of any other Borrower or any other Loan Party, any security therefor or any liability (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any liability (whether due or not with notice not) of any Borrower to its creditors other than the Lenders;
(iv) apply any sums paid by any other Borrower or any other Person, howsoever realized or otherwise received to or for the consent account of the Obligors:such Borrower to any liability or liabilities of such other Borrower or other Person regardless of what liability or liabilities of such other Borrower or other Person remain unpaid; and/or
(1v) the genuinenessconsent to or waive any breach of, validityor act, regularity omission or enforceability of the Notesdefault under, this Agreement or any other agreement or any of the terms of any thereofinstruments or agreements referred to herein, the continuance of any obligation on the part of any Obligor or any other Person on or in respect of the Notes or under this Agreement or any other agreement or the power or authority or the lack of power or authority of any Obligor to issue the Notes or any Obligor to execute and deliver this Agreement or any other agreement or to perform any of its obligations hereunder or the existence or continuance of any Obligor or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by an Obligor or any other Person of any obligations of any kind Borrower or character whatsoever under the Notes, this Agreement or any other agreement; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of any Obligor or any other Person or in respect of the property of an Obligor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of an Obligor or any other Person; or
(4) impossibility or illegality of performance on the part of any Obligor or any other Person of its obligations under the Notes, this Agreement or any other agreements; or
(5) in respect of an Obligor or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to an Obligor or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of an Obligor or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against an Obligor or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by an Obligor or any other Person, or against any sums payable in respect of the Notes or under this Agreement, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by an Obligor or any other Person of its respective obligations under or in respect of the Notes, this Agreement or any other agreement; or
(8) the failure of any Obligor to receive any benefit from or as a result of its execution, delivery and performance of this Agreement; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Obligor of failure of an Obligor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, this Agreement or any other agreement or failure to resort for payment to an Obligor or to any other Person or to any other Agreement or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other agreement, the advance of additional money to an Obligor or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, this Agreement or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any merger or consolidation of an Obligor or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of an Obligor or any other Person to any other Person, or any change in the ownership of any shares of an Obligor or any other Person or any release of any Obligor; or
(12) any defense whatsoever that: (i) an Obligor or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than indefeasible payment thereof in Federal or other immediately available funds, or (ii) an Obligor or any other Person might have to the performance or observance of any of the provisions of the Notes, this Agreement or any other agreement, whether through the satisfaction or purported satisfaction by an Obligor or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise, other than the defense of indefeasible payment in full in cash of the Notes; or
(13) any act or failure to act with regard to the Notes, this Agreement or any other agreement or anything which might vary the risk of any Obligor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Obligor or any other Person in respect of the obligations of any Obligor or other Person under this Agreement or any other agreement, other than the defense of indefeasible payment in full in cash of the Notes; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Agreement and the Notes and the parties hereto that the obligations of each Obligor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the indefeasible payment in full in cash of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and all other sums due and payable under this Agreement, at the place specified in and all in the manner and with the effect provided in the Notes and this Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, an Obligor shall default under or in respect of the terms of the Notes or this Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by an Obligor under the Notes or this Agreement shall remain in full force and effect and shall apply to each and every subsequent default.
(d) To the extent of any payments made under this Agreement, each Obligor making such payment shall have a right of contribution from the other Obligors, but such Obligor covenants and agrees that such right of contribution shall be subordinate in right of payment to the rights of the holder of Notes for which full payment has not been made or provided for and, to that end, such Obligor agrees not to claim or enforce any such right of contribution unless and until all of the Notes and all other sums due and payable under this Agreement have been fully and irrevocably paid and discharged.
(e) Each Obligor agrees that to the extent an Obligor or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Obligors’ obligations hereunder, as if said payment had not been made. The liability of the Obligors hereunder shall not be reduced or discharged, in whole or in part, by any payment to any holder of a Note from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(fc) No holder of a Note shall be under It is not necessary for the Administrative Agent or any obligation: (1) other Lender to marshal any assets in favor of inquire into the Obligors capacity or in payment powers of any Borrower or all any of the liabilities of any Obligor under or in respect of the Notes its Subsidiaries or the officers, directors, members, partners or agents acting or purporting to act on its behalf, and any Obligations made or created in reliance upon the professed exercise of such powers shall constitute the joint and several obligations of the Obligors hereunder or (2) to pursue any other remedy that the Obligors may or may not be able to pursue themselves and that may lighten the Obligors’ burden, any right to which each Obligor hereby expressly waivesBorrowers hereunder.
(gd) Notwithstanding anything to the contrary in this Agreement, including this Section 22.9, all obligations and liabilities No Borrower shall have any rights of an Obligor under this Agreement, the Notes and any Joinder Agreement shall automatically, without any action on the part of any party hereto, terminate and be void and of no further force and effect contribution or subrogation with respect to such Obligor (or any successor thereto or assign thereof) if other Borrower as a result of payments made by it hereunder, in each case unless and when such Obligor (or any successor thereto or assign thereof) is released from this Agreement, until the Notes Total Term Loan Commitment has been terminated and any Joinder Agreement by reason of the express provisions of Section 2.2 of this Agreement or is otherwise released from this Agreement, the Notes and any Joinder Agreement all Obligations have been paid in accordance with the terms of this Agreementfull.
Appears in 2 contracts
Sources: Second Lien Term Loan Credit Agreement (RSC Holdings Inc.), Second Lien Term Loan Credit Agreement (RSC Holdings Inc.)
Nature of Obligations. (a) The obligations of Recipient understands and agrees that no contract or agreement providing for the Obligors under this Transaction shall be deemed to exist unless and until a Definitive Agreement has been executed and the Notes are joint delivered, and several primary obligations of each Obligor regardless of which Obligor actually receives the proceeds of any Notes or the manner in which the Obligors, any Purchaser or any holder thereof accounts for such Notes on its books and records.
(b) Each Obligor Recipient hereby waives, in advance, any claims (including breach of contract) in connection with the Transaction unless and until Recipient and the Company shall have entered into a Definitive Agreement. Recipient also agrees that unless and until a Definitive Agreement between the Company and Recipient with respect to the fullest extent permitted by law:
(1) notice Transaction has been executed and delivered, neither the Company nor any of the creationits stockholders, renewal affiliates or accrual Representatives has any legal obligation of any liability of an Obligor, present or future, or of the reliance of such holder of Notes upon this Agreement (it being understood that every Indebtedness, liability and obligation described in this Agreement or the Notes shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Agreement and the Notes);
(2) demand of payment by any holder of Notes from an Obligor or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any holder of Notes or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and kind whatsoever with respect to such Obligor. The obligations Transaction by virtue of each Obligor under this Agreement and the Notes and the rights of any holder of Notes to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by indefeasible payment in full in cash of the Notes and the obligations of the Obligors under this Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) Except as otherwise expressly provided in this Agreement, the obligations of the Obligors hereunder and under the Notes shall be binding upon the Obligors and their successors and assigns, and shall remain in full force and effect until the entire principal, interest and premium, if any, on the Notes and all other sums due under this Agreement shall have been paid and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including without limitation any of the following, whether or not with notice to or the consent of the Obligors:
(1) the genuineness, validity, regularity or enforceability of the Notes, this Agreement or any other agreement written or any of the terms of any thereof, the continuance of any obligation on the part of any Obligor or any other Person on or in respect of the Notes or under this Agreement or any other agreement or the power or authority or the lack of power or authority of any Obligor to issue the Notes or any Obligor to execute and deliver this Agreement or any other agreement or to perform any of its obligations hereunder or the existence or continuance of any Obligor or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by an Obligor or any other Person of any obligations of any kind or character whatsoever under the Notes, this Agreement or any other agreement; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of any Obligor or any other Person or in respect of the property of an Obligor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of an Obligor or any other Person; or
(4) impossibility or illegality of performance on the part of any Obligor or any other Person of its obligations under the Notes, this Agreement or any other agreements; or
(5) in respect of an Obligor or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to an Obligor or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of an Obligor or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against an Obligor or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by an Obligor or any other Person, or against any sums payable in respect of the Notes or under this Agreement, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by an Obligor or any other Person of its respective obligations under or in respect of the Notes, this Agreement or any other agreement; or
(8) the failure of any Obligor to receive any benefit from or as a result of its execution, delivery and performance of this Agreement; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Obligor of failure of an Obligor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, this Agreement or any other agreement or failure to resort for payment to an Obligor or to any other Person or to any other Agreement or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other agreement, the advance of additional money to an Obligor or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, this Agreement or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any merger or consolidation of an Obligor or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of an Obligor or any other Person to any other Person, or any change in the ownership of any shares of an Obligor or any other Person or any release of any Obligor; or
(12) any defense whatsoever that: (i) an Obligor or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than indefeasible payment thereof in Federal or other immediately available funds, or (ii) an Obligor or any other Person might have to the performance or observance of any of the provisions of the Notes, this Agreement or any other agreement, whether through the satisfaction or purported satisfaction by an Obligor or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise, other than the defense of indefeasible payment in full in cash of the Notes; or
(13) any act or failure to act with regard to the Notes, this Agreement or any other agreement or anything which might vary the risk of any Obligor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Obligor or any other Person in respect of the obligations of any Obligor or other Person under this Agreement or any other agreement, other than the defense of indefeasible payment in full in cash of the Notes; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Agreement and the Notes and the parties hereto that the obligations of each Obligor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the indefeasible payment in full in cash of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and all other sums due and payable under this Agreement, at the place specified in and all in the manner and with the effect provided in the Notes and this Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, an Obligor shall default under or in respect of the terms of the Notes or this Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by an Obligor under the Notes or this Agreement shall remain in full force and effect and shall apply to each and every subsequent default.
(d) To the extent of any payments made under this Agreement, each Obligor making such payment shall have a right of contribution from the other Obligors, but such Obligor covenants and agrees that such right of contribution shall be subordinate in right of payment to the rights of the holder of Notes for which full payment has not been made or provided for and, to that end, such Obligor agrees not to claim or enforce any such right of contribution unless and until all of the Notes and all other sums due and payable under this Agreement have been fully and irrevocably paid and discharged.
(e) Each Obligor agrees that to the extent an Obligor or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Obligors’ obligations hereunder, as if said payment had not been made. The liability of the Obligors hereunder shall not be reduced or discharged, in whole or in part, by any payment to any holder of a Note from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(f) No holder of a Note shall be under any obligation: (1) to marshal any assets in favor of the Obligors or in payment of any or all of the liabilities of any Obligor under or in respect of the Notes or the obligations of the Obligors hereunder or (2) to pursue any other remedy that the Obligors may or may not be able to pursue themselves and that may lighten the Obligors’ burden, any right to which each Obligor hereby expressly waives.
(g) Notwithstanding anything to the contrary in this Agreement, including this Section 22.9, all obligations and liabilities of an Obligor under this Agreement, the Notes and any Joinder Agreement shall automatically, without any action on the part of any party hereto, terminate and be void and of no further force and effect oral expression with respect to such Obligor (or any successor thereto or assign thereof) if and when such Obligor (or any successor thereto or assign thereof) is released from Transaction except, in the case of this Agreement, for the Notes matters specifically agreed to herein. Recipient understands that (i) the Company and its Representatives shall be free to conduct any Joinder Agreement by reason process for the Transaction as they in their sole discretion shall determine (including negotiating with any of the express provisions prospective parties to such Transaction and entering into a Definitive Agreement without prior notice to Recipient or any other person or terminating negotiations with Recipient) and (ii) any procedures relating to such Transaction may be changed at any time without notice to Recipient or any other person. Recipient hereby confirms that Recipient is not acting as a broker for or Representative of Section 2.2 any person and is considering the Transaction only for Recipient’s own account. Notwithstanding anything contained herein to the contrary, the Company is under no obligation to compensate any broker engaged or employed by and working on behalf of this Agreement Recipient for any brokerage commission or is otherwise released from fees or any other costs associated with the Transaction contemplated by this Agreement, and Recipient shall indemnify and hold the Notes Company harmless from and against any Joinder Agreement in accordance with claims for the terms payment of this Agreementcommissions or other fees made by brokers or other persons which claims arise from the acts or omissions of Recipient or its Representatives.
Appears in 2 contracts
Sources: Confidentiality Agreement, Confidentiality Agreement
Nature of Obligations. This Guaranty shall constitute a continuing, absolute, irrevocable and unconditional guaranty of performance and of payment and not of collection, and the Guarantor specifically agrees that it shall not be necessary, and that the Guarantor shall not be entitled to require, before or as a condition of enforcing the liability of the Guarantor under this Guaranty or requiring payment or performance of the Guaranteed Obligations by the Guarantor hereunder, or at any time thereafter, that any Person: (a) The obligations of file suit or proceed to obtain or assert a claim for personal judgment against the Obligors under this Agreement and the Notes are joint and several primary obligations of each Obligor regardless of which Obligor actually receives the proceeds of any Notes or the manner in which the Obligors, any Purchaser or any holder thereof accounts for such Notes on its books and records.
(b) Each Obligor hereby waives, to the fullest extent permitted by law:
(1) notice of the creation, renewal or accrual of any liability of an Obligor, present or future, or of the reliance of such holder of Notes upon this Agreement (it being understood that every Indebtedness, liability and obligation described in this Agreement or the Notes shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Agreement and the Notes);
(2) demand of payment by any holder of Notes from an Obligor Lessee or any other Person indebted in any manner on or that may be liable for any Guaranteed Obligation; (b) make any other effort to obtain payment or performance of any Guaranteed Obligation from the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any holder of Notes Lessee or any other Person that may be liable for such Guaranteed Obligation; (c) foreclose against or seek to realize upon any security now or hereafter existing for such Guaranteed Obligation; (d) exercise or assert any other right or remedy to which such Person is or may be entitled in connection with any Guaranteed Obligation or any security or other guaranty therefor; or (e) assert or file any claim against the assets of the Notes Lessee or any other instrumentPerson liable for any Guaranteed Obligation. Notwithstanding the foregoing, protest thereof and notice the provisions of its dishonor to any party thereto and to such Obligor. The obligations of each Obligor under this Agreement and the Notes and the rights of any holder of Notes to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, Section 3.2 shall not be subject construed to avoid any reduction, limitation, impairment notices or termination (other than by indefeasible payment in full in cash of demands or the Notes and the obligations of the Obligors under this Agreement), whether by reason lapse of any claim of cure periods available to the Lessee under the Guaranteed Agreements or to the Guarantor under Section 3.1 hereof. Anything to the contrary notwithstanding in this Guaranty or any character whatsoever or otherwise other Operative Document, the Guarantor covenants and agrees that this Guaranty shall not be subject to terminated for any defense, set-off, counterclaim reason (other than any compulsory counterclaim), recoupment including if one or termination whatsoever.
(c) Except as otherwise expressly provided in this Agreement, the obligations more of the Obligors hereunder and Guaranteed Agreements is terminated as a result of a compromise or settlement effected between the Indenture Trustee (pursuant to the rights assigned to it by the Lessor under the Notes shall be binding upon Indenture) and the Obligors and their successors and assigns, Lessee or the Guarantor) and shall remain in full force and effect until the entire principal, interest and premium, if any, on the Notes and all other sums due under this Agreement shall have been paid and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including without limitation any of the following, whether or not with notice to or the consent of the Obligors:
(1) the genuineness, validity, regularity or enforceability of the Notes, this Agreement or any other agreement or any of the terms of any thereof, the continuance of any obligation on the part of any Obligor or any other Person on or in respect of the Notes or under this Agreement or any other agreement or the power or authority or the lack of power or authority of any Obligor to issue the Notes or any Obligor to execute and deliver this Agreement or any other agreement or to perform any of its obligations hereunder or the existence or continuance of any Obligor or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by an Obligor or any other Person of any obligations of any kind or character whatsoever under the Notes, this Agreement or any other agreement; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of any Obligor or any other Person or in respect of the property of an Obligor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of an Obligor or any other Person; or
(4) impossibility or illegality of performance on the part of any Obligor or any other Person of its obligations under the Notes, this Agreement or any other agreements; or
(5) in respect of an Obligor or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to an Obligor or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of an Obligor or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against an Obligor or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by an Obligor or any other Person, or against any sums payable in respect of the Notes or under this Agreement, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by an Obligor or any other Person of its respective obligations under or in respect of the Notes, this Agreement or any other agreement; or
(8) the failure of any Obligor to receive any benefit from or as a result of its execution, delivery and performance of this Agreement; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Obligor of failure of an Obligor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, this Agreement or any other agreement or failure to resort for payment to an Obligor or to any other Person or to any other Agreement or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other agreement, the advance of additional money to an Obligor or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, this Agreement or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any merger or consolidation of an Obligor or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of an Obligor or any other Person to any other Person, or any change in the ownership of any shares of an Obligor or any other Person or any release of any Obligor; or
(12) any defense whatsoever that: (i) an Obligor or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than indefeasible payment thereof in Federal or other immediately available funds, or (ii) an Obligor or any other Person might have to the performance or observance of any of the provisions of the Notes, this Agreement or any other agreement, whether through the satisfaction or purported satisfaction by an Obligor or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise, other than the defense of indefeasible payment in full in cash of the Notes; or
(13) any act or failure to act with regard to the Notes, this Agreement or any other agreement or anything which might vary the risk of any Obligor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Obligor or any other Person in respect of the obligations of any Obligor or other Person under this Agreement or any other agreement, other than the defense of indefeasible payment in full in cash of the Notes; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Agreement and the Notes and the parties hereto that the obligations of each Obligor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the indefeasible payment in full in cash of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and all other sums due and payable under this Agreement, at the place specified in and all in the manner and with the effect provided in the Notes and this Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, an Obligor shall default under or in respect of the terms of the Notes or this Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by an Obligor under the Notes or this Agreement shall remain in full force and effect and shall apply to each and every subsequent default.
(d) To the extent of any payments made under this Agreement, each Obligor making such payment shall have a right of contribution from the other Obligors, but such Obligor covenants and agrees that such right of contribution shall be subordinate in right of payment to the rights of the holder of Notes for which full payment has not been made or provided for and, to that end, such Obligor agrees not to claim or enforce any such right of contribution unless and until final and indefeasible payment and performance by the Guarantor of all Guaranteed Obligations (including the payment by the Guarantor of the Notes and Equity Portion of all other sums amounts due and payable under this Agreement have been fully and irrevocably paid and dischargedthe Guaranteed Agreements).
(e) Each Obligor agrees that to the extent an Obligor or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Obligors’ obligations hereunder, as if said payment had not been made. The liability of the Obligors hereunder shall not be reduced or discharged, in whole or in part, by any payment to any holder of a Note from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(f) No holder of a Note shall be under any obligation: (1) to marshal any assets in favor of the Obligors or in payment of any or all of the liabilities of any Obligor under or in respect of the Notes or the obligations of the Obligors hereunder or (2) to pursue any other remedy that the Obligors may or may not be able to pursue themselves and that may lighten the Obligors’ burden, any right to which each Obligor hereby expressly waives.
(g) Notwithstanding anything to the contrary in this Agreement, including this Section 22.9, all obligations and liabilities of an Obligor under this Agreement, the Notes and any Joinder Agreement shall automatically, without any action on the part of any party hereto, terminate and be void and of no further force and effect with respect to such Obligor (or any successor thereto or assign thereof) if and when such Obligor (or any successor thereto or assign thereof) is released from this Agreement, the Notes and any Joinder Agreement by reason of the express provisions of Section 2.2 of this Agreement or is otherwise released from this Agreement, the Notes and any Joinder Agreement in accordance with the terms of this Agreement.
Appears in 1 contract
Sources: Guaranty (Spinnaker Exploration Co)
Nature of Obligations. (a) The obligations of the Obligors under this Agreement and the Notes are joint and several primary obligations of each Obligor regardless of which Obligor actually receives the proceeds of any Notes or the manner in which the Obligors, any Purchaser or any holder thereof accounts for such Notes on its books and records.
(b) Each Obligor hereby waives, to the fullest extent permitted by law:
(1) notice of the creation, renewal or accrual of any liability of an Obligor, present or future, or of the reliance of such holder of Notes upon this Agreement (it being understood that every Indebtedness, liability and obligation described in this Agreement or the Notes shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Agreement and the Notes);
(2) demand of payment by any holder of Notes from an Obligor or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any holder of Notes or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Obligor. The obligations of each Obligor under this Agreement and the Notes and the rights of any holder of Notes to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by indefeasible payment in full in cash of the Notes and the obligations of the Obligors under this Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.. Table of Contents
(c) Except as otherwise expressly provided in this Agreement, the obligations of the Obligors hereunder and under the Notes shall be binding upon the Obligors and their successors and assigns, and shall remain in full force and effect until the entire principal, interest and premium, if any, on the Notes and all other sums due under this Agreement shall have been paid and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including without limitation any of the following, whether or not with notice to or the consent of the Obligors:
(1) the genuineness, validity, regularity or enforceability of the Notes, this Agreement or any other agreement or any of the terms of any thereof, the continuance of any obligation on the part of any Obligor or any other Person on or in respect of the Notes or under this Agreement or any other agreement or the power or authority or the lack of power or authority of any Obligor to issue the Notes or any Obligor to execute and deliver this Agreement or any other agreement or to perform any of its obligations hereunder or the existence or continuance of any Obligor or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by an Obligor or any other Person of any obligations of any kind or character whatsoever under the Notes, this Agreement or any other agreement; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of any Obligor or any other Person or in respect of the property of an Obligor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of an Obligor or any other Person; or
(4) impossibility or illegality of performance on the part of any Obligor or any other Person of its obligations under the Notes, this Agreement or any other agreements; or
(5) in respect of an Obligor or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to an Obligor or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of an Obligor or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against an Obligor or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by an Obligor or any other Person, or against any sums payable in respect of the Notes or under this Agreement, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; oror Table of Contents
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by an Obligor or any other Person of its respective obligations under or in respect of the Notes, this Agreement or any other agreement; or
(8) the failure of any Obligor to receive any benefit from or as a result of its execution, delivery and performance of this Agreement; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Obligor of failure of an Obligor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, this Agreement or any other agreement or failure to resort for payment to an Obligor or to any other Person or to any other Agreement or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other agreement, the advance of additional money to an Obligor or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, this Agreement or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any merger or consolidation of an Obligor or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of an Obligor or any other Person to any other Person, or any change in the ownership of any shares of an Obligor or any other Person or any release of any Obligor; or
(12) any defense whatsoever that: (i) an Obligor or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than indefeasible payment thereof in Federal or other immediately available funds, or (ii) an Obligor or any other Person might have to the performance or observance of any of the provisions of the Notes, this Agreement or any other agreement, whether through the satisfaction or purported satisfaction by an Obligor or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise, other than the defense of indefeasible payment in full in cash of the Notes; or
(13) any act or failure to act with regard to the Notes, this Agreement or any other agreement or anything which might vary the risk of any Obligor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Obligor or any other Person in respect of the obligations of any Obligor or other Person under this Agreement or any other agreement, other than the defense of indefeasible payment in full in cash of the Notes; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Agreement and the Notes and the parties hereto that the obligations of each Obligor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the indefeasible payment in full in cash of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and all other sums due and payable under this Agreement, at the place specified in and all in the manner and with the effect provided in the Notes and this Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, an Obligor shall default under or in respect of the terms of the Notes or this Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by an Obligor under the Notes or this Agreement shall remain in full force and effect and shall apply to each and every subsequent default.
(d) To the extent of any payments made under this Agreement, each Obligor making such payment shall have a right of contribution from the other Obligors, but such Obligor covenants and agrees that such right of contribution shall be subordinate in right of payment to the rights of the holder of Notes for which full payment has not been made or provided for and, to that end, such Obligor agrees not to claim or enforce any such right of contribution unless and until all of the Notes and all other sums due and payable under this Agreement have been fully and irrevocably paid and discharged.
(e) Each Obligor agrees that to the extent an Obligor or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Obligors’ obligations hereunder, as if said payment had not been made. The liability of the Obligors hereunder shall not be reduced or discharged, in whole or in part, by any payment to any holder of a Note from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(f) No holder of a Note shall be under any obligation: (1) to marshal any assets in favor of the Obligors or in payment of any or all of the liabilities of any Obligor under or in respect of the Notes or the obligations of the Obligors hereunder or (2) to pursue any other remedy that the Obligors may or may not be able to pursue themselves and that may lighten the Obligors’ burden, any right to which each Obligor hereby expressly waives.
(g) Notwithstanding anything to the contrary in this Agreement, including this Section 22.9, all obligations and liabilities of an Obligor under this Agreement, the Notes and any Joinder Agreement shall automatically, without any action on the part of any party hereto, terminate and be void and of no further force and effect with respect to such Obligor (or any successor thereto or assign thereof) if and when such Obligor (or any successor thereto or assign thereof) is released from this Agreement, the Notes and any Joinder Agreement by reason of the express provisions of Section 2.2 of this Agreement or is otherwise released from this Agreement, the Notes and any Joinder Agreement in accordance with the terms of this Agreement.;
Appears in 1 contract
Nature of Obligations. (a) The Subject to the Maximum Guaranty Amount, the obligations and liabilities of the Guarantors under this Agreement are primary obligations of the Obligors under this Agreement and the Notes Guarantors, are joint and several primary obligations of each Obligor regardless of which Obligor actually receives the proceeds of any Notes or the manner in which the Obligorsseveral, any Purchaser or any holder thereof accounts for such Notes on its books absolute, unconditional and records.
(b) Each Obligor hereby waives, to the fullest extent permitted by law:
(1) notice of the creation, renewal or accrual of any liability of an Obligor, present or future, or of the reliance of such holder of Notes upon this Agreement (it being understood that every Indebtedness, liability and obligation described in this Agreement or the Notes shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Agreement and the Notes);
(2) demand of payment by any holder of Notes from an Obligor or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any holder of Notes or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Obligor. The obligations of each Obligor under this Agreement and the Notes and the rights of any holder of Notes to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwiseirrevocable, shall not be subject to any reductioncounterclaim, limitation, impairment or termination (other than by indefeasible payment in full in cash of the Notes and the obligations of the Obligors under this Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defenserecoupment, set-off, counterclaim reduction or defense based on any claim that the Guarantors or either of them may have against the Lender (other than any compulsory counterclaimthe defense of payment or performance), recoupment any Obligor or termination whatsoever.
(c) Except as otherwise expressly provided in this Agreement, the obligations any of the Obligors hereunder and under the Notes shall be binding upon the Obligors and their successors and assignsrespective affiliates, and shall remain in full force and effect until the entire principalterminated in accordance with Section 16 (subject to reinstatement as provided in Section 17), interest without regard to, and premiumwithout being released, if anydischarged, on the Notes and all other sums due under this Agreement shall have been paid and such obligations shall not be affectedimpaired, modified or impaired upon in any way affected by, the happening occurrence from time to time of any event, circumstance or condition, including without limitation any one or more of the following, whether or not with notice to to, or the consent of, the Guarantors or either of the Obligors:
them: (1a) the genuineness, validity, regularity invalidity or enforceability of the Notes, this Agreement or any other agreement or any of the terms of any thereof, the continuance of any obligation on the part of any Obligor or any other Person on or in respect of the Notes or under this Agreement or any other agreement or the power or authority or the lack of power or authority of any Obligor to issue the Notes or any Obligor to execute and deliver this Agreement or any other agreement or to perform any of its obligations hereunder or the existence or continuance of any Obligor or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by an Obligor or any other Person of any obligations of any kind or character whatsoever under the Notes, this Agreement or any other agreement; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of any Obligor or any other Person or in respect of the property of an Obligor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of an Obligor or any other Person; or
(4) impossibility or illegality of performance on the part of any Obligor or any other Person of its obligations under the Notes, this Agreement or any other agreements; or
(5) in respect of an Obligor or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to an Obligor or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of an Obligor or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against an Obligor or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by an Obligor or any other Person, or against any sums payable in respect of the Notes or under this Agreement, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by an Obligor or any other Person of its respective obligations under or in respect of the Notes, this Agreement or any other agreement; or
(8) the failure of any Obligor to receive any benefit from or as a result of its execution, delivery and performance of this Agreement; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Obligor of failure of an Obligor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, this Agreement or any other agreement or failure to resort for payment to an Obligor or to any other Person or to any other Agreement or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other agreement, the advance of additional money to an Obligor or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, this Agreement or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any merger or consolidation of an Obligor or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of an Obligor or any other Person to any other Person, or any change in the ownership of any shares of an Obligor or any other Person or any release of any Obligor; or
(12) any defense whatsoever that: (i) an Obligor or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than indefeasible payment thereof in Federal or other immediately available funds, or (ii) an Obligor or any other Person might have to the performance or observance of any of the provisions of the Notes, this Agreement or any other agreement, whether through the satisfaction or purported satisfaction by an Obligor or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise, other than the defense of indefeasible payment in full in cash of the Notes; or
(13) any act or failure to act with regard to the Notes, this Agreement or any other agreement or anything which might vary the risk of any Obligor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Obligor or any other Person in respect of the obligations of any Obligor or other Person under this Agreement or any other agreement, other than the defense of indefeasible payment in full in cash of the Notes; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Agreement and the Notes and the parties hereto that the obligations of each Obligor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the indefeasible payment in full in cash of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and all other sums due and payable under this Agreement, at the place specified in and all in the manner and with the effect provided in the Notes and this Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, an Obligor shall default under or in respect of the terms of the Notes or this Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by an Obligor under the Notes or this Agreement shall remain in full force and effect and shall apply to each and every subsequent default.
(d) To the extent of any payments made under this Agreement, each Obligor making such payment shall have a right of contribution from the other Obligors, but such Obligor covenants and agrees that such right of contribution shall be subordinate in right of payment to the rights of the holder of Notes for which full payment has not been made or provided for and, to that end, such Obligor agrees not to claim or enforce any such right of contribution unless and until all of the Notes and all other sums due and payable under this Agreement have been fully and irrevocably paid and discharged.
(e) Each Obligor agrees that to the extent an Obligor or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Obligors’ obligations hereunder, as if said payment had not been made. The liability of the Obligors hereunder shall not be reduced or dischargedunenforceability, in whole or in part, of any of the Credit Documents; (b) any failure or refusal to give notice to the Guarantors or either of them of the occurrence of any event of default under any of the Credit Documents; (c) any modification, amendment or supplement (whether material or otherwise) of any obligation, covenant or agreement contained in any of the Credit Documents or of the terms of payment of any of the Obligations or the interest rate applicable thereto; (d) any assignment or transfer (whether voluntarily or by operation of law) of the Loan or of any of the Credit Documents or of any interest therein or thereunder; (e) any compromise, settlement, release or termination of any of the obligations or agreements of any Obligor under any of the Credit Documents; (f) any waiver of the payment, performance or observance of any Obligor's obligations or agreements under any of the Credit Documents; (g) any consent, extension, indulgence or other action or inaction (including any lack of diligence or failure to mitigate damages) with respect to any of the Credit Documents, or any exercise or non-exercise of any right, power, remedy or privilege with respect to any of the Credit Documents; (h) any failure or omission to exercise any right, power, privilege or remedy under any of the Credit Documents; (i) any extension of time for payment or performance of any of the Obligations or any other obligations or agreements under any of the Credit Documents; (j) any furnishing or accepting of additional Property, or any release, modification, substitution, nonexistence, invalidity or lack of value of any Property; (k) the death of, voluntary or involuntary liquidation, reorganization or dissolution of, sale or other disposition of all or substantially all the assets of, or the marshalling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, merger, consolidation, other reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, any Obligor or any of such Obligor's assets, or any action taken by any payment trustee, receiver, custodian or other officer with similar powers (collectively, a "custodian") or by any court in any such proceeding, or the disaffirmance, rejection or postponement in any such proceeding of any Obligor's obligations under any of the Credit Documents; (l) any failure of the Lender, upon the occurrence of any of the events specified in Section 6(k), to file a claim or proof of claim or otherwise pursue any holder of a Note its remedies in any proceeding resulting from such event; (m) any source that is thereafter paidrelease or discharge (by act or omission of the Lender, returned operation of law or refunded otherwise) of any Obligor from the performance or observance of any obligation, agreement or condition to be performed by such Obligor under any of the Credit Documents; (n) any limitation on or exculpation from the liabilities or obligations of any Obligor under any of the Credit Documents (whether pursuant to the terms of any of the Credit Documents or otherwise), any termination, cancellation, invalidity or unenforceability, in whole or in part by reason part, of any of the assertion Credit Documents or any limitation that may now or hereafter exist with respect to any of a the Credit Documents; (o) any failure on the part of any Obligor fully to perform or to comply with any provision of any of the Credit Documents; (p) any claim of the Guarantors against any kind relating thereto, including, but not limited toObligor; (q) any understanding or agreement that any other person was or is to execute this Agreement, any claim similar agreement or any of the Credit Documents or otherwise become liable, in whole or in part, for breach any of contractthe Obligations; (r) any understanding or agreement that any other person was or is to grant any Property, in whole or in part, to secure any of the Obligations; (s) any defense or counterclaim that the Borrower may assert with respect to any of the Obligations, including failure of consideration, breach of warranty, preferencefraud, illegalitystatute of frauds, invaliditybankruptcy, infancy, statute of limitations, lender liability, accord and satisfaction and usury; or (t) any other circumstance, occurrence or condition, whether similar or dissimilar to any of the foregoing, that might be raised in avoidance of, or fraud asserted by any account debtor or by any other Person.
(f) No holder of a Note shall be under any obligation: (1) in defense against an action to marshal any assets in favor of the Obligors or in payment of any or all of the liabilities of any Obligor under or in respect of the Notes or enforce, the obligations of the Obligors hereunder Guarantors or (2) to pursue any other remedy that the Obligors may or may not be able to pursue themselves and that may lighten the Obligors’ burden, any right to which each Obligor hereby expressly waives.
(g) Notwithstanding anything to the contrary in this Agreement, including this Section 22.9, all obligations and liabilities either of an Obligor them under this Agreement, other than the Notes and any Joinder Agreement shall automaticallydefense of discharge by payment in full; PROVIDED, THAT notwithstanding the foregoing, no material amendment, waiver or modification that affects the Obligations may be made without any action on the part of any party hereto, terminate and be void and of no further force and effect with respect to such Obligor (or any successor thereto or assign thereof) if and when such Obligor (or any successor thereto or assign thereof) is released from this Agreement, the Notes and any Joinder Agreement by reason prior written consent of the express provisions of Section 2.2 of this Agreement or is otherwise released from this Agreement, the Notes and any Joinder Agreement in accordance with the terms of this AgreementGuarantors.
Appears in 1 contract
Sources: Limited Guaranty Agreement (Metromedia International Group Inc)
Nature of Obligations. (a) The All obligations of the Obligors Guarantor under this Agreement Guaranty shall be absolute, unconditional, continuing and the Notes are joint and several primary obligations of each Obligor regardless of which Obligor actually receives the proceeds of any Notes or the manner in which the Obligors, any Purchaser or any holder thereof accounts for such Notes on its books and records.
(b) Each Obligor hereby waives, to the fullest extent permitted by law:
(1) notice irrevocable irrespective of the creationgenuineness, renewal validity, regularity or accrual of any liability of an Obligor, present or future, or enforceability of the reliance of such holder of Notes upon this Agreement (it being understood that every Indebtedness, liability and obligation described in this Agreement or the Notes shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Agreement and the Notes);
(2) demand of payment by any holder of Notes from an Obligor or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any holder of Notes or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Obligor. The obligations of each Obligor under this Agreement and the Notes and the rights of any holder of Notes to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by indefeasible payment in full in cash of the Notes and the obligations of the Obligors under this Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) Except as otherwise expressly provided in this Reimbursement Agreement, the obligations of Security Instruments or the Obligors hereunder and under the Notes shall be binding upon the Obligors and their successors and assigns, Bonds and shall remain in full force and effect until all amounts payable by the entire principal, interest and premium, if any, on Borrower pursuant to the Notes and all other sums due under this terms of the Reimbursement Agreement shall have been paid and or shall be deemed to have been paid in accordance with the terms thereof and, until such obligations payment, or the occurrence of those conditions upon which payment shall be deemed to have occurred, shall not be affected, modified modified, impaired or impaired discharged upon the happening from time to time of any event, including including, without limitation limitation, any of the following, whether or not with notice to or the consent of the ObligorsGuarantor:
(1a) the genuineness, validity, regularity any lack of validity or enforceability of the NotesLetter of Credit, this Agreement the Bonds, any of the other Bond Documents (as defined in the Reimbursement Agreement), any of the Security Instruments (as defined in the Reimbursement Agreement) or any other agreement or instrument related thereto; (b) any amendment or waiver of or any consent to departure from the terms of the Letter of Credit, the Bonds, any of the terms of other Bond Documents, any thereof, the continuance of any obligation on the part of any Obligor or any other Person on or in respect of the Notes or under this Agreement Security Instruments or any other agreement or instrument related thereto; (c) the power existence of any claim, set off, defense or authority other right which any of the Guarantor or the lack of power or authority of Borrower may have at any Obligor to issue time against the Notes Trustee, any beneficiary or any Obligor to execute and deliver this Agreement transferee of the Letter of Credit (or any person for whom the Trustee, any such beneficiary or any such transferee may be acting), the Bank or any other agreement person, whether in connection with Reimbursement Agreement, the Security Instruments, the Letter of Credit, the Bond Documents, the Project (as defined in the Reimbursement Agreement) or to perform any unrelated transaction; (d) any statement, draft or other document presented by or on behalf of its obligations hereunder the Borrower or the existence or continuance of any Obligor or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by an Obligor or any other Person of any obligations of any kind or character whatsoever Guarantor under the NotesLetter of Credit proving to be forged, this Agreement fraudulent, invalid or insufficient in any other agreement; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of any Obligor or any other Person or in respect of the property of an Obligor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of an Obligor or any other Person; or
(4) impossibility or illegality of performance on the part of any Obligor or any other Person of its obligations under the Notes, this Agreement or any other agreements; or
(5) in respect of an Obligor or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to an Obligor or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performancerespect, or any other force majeure, whether statement therein being untrue or not beyond the control of an Obligor or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against an Obligor or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by an Obligor or any other Person, or against any sums payable in respect of the Notes or under this Agreement, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or inaccurate in any way adversely affect, the performance by an Obligor or any other Person of its respective obligations under or in respect of the Notes, this Agreement or any other agreementwhatsoever; or
(8) the failure of any Obligor to receive any benefit from or as a result of its execution, delivery and performance of this Agreement; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Obligor of failure of an Obligor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, this Agreement or any other agreement or failure to resort for payment to an Obligor or to any other Person or to any other Agreement or to any property, security, Liens or other rights or remedies; or
(10e) the acceptance of any additional security surrender, exchange or other agreement, the advance of additional money to an Obligor or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, this Agreement or any other agreement, or the sale, release, substitution or exchange impairment of any security for the Notes; or
(11) any merger or consolidation of an Obligor or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of an Obligor or any other Person to any other Person, or any change in the ownership of any shares of an Obligor or any other Person or any release of any Obligor; or
(12) any defense whatsoever that: (i) an Obligor or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than indefeasible payment thereof in Federal or other immediately available funds, or (ii) an Obligor or any other Person might have to the performance or observance of any of the provisions terms of the Notes, this Agreement Reimbursement Agreement; or any other agreement, whether through the satisfaction or purported satisfaction by an Obligor or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise, other than the defense of indefeasible payment in full in cash of the Notes; or
(13) any act or failure to act with regard to the Notes, this Agreement or any other agreement or anything which might vary the risk of any Obligor or any other Person; or
(14f) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Obligor the Borrower or any other Person in respect of the Guarantor, except subject to the qualification that obligations of any Obligor or other Person under this Agreement or any other agreementmay be reinstated upon bankruptcy, other than the defense of indefeasible notwithstanding payment in full in cash of the Notes; provided that Borrower's obligations to the specific enumeration of Bank. Notwithstanding anything herein to the above-mentioned actscontrary, failures or omissions the waivers extended by the Guarantor above shall not be deemed construed to exclude prevent the Guarantor from pursuing in a separate and unrelated action any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Agreement and the Notes and the parties hereto claims that the obligations of each Obligor shall be absolute and unconditional and shall not be discharged, impaired or varied except by Guarantor may have against the indefeasible payment in full in cash of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and all other sums due and payable under this Agreement, at the place specified in and all in the manner and with the effect provided in the Notes and this Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, an Obligor shall default under or in respect of the terms of the Notes or this Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by an Obligor under the Notes or this Agreement shall remain in full force and effect and shall apply to each and every subsequent defaultBank.
(d) To the extent of any payments made under this Agreement, each Obligor making such payment shall have a right of contribution from the other Obligors, but such Obligor covenants and agrees that such right of contribution shall be subordinate in right of payment to the rights of the holder of Notes for which full payment has not been made or provided for and, to that end, such Obligor agrees not to claim or enforce any such right of contribution unless and until all of the Notes and all other sums due and payable under this Agreement have been fully and irrevocably paid and discharged.
(e) Each Obligor agrees that to the extent an Obligor or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Obligors’ obligations hereunder, as if said payment had not been made. The liability of the Obligors hereunder shall not be reduced or discharged, in whole or in part, by any payment to any holder of a Note from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(f) No holder of a Note shall be under any obligation: (1) to marshal any assets in favor of the Obligors or in payment of any or all of the liabilities of any Obligor under or in respect of the Notes or the obligations of the Obligors hereunder or (2) to pursue any other remedy that the Obligors may or may not be able to pursue themselves and that may lighten the Obligors’ burden, any right to which each Obligor hereby expressly waives.
(g) Notwithstanding anything to the contrary in this Agreement, including this Section 22.9, all obligations and liabilities of an Obligor under this Agreement, the Notes and any Joinder Agreement shall automatically, without any action on the part of any party hereto, terminate and be void and of no further force and effect with respect to such Obligor (or any successor thereto or assign thereof) if and when such Obligor (or any successor thereto or assign thereof) is released from this Agreement, the Notes and any Joinder Agreement by reason of the express provisions of Section 2.2 of this Agreement or is otherwise released from this Agreement, the Notes and any Joinder Agreement in accordance with the terms of this Agreement.
Appears in 1 contract
Nature of Obligations. (a) Notwithstanding anything to the contrary contained elsewhere in this Agreement or any other Loan Document, it is understood and agreed by the various parties to this Agreement that all Obligations to repay principal of, interest on, and all other amounts with respect to, all Loans and all other Obligations pursuant to this Agreement and each other Loan Document (including all fees, indemnities, taxes and other Obligations in connection therewith or in connection with the related Revolving Commitments) shall constitute the obligations of the Borrower. In addition to the direct obligations of the Borrower with respect to Obligations as described above, all such Obligations shall be guaranteed pursuant to, and in accordance with the terms of, the Guarantees.
(b) The obligations of the Obligors under this Agreement and Borrower with respect to the Notes Obligations are joint and several primary independent of the obligations of the Guarantors under the Guarantees of such Obligations, and a separate action or actions may be brought and prosecuted against the Borrower and each Obligor regardless of which Obligor actually receives the proceeds of Guarantor (in its capacity as a Guarantor), whether or not any Notes Guarantor is joined in any such action or the manner in which the Obligors, any Purchaser or any holder thereof accounts for such Notes on its books and records.
(b) Each Obligor hereby actions. The Borrower waives, to the fullest extent permitted by law, the benefit of any statute of limitations affecting its liability hereunder or the enforcement thereof. AMERICAS 101798741 60
(c) The Borrower authorizes the Administrative Agent, the Collateral Agent and the Lenders without notice or demand (except as shall be required by applicable statute and cannot be waived), and without affecting or impairing its liability hereunder, from time to time to, to the maximum extent permitted by applicable law and the Loan Documents:
(1i) notice exercise or refrain from exercising rights against any Guarantor or others or otherwise act or refrain from acting;
(ii) release or substitute endorsers, Guarantors or other obligors;
(iii) settle or compromise any of the creationObligations of any other Loan Party, renewal any security therefor or accrual any liability (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any liability (whether due or not) of an Obligorthe Borrower to its creditors other than the Lenders;
(iv) apply any sums paid by any other person, present howsoever realized to any liability or futureliabilities of the Borrower or other person regardless of what liability or liabilities of such other Borrower or other person remain unpaid; and/or
(v) consent to or waive any breach of, or of the reliance of such holder of Notes upon this Agreement (it being understood that every Indebtednessact, liability and obligation described in omission or default under, this Agreement or any of the Notes shall conclusively be presumed instruments or agreements referred to have been createdherein, contracted or incurred otherwise, by any person.
(d) It is not necessary for the Administrative Agent, the Collateral Agent or any Lender to inquire into the capacity or powers of the Borrower or any of its Subsidiaries or the officers, directors, members, partners or agents acting or purporting to act on its behalf, and any Obligations made or created in reliance upon the execution professed exercise of this Agreement and such powers shall constitute the Notes);obligations of the Borrower.
(2e) demand of payment by The Borrower waives any holder of Notes from an Obligor right to require the Administrative Agent, the Collateral Agent or the Lenders to (a) proceed against any Guarantor or any other Person indebted in party, (b) proceed against or exhaust any manner on or for security held from the Borrower, any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any holder of Notes Guarantor or any other Person party or (c) pursue any other remedy in the Administrative Agent’s, the Collateral Agent’s or the Lenders’ power whatsoever. The Borrower waives any defense based on or arising out of suretyship or any impairment of security held from the Notes Borrower, any Guarantor or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Obligor. The obligations of each Obligor under this Agreement and the Notes and the rights or on or arising out of any holder defense of Notes to enforce such obligations by any proceedings, whether by action at law, suit in equity Guarantor or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other party other than by indefeasible payment in full in cash of the Notes and the obligations Obligations, including any defense based on or arising out of the Obligors under this Agreement), whether by reason disability of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) Except as otherwise expressly provided in this Agreement, the obligations of the Obligors hereunder and under the Notes shall be binding upon the Obligors and their successors and assigns, and shall remain in full force and effect until the entire principal, interest and premium, if any, on the Notes and all other sums due under this Agreement shall have been paid and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including without limitation any of the following, whether or not with notice to or the consent of the Obligors:
(1) the genuineness, validity, regularity or enforceability of the Notes, this Agreement Guarantor or any other agreement party, or the unenforceability of the Obligations or any of the terms of part thereof from any thereof, the continuance of any obligation on the part of any Obligor or any other Person on or in respect of the Notes or under this Agreement or any other agreement or the power or authority or the lack of power or authority of any Obligor to issue the Notes or any Obligor to execute and deliver this Agreement or any other agreement or to perform any of its obligations hereunder or the existence or continuance of any Obligor or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwisecause, in the performance by an Obligor or any each case other Person of any obligations of any kind or character whatsoever under the Notes, this Agreement or any other agreement; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of any Obligor or any other Person or in respect of the property of an Obligor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of an Obligor or any other Person; or
(4) impossibility or illegality of performance on the part of any Obligor or any other Person of its obligations under the Notes, this Agreement or any other agreements; or
(5) in respect of an Obligor or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to an Obligor or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of an Obligor or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against an Obligor or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by an Obligor or any other Person, or against any sums payable in respect of the Notes or under this Agreement, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by an Obligor or any other Person of its respective obligations under or in respect of the Notes, this Agreement or any other agreement; or
(8) the failure of any Obligor to receive any benefit from or than as a result of its execution, delivery and performance of this Agreement; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Obligor of failure of an Obligor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, this Agreement or any other agreement or failure to resort for payment to an Obligor or to any other Person or to any other Agreement or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other agreement, the advance of additional money to an Obligor or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, this Agreement or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any merger or consolidation of an Obligor or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of an Obligor or any other Person to any other Person, or any change in the ownership of any shares of an Obligor or any other Person or any release of any Obligor; or
(12) any defense whatsoever that: (i) an Obligor or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than indefeasible payment thereof in Federal or other immediately available funds, or (ii) an Obligor or any other Person might have to the performance or observance of any of the provisions of the Notes, this Agreement or any other agreement, whether through the satisfaction or purported satisfaction by an Obligor or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise, other than the defense of indefeasible payment in full in cash of the Notes; or
(13) any act or failure to act with regard to the Notes, this Agreement or any other agreement or anything which might vary the risk of any Obligor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Obligor or any other Person in respect of the obligations of any Obligor or other Person under this Agreement or any other agreement, other than the defense of indefeasible payment in full in cash of the Notes; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Agreement and the Notes and the parties hereto that the obligations of each Obligor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the indefeasible payment in full in cash of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and all other sums due and payable under this Agreement, at the place specified in and all in the manner and with the effect provided in the Notes and this Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, an Obligor shall default under or in respect of the terms of the Notes or this Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by an Obligor under the Notes or this Agreement shall remain in full force and effect and shall apply to each and every subsequent defaultObligations.
(d) To the extent of any payments made under this Agreement, each Obligor making such payment shall have a right of contribution from the other Obligors, but such Obligor covenants and agrees that such right of contribution shall be subordinate in right of payment to the rights of the holder of Notes for which full payment has not been made or provided for and, to that end, such Obligor agrees not to claim or enforce any such right of contribution unless and until all of the Notes and all other sums due and payable under this Agreement have been fully and irrevocably paid and discharged.
(e) Each Obligor agrees that to the extent an Obligor or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Obligors’ obligations hereunder, as if said payment had not been made. The liability of the Obligors hereunder shall not be reduced or discharged, in whole or in part, by any payment to any holder of a Note from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(f) No holder of a Note shall be under any obligation: (1) to marshal any assets in favor of the Obligors or in payment of any or all of the liabilities of any Obligor under or in respect of the Notes or the obligations of the Obligors hereunder or (2) to pursue any other remedy that the Obligors may or may not be able to pursue themselves and that may lighten the Obligors’ burden, any right to which each Obligor hereby expressly waives.
(g) Notwithstanding anything to the contrary in this Agreement, including this Section 22.9, all obligations and liabilities of an Obligor under this Agreement, the Notes and any Joinder Agreement shall automatically, without any action on the part of any party hereto, terminate and be void and of no further force and effect with respect to such Obligor (or any successor thereto or assign thereof) if and when such Obligor (or any successor thereto or assign thereof) is released from this Agreement, the Notes and any Joinder Agreement by reason of the express provisions of Section 2.2 of this Agreement or is otherwise released from this Agreement, the Notes and any Joinder Agreement in accordance with the terms of this Agreement.
Appears in 1 contract
Nature of Obligations. (a) The obligations Guarantor guarantees that the Obligations shall be performed strictly in accordance with the terms of the Obligors Equity Contribution Agreement, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Guaranteed Party with respect thereto. The duties of the Guarantor under this Agreement Guaranty are independent of the Obligations, and a separate action or actions may be brought and prosecuted against the Notes are joint Guarantor to enforce this Guaranty, irrespective of whether any action is brought against the Contributing Partner or whether the Contributing Partner is joined in any such action or actions. The Guaranteed Party shall not be obligated to file any claim relating to the Obligations if the Contributing Partner becomes subject to a bankruptcy, reorganization or similar proceeding, and several primary obligations neither the failure of each Obligor regardless of which Obligor actually receives the proceeds Guaranteed Party to so file, nor the existence of any Notes such proceeding, shall affect the Guarantor's obligations hereunder with respect to Obligations arising either before or after the manner commencement of such proceedings. The liability of the Guarantor under this Guaranty as specified in which the Obligors, any Purchaser or any holder thereof accounts for such Notes on its books and records.
(b) Each Obligor hereby waivesSection 1 of this Guaranty shall, to the fullest extent permitted by law, be absolute and unconditional irrespective of:
(1a) notice any change in the time, manner or place of payment of, or in any other term of, all or any of the creation, renewal or accrual of any liability of an Obligor, present or futureObligations, or any other amendment or waiver of or any consent to departure from the Equity Contribution Agreement including, without limitation, any increase in the Obligations; provided, however, no action taken pursuant to this Section 3(a) shall be construed to increase the amount of the reliance of such holder of Notes upon this Agreement (it being understood that every Indebtedness, liability and obligation described in this Agreement or the Notes shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Agreement and the Notes)Guaranty Cap;
(2b) demand any manner of payment by any holder sale or other disposition of Notes from an Obligor the stock in or the assets of the Contributing Partner or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any holder of Notes or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Obligor. The obligations of each Obligor under this Agreement and the Notes and the rights of any holder of Notes to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by indefeasible payment in full in cash of the Notes and the obligations of the Obligors under this Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.affiliates;
(c) Except as otherwise expressly provided in this Agreementany change, restructuring or termination of the structure or existence of the Contributing Partner, the obligations of the Obligors hereunder and under the Notes shall be binding upon the Obligors and their successors and assigns, and shall remain in full force and effect until the entire principal, interest and premium, if any, on the Notes and all other sums due under this Agreement shall have been paid and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including without limitation any of the following, whether or not with notice to or the consent of the Obligors:
(1) the genuineness, validity, regularity or enforceability of the Notes, this Agreement or any other agreement Guarantor or any of the terms of any thereof, the continuance of any obligation on the part of any Obligor or any other Person on or in respect of the Notes or under this Agreement or any other agreement or the power or authority or the lack of power or authority of any Obligor to issue the Notes or any Obligor to execute and deliver this Agreement or any other agreement or to perform any of its obligations hereunder or the existence or continuance of any Obligor or any other Person as a legal entity; ortheir affiliates;
(2d) any default, failure or delay, willful or otherwise, in the performance by an Obligor or any other Person of any obligations of any kind or character whatsoever under the Notes, this Agreement or any other agreement; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of any Obligor or any other Person or in respect of the property of an Obligor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of an Obligor or any other Person; or
(4) impossibility or illegality of performance on the part of any Obligor or any other Person of its obligations under the Notes, this Agreement or any other agreements; or
(5) in respect of an Obligor or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to an Obligor or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of an Obligor or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against an Obligor or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by an Obligor or any other Person, or against any sums payable in respect of the Notes or under this Agreement, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by an Obligor or any other Person of its respective obligations under or in respect of the Notes, this Agreement or any other agreement; or
(8) the failure of any Obligor to receive any benefit from or as a result of its execution, delivery and performance of this Agreement; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Obligor of failure of an Obligor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, this Agreement or any other agreement or failure to resort for payment to an Obligor or to any other Person or to any other Agreement or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other agreement, the advance of additional money to an Obligor or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, this Agreement or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any merger or consolidation of an Obligor or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of an Obligor or any other Person to any other Person, or any change in the ownership of any shares of an Obligor or any other Person or any release of any Obligor; or
(12) any defense whatsoever that: (i) an Obligor or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than indefeasible payment thereof in Federal or other immediately available funds, or (ii) an Obligor or any other Person might have to the performance or observance of any of the provisions of the Notes, this Agreement or any other agreement, whether through the satisfaction or purported satisfaction by an Obligor or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise, other than the defense of indefeasible payment in full in cash of the Notes; or
(13) any act or failure to act with regard to the Notes, this Agreement or any other agreement or anything which might vary the risk of any Obligor or any other Person; or
(14) any other circumstance which might otherwise constitute a an equitable defense available to, or a discharge of, any Obligor the Guarantor or any other Person in respect of the obligations of any Obligor or other Person under this Agreement surety, or any other agreement, other than the defense of indefeasible payment in full in cash guarantor of the Notes; Contributing Partner. The Guarantor shall not contest the amount, the Guaranteed Party's right to collect, or the Guaranteed Party's collection of, the Obligations (as they may be revised from time to time as provided for herein) in any future proceeding including, without limitation, civil, criminal, regulatory, administrative, judicial, equitable or appellate, on the basis that the specific enumeration of the above-mentioned actsObligations constitute a penalty, failures are or omissions shall not be deemed to exclude any other actswill result in a forfeiture, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Agreement and the Notes and the parties hereto are otherwise unlawful. The Guarantor agrees that the obligations of each Obligor the Guarantor set forth in this Guaranty shall be direct obligations of the Guarantor, and such obligations shall be absolute and unconditional and shall not be dischargedsubject to any counterclaim, impaired set-off, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or varied except defense (other than as set forth in the Equity Contribution Agreement or full and strict compliance by the indefeasible Guarantor with its obligations hereunder) based upon any claim the Guarantor may have against the Guaranteed Party or the Contributing Partner. This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment in full in cash of any of the principal ofObligations is rescinded or must otherwise be returned upon the insolvency, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and all other sums due and payable under this Agreement, at the place specified in and all in the manner and with the effect provided in the Notes and this Agreement, as each may be amended bankruptcy or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, an Obligor shall default under or in respect reorganization of the terms of the Notes Contributing Partner or this Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by an Obligor under the Notes or this Agreement shall remain in full force and effect and shall apply to each and every subsequent default.
(d) To the extent of any payments made under this Agreementotherwise, each Obligor making all as though such payment shall have a right of contribution from the other Obligors, but such Obligor covenants and agrees that such right of contribution shall be subordinate in right of payment to the rights of the holder of Notes for which full payment has not been made or provided for and, to that end, such Obligor agrees not to claim or enforce any such right of contribution unless and until all of the Notes and all other sums due and payable under this Agreement have been fully and irrevocably paid and discharged.
(e) Each Obligor agrees that to the extent an Obligor or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Obligors’ obligations hereunder, as if said payment had not been made. The liability of the Obligors hereunder shall not be reduced or discharged, in whole or in part, by any payment to any holder of a Note from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(f) No holder of a Note shall be under any obligation: (1) to marshal any assets in favor of the Obligors or in payment of any or all of the liabilities of any Obligor under or in respect of the Notes or the obligations of the Obligors hereunder or (2) to pursue any other remedy that the Obligors may or may not be able to pursue themselves and that may lighten the Obligors’ burden, any right to which each Obligor hereby expressly waives.
(g) Notwithstanding anything to the contrary in this Agreement, including this Section 22.9, all obligations and liabilities of an Obligor under this Agreement, the Notes and any Joinder Agreement shall automatically, without any action on the part of any party hereto, terminate and be void and of no further force and effect with respect to such Obligor (or any successor thereto or assign thereof) if and when such Obligor (or any successor thereto or assign thereof) is released from this Agreement, the Notes and any Joinder Agreement by reason of the express provisions of Section 2.2 of this Agreement or is otherwise released from this Agreement, the Notes and any Joinder Agreement in accordance with the terms of this Agreement.
Appears in 1 contract
Sources: Equity Contribution Agreement (Tenaska Georgia Partners Lp)
Nature of Obligations. (a) The obligations of the Obligors Guarantor under this Agreement and the Notes are joint and several primary obligations of each Obligor regardless of which Obligor actually receives the proceeds of any Notes or the manner in which the Obligors, any Purchaser or any holder thereof accounts for such Notes on its books and records.
(b) Each Obligor hereby waives, to the fullest extent permitted by law:
(1) notice of the creation, renewal or accrual of any liability of an Obligor, present or future, or of the reliance of such holder of Notes upon this Agreement (it being understood that every Indebtedness, liability and obligation described in this Agreement or the Notes shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Agreement and the Notes);
(2) demand of payment by any holder of Notes from an Obligor or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any holder of Notes or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Obligor. The obligations of each Obligor under this Agreement and the Notes and the rights of any holder of Notes to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by indefeasible payment in full in cash of the Notes and the obligations of the Obligors under this Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) Except as otherwise expressly provided in this Agreement, the obligations of the Obligors hereunder and under the Notes shall be binding upon the Obligors absolute and their successors and assigns, unconditional and shall remain in full force and effect until the entire principal, interest and premium, if any, on Obligations of the Notes and all other sums due Borrower under this Agreement shall have been paid in full and such satisfied and until the Bank no longer has any obligation to make advances under the Line of Credit, the Letters of Credit and the Improvement Letters of Credit. Such obligations of the Guarantor shall not be affected, modified or impaired upon the happening from time to time of any event, including without limitation limitation, any of the following, whether or not with notice to or the consent of the ObligorsGuarantor:
(1a) the genuinenesscompromise, validitysettlement, regularity release or enforceability termination of the NotesBonds or any or all of the obligations, covenants or agreements of the Borrower under this Agreement;
(b) the failure to give notice to the Guarantor of the occurrence of a default under the terms and provisions of this Agreement except as specifically provided in this Agreement;
(c) the assignment or mortgaging or the purported assignment or mortgaging of all or any part of the interest of the Borrower in the Project;
(d) the waiver of the payment, performance or observance by the Bank or the Guarantor of any of the obligations, covenants or agreements contained in this Agreement;
(e) the extension of the time for payment of any principal installment or interest on the Bonds or any part thereof owing or payable on such Bonds or the Obligations under this Agreement or of the time for performance of any other obligations, covenants or agreements under or arising out of this Agreement or the extension or the renewal of either thereof;
(f) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in this Agreement in accordance with its terms;
(g) the taking or the omission of any of the terms actions referred to in this Agreement and any actions under this Agreement;
(h) any failure, omission, delay or lack of any thereof, the continuance of any obligation diligence on the part of the Bank to enforce, assert or exercise any Obligor right, power or remedy conferred on the Bank by this Agreement, or any other Person act or acts on or in respect the part of the Notes or under this Agreement or any other agreement or the power or authority or the lack of power or authority of any Obligor to issue the Notes or any Obligor to execute and deliver this Agreement or any other agreement or to perform any of its obligations hereunder or the existence or continuance of any Obligor or any other Person as a legal entity; orBank;
(2i) any default, failure the voluntary or delay, willful or otherwise, in the performance by an Obligor or any other Person of any obligations of any kind or character whatsoever under the Notes, this Agreement or any other agreement; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of any Obligor or any other Person or in respect of the property of an Obligor or any other Person or any merger, consolidation, reorganizationinvoluntary liquidation, dissolution, liquidation, the sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantor, the Borrower of any of the assets of or winding up any of an Obligor them or any other Person; orallegation or contest of the validity of this Agreement in any such proceedings;
(4j) impossibility to the extent permitted by law, the release or illegality discharge of the Guarantor from the performance on the part or observance of any Obligor obligation, covenant or any other Person of its obligations under the Notes, agreement contained in this Agreement or any other agreements; orby operation of law;
(5k) in respect of an Obligor or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to an Obligor or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays default or failure of suppliers the Guarantor to fully perform any of its obligations, covenants or carriers, inability to obtain materials, action agreements set forth in this Agreement;
(l) the invalidity of any Federal or state regulatory body or agency, change of law the Bonds or any other causes affecting performanceprovision of the Bonds, or any other force majeure, whether or not beyond the control of an Obligor or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against an Obligor or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by an Obligor or any other Person, or against any sums payable in respect of the Notes or under this Agreement, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by an Obligor or any other Person of its respective obligations under or in respect of the Notes, this Agreement or any other agreement; or
(8) the failure of any Obligor to receive any benefit from or as a result of its execution, delivery and performance of this Agreement; or
(9m) any the default or failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure by the Borrower to give notice to any Obligor of failure of an Obligor or any other Person to keep and fully perform any obligation, covenant or agreement its obligations under the terms of the Notes, this 2008B Loan Agreement or under the 2008B Summit Note, or the default or failure by the Borrower to fully perform its obligations under any other agreement or failure to resort for payment to an Obligor or to any other Person or to any other Agreement or to any property, security, Liens or other rights or remedies; or
(10) between the acceptance of any additional security or other agreement, the advance of additional money to an Obligor or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, this Agreement or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any merger or consolidation of an Obligor or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of an Obligor or any other Person to any other Person, or any change in the ownership of any shares of an Obligor or any other Person or any release of any Obligor; or
(12) any defense whatsoever that: (i) an Obligor or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than indefeasible payment thereof in Federal or other immediately available funds, or (ii) an Obligor or any other Person might have to the performance or observance of any of the provisions of the Notes, this Agreement or any other agreement, whether through the satisfaction or purported satisfaction by an Obligor or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise, other than the defense of indefeasible payment in full in cash of the Notes; or
(13) any act or failure to act with regard to the Notes, this Agreement or any other agreement or anything which might vary the risk of any Obligor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Obligor or any other Person in respect of the obligations of any Obligor or other Person under this Agreement or any other agreement, other than the defense of indefeasible payment in full in cash of the Notes; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Agreement Guarantor and the Notes and the parties hereto that the obligations of each Obligor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the indefeasible payment in full in cash of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and all other sums due and payable under this Agreement, at the place specified in and all in the manner and with the effect provided in the Notes and this Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, an Obligor shall default under or in respect of the terms of the Notes or this Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by an Obligor under the Notes or this Agreement shall remain in full force and effect and shall apply to each and every subsequent defaultBorrower.
(d) To the extent of any payments made under this Agreement, each Obligor making such payment shall have a right of contribution from the other Obligors, but such Obligor covenants and agrees that such right of contribution shall be subordinate in right of payment to the rights of the holder of Notes for which full payment has not been made or provided for and, to that end, such Obligor agrees not to claim or enforce any such right of contribution unless and until all of the Notes and all other sums due and payable under this Agreement have been fully and irrevocably paid and discharged.
(e) Each Obligor agrees that to the extent an Obligor or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Obligors’ obligations hereunder, as if said payment had not been made. The liability of the Obligors hereunder shall not be reduced or discharged, in whole or in part, by any payment to any holder of a Note from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(f) No holder of a Note shall be under any obligation: (1) to marshal any assets in favor of the Obligors or in payment of any or all of the liabilities of any Obligor under or in respect of the Notes or the obligations of the Obligors hereunder or (2) to pursue any other remedy that the Obligors may or may not be able to pursue themselves and that may lighten the Obligors’ burden, any right to which each Obligor hereby expressly waives.
(g) Notwithstanding anything to the contrary in this Agreement, including this Section 22.9, all obligations and liabilities of an Obligor under this Agreement, the Notes and any Joinder Agreement shall automatically, without any action on the part of any party hereto, terminate and be void and of no further force and effect with respect to such Obligor (or any successor thereto or assign thereof) if and when such Obligor (or any successor thereto or assign thereof) is released from this Agreement, the Notes and any Joinder Agreement by reason of the express provisions of Section 2.2 of this Agreement or is otherwise released from this Agreement, the Notes and any Joinder Agreement in accordance with the terms of this Agreement.
Appears in 1 contract
Sources: Reimbursement and Pledge Agreement
Nature of Obligations. (a) The obligations of the Obligors Grantor under this Agreement Agreement, and the Notes are joint grant of security interests hereunder to the Lender shall be continuing, unconditional, irrevocable and several primary obligations of each Obligor regardless of which Obligor actually receives the proceeds absolute and shall be independent of any Notes or obligations of, and any security interests granted by, the manner in which the Obligors, any Purchaser or any holder thereof accounts for such Notes on its books and records.
(b) Each Obligor hereby waives, to the fullest extent permitted by law:
(1) notice of the creation, renewal or accrual of any liability of an Obligor, present or future, or of the reliance of such holder of Notes upon this Agreement (it being understood that every Indebtedness, liability and obligation described in this Agreement or the Notes shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Agreement and the Notes);
(2) demand of payment by any holder of Notes from an Obligor Borrower or any other Person indebted and, without limiting the generality of the foregoing, shall not be released, discharged or otherwise affected by any of the following matters and no right or remedy of the Lender, shall be in any manner on way prejudiced or adversely affected by any of the following matters (whether or not the Lender shall make any reservation of rights against, give or attempt to give any notice to, or request or obtain any further assent of the Grantor with respect to any of the following matters):
(A) any extension, renewal, settlement, compromise, waiver or release in respect of any of the Obligations or any other obligation of the Borrower under the Note, the Purchase Agreement, any other Loan Document, or any other document, instrument or agreement evidencing or securing the Obligations;
(B) any modification or amendment of or supplement to the Note, the Purchase Agreement, any other Loan Document, or any other document, instrument or agreement evidencing or securing the Obligations;
(C) any modification, amendment, waiver, release, compromise, non-perfection or invalidity of any direct or indirect security, or of any guarantee or other liability of any third party, for any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any holder of Notes Obligations or any other Person obligation of the Notes Borrower under the Note, the Purchase Agreement, any other Loan Document, or any other instrumentdocument, protest thereof and notice instrument or agreement evidencing or securing the Obligations;
(D) any change in the partnership or corporate existence, structure or ownership of its dishonor to the Grantor or Borrower, or any party thereto and to such Obligor. The obligations of each Obligor under this Agreement and insolvency, bankruptcy, reorganization or other similar proceeding affecting the Notes and Borrower or the rights Grantor or their respective assets (irrespective of any holder of Notes to enforce such obligations by any proceedings, whether by action at law, suit in equity release or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by indefeasible payment in full in cash deferral of the Notes and the obligations liability of any Guarantor to pay all or any part of the Obligors Obligations or any of the Borrower's or the Grantor's other obligations under this the Note, the Purchase Agreement), whether by reason any other Loan Document, or any other document, instrument or agreement evidencing or securing the Obligations;
(E) the existence of any claim of any character whatsoever or otherwise and shall not be subject to any defenseclaim, set-offoff or other rights which the Grantor or the Borrower may have at any time against the Borrower, counterclaim (the Lender, or any other than any compulsory counterclaim)Person, recoupment whether or termination whatsoever.
(c) Except as otherwise expressly provided not arising in connection with this Agreement, the obligations of Obligations, the Obligors hereunder and under Note, the Notes shall be binding upon the Obligors and their successors and assignsPurchase Agreement, and shall remain in full force and effect until the entire principalany other Loan Document, interest and premium, if any, on the Notes and all other sums due under this Agreement shall have been paid and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including without limitation any of the following, whether or not with notice to or the consent of the Obligors:
(1) the genuineness, validity, regularity or enforceability of the Notes, this Agreement or any other document, instrument or agreement evidencing or securing the Obligations;
(F) any invalidity or unenforceability relating to or against the Borrower for any reason of the terms of any thereofNote, the continuance of Purchase Agreement, any obligation on the part of any Obligor other Loan Document, or any other Person on document, instrument or in respect agreement evidencing or securing the Obligations, or any provision of applicable law or regulation purporting to prohibit the payment by the Borrower of the Notes or under this Agreement Obligations or any other agreement or amount payable by the power or authority or Borrower under the lack of power or authority of any Obligor to issue Note, the Notes or any Obligor to execute and deliver this Agreement Purchase Agreement, or any other document, instrument or agreement evidencing or securing the Obligations;
(G) any invalidity or unenforceability relating to perform or against the Grantor for any reason of its obligations hereunder or and liabilities under the existence or continuance of Note, the Purchase Agreement, any Obligor other Loan Document, or any other Person as a legal entity; ordocument, instrument or agreement evidencing or securing the Obligations;
(2H) any default, other act or failure to act or delay, willful or otherwise, in the performance by an Obligor or any other Person of any obligations delay of any kind or character whatsoever under by the NotesBorrower, this Agreement or any other agreement; or
(3) any creditors’ rightsthe Lender, bankruptcy, receivership or other insolvency proceeding of any Obligor or any other Person or in respect of the property of an Obligor or any other Person or any mergerother circumstance whatsoever that might, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of an Obligor or any other Person; or
(4) impossibility or illegality of performance on the part of any Obligor or any other Person of its obligations under the Notes, this Agreement or any other agreements; or
(5) in respect of an Obligor or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to an Obligor or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of an Obligor or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against an Obligor or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by an Obligor or any other Person, or against any sums payable in respect of the Notes or under this Agreement, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by an Obligor or any other Person of its respective obligations under or in respect of the Notes, this Agreement or any other agreement; or
(8) the failure of any Obligor to receive any benefit from or as a result of its execution, delivery and performance of this Agreement; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand but for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Obligor of failure of an Obligor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, this Agreement or any other agreement or failure to resort for payment to an Obligor or to any other Person or to any other Agreement or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other agreement, the advance of additional money to an Obligor or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, this Agreement or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any merger or consolidation of an Obligor or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of an Obligor or any other Person to any other Person, or any change in the ownership of any shares of an Obligor or any other Person or any release of any Obligor; or
(12) any defense whatsoever that: (i) an Obligor or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than indefeasible payment thereof in Federal or other immediately available funds, or (ii) an Obligor or any other Person might have to the performance or observance of any of the provisions of the Notesthis paragraph, this Agreement or any other agreement, whether through the satisfaction or purported satisfaction by an Obligor or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise, other than the defense of indefeasible payment in full in cash of the Notes; or
(13) any act or failure to act with regard to the Notes, this Agreement or any other agreement or anything which might vary the risk of any Obligor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, legal or a equitable discharge of, any Obligor or any other Person in respect of the obligations of any Obligor or other Person the Grantor under this Agreement Agreement;
(I) the existence of, or any execution on or attachment of, or any failure by the Lender, (voluntarily or otherwise) to resort to, any other security or any other agreement, other than the defense of indefeasible payment in full in cash of the Notes; provided that the specific enumeration of the above-mentioned acts, failures rights held or omissions shall not hereafter held or to be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Agreement and the Notes and the parties hereto that the obligations of each Obligor shall be absolute and unconditional and shall not be discharged, impaired or varied except held by the indefeasible payment in full in cash of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and all other sums due and payable under this Agreement, at the place specified in and all in the manner and with the effect provided in the Notes and this Agreement, as each may be amended or modified from time Lender to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, an Obligor shall default under or in respect of the terms of the Notes or this Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by an Obligor under the Notes or this Agreement shall remain in full force and effect and shall apply to each and every subsequent default.
(d) To the extent of any payments made under this Agreement, each Obligor making such payment shall have a right of contribution from the other Obligors, but such Obligor covenants and agrees that such right of contribution shall be subordinate in right of payment to the rights of the holder of Notes for which full payment has not been made or provided for and, to that end, such Obligor agrees not to claim or enforce any such right of contribution unless and until all of the Notes and all other sums due and payable under this Agreement have been fully and irrevocably paid and discharged.
(e) Each Obligor agrees that to the extent an Obligor or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Obligors’ obligations hereunder, as if said payment had not been made. The liability of the Obligors hereunder shall not be reduced or discharged, in whole or in part, by any payment to any holder of a Note from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(f) No holder of a Note shall be under any obligation: (1) to marshal any assets in favor of the Obligors or in payment of secure any or all of the liabilities of any Obligor under Obligations or in respect of the Notes or the other obligations of the Obligors hereunder or (2) to pursue Borrower under the Note, the Purchase Agreement, any other remedy that Loan Document, or any other document, instrument or agreement evidencing or securing the Obligors may Obligations or may not be able any judgment obtained by the Lender;
(J) any demand for payment of any of the Obligations is rescinded by the Lender, and any of the Obligations continued;
(K) the refusal or failure (whether intentional, negligent or otherwise) of the Lender, or any agent of the Lender, to pursue themselves and that may lighten protect, secure, perfect, continue, maintain or insure any Lien at any time held by it as security for the Obligors’ burdenObligations or any other obligations of the Borrower under the Note, the Purchase Agreement, any right to which each Obligor hereby expressly waives.other Loan Document, or any other document, instrument or agreement evidencing or securing the Obligations or any property subject thereto; or
(gL) Notwithstanding anything the termination of the Commitments or the refusal of the Lender to provide further credit or other financial accommodations to the contrary in this Agreement, including this Section 22.9, all obligations and liabilities of an Obligor under this Agreement, the Notes and any Joinder Agreement shall automatically, without any action on the part of any party hereto, terminate and be void and of no further force and effect with respect to such Obligor (or any successor thereto or assign thereof) if and when such Obligor (or any successor thereto or assign thereof) is released from this Agreement, the Notes and any Joinder Agreement by reason of the express provisions of Section 2.2 of this Agreement or is otherwise released from this Agreement, the Notes and any Joinder Agreement in accordance with the terms of this AgreementBorrower.
Appears in 1 contract
Sources: Guarantor Security Agreement (Internet Pictures Corp)
Nature of Obligations. (a) The Borrowers shall be jointly and severally liable for the payment and performance of all obligations and covenants required by this Agreement to be performed by any of them, and each Borrower shall be bound by any notices (including, without limitation, notices of borrowings and notices of conversion or continuation), consents or other actions furnished or taken by any other Borrower hereunder. At the request of the Obligors under this Agreement and Administrative Agent or the Notes are joint and several primary obligations of Required Lenders, each Obligor regardless of which Obligor actually receives Borrower shall confirm in writing any action taken or proposed to be taken by such Borrower hereunder, provided that the proceeds failure of any Notes or Borrower to furnish such confirmation shall not affect such Borrower's obligations under the manner in which the Obligors, any Purchaser preceding sentence or any holder thereof accounts other provision of this Agreement. Each Borrower hereby agrees that it shall be jointly and severally liable for all Obligations and that such Notes on its books liability shall be absolute and records.
(b) Each Obligor hereby waives, to the fullest extent permitted by lawunconditional irrespective of:
(1i) notice any lack of the creation, renewal validity or accrual enforceability of any liability of an Obligor, present or future, or of the reliance of such holder of Notes upon this Agreement (it being understood that every Indebtedness, liability and obligation described in this Agreement or the Notes shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution provision of this Agreement and the Notes);
(2) demand of payment by Agreement, any holder of Notes from an Obligor other Loan Document or any other Person indebted in any manner on agreement or for any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any holder of Notes or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor instrument relating to any party thereto and to such Obligor. The obligations of each Obligor under this Agreement and the Notes and the rights of any holder of Notes to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by indefeasible payment in full in cash of the Notes and the obligations of the Obligors under this Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) Except as otherwise expressly provided in this Agreement, the obligations of the Obligors hereunder and under the Notes shall be binding upon the Obligors and their successors and assigns, and shall remain in full force and effect until the entire principal, interest and premium, if any, on the Notes and all other sums due under this Agreement shall have been paid and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including without limitation any of the following, whether or not with notice to or the consent of the Obligors:
(1) the genuineness, validity, regularity or enforceability of the Notes, this Agreement or any other agreement Loan Document, or avoidance or subordination of any of the Obligations;
(ii) any change in the time, manner or place of payment of, or in any other term of, or any increase in the amount of, all or any of the terms of any thereofObligations, the continuance of any obligation on the part of any Obligor or any other Person on amendment or in respect waiver of any term of, or any consent to departure from any requirement of, the Agreement or any of the Notes other Loan Documents;
(iii) any exchange, release or under non-perfection of any Lien on any collateral for, or any release or amendment or waiver of any term of any consent to departure from any requirement of any other guaranty of, all or any of the Obligations;
(iv) the absence of any attempt to collect any of the Obligations, from any Borrower or from any Loan Party or any other guarantor or any other action to enforce the same or the election of any remedy by the Lender;
(v) any waiver, consent, extensions, forbearance or granting of any indulgence by the Lenders with respect to any provision of this Agreement or any other agreement or the power or authority or the lack of power or authority of any Obligor to issue the Notes or any Obligor to execute and deliver this Agreement or any other agreement or to perform any of its obligations hereunder or the existence or continuance of any Obligor or any other Person as a legal entityLoan Document; or
(2) any default, failure or delay, willful or otherwise, in the performance by an Obligor or any other Person of any obligations of any kind or character whatsoever under the Notes, this Agreement or any other agreement; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of any Obligor or any other Person or in respect of the property of an Obligor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of an Obligor or any other Person; or
(4) impossibility or illegality of performance on the part of any Obligor or any other Person of its obligations under the Notes, this Agreement or any other agreements; or
(5) in respect of an Obligor or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to an Obligor or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of an Obligor or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against an Obligor or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by an Obligor or any other Person, or against any sums payable in respect of the Notes or under this Agreement, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by an Obligor or any other Person of its respective obligations under or in respect of the Notes, this Agreement or any other agreement; or
(8) the failure of any Obligor to receive any benefit from or as a result of its execution, delivery and performance of this Agreement; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Obligor of failure of an Obligor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, this Agreement or any other agreement or failure to resort for payment to an Obligor or to any other Person or to any other Agreement or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other agreement, the advance of additional money to an Obligor or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, this Agreement or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any merger or consolidation of an Obligor or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of an Obligor or any other Person to any other Person, or any change in the ownership of any shares of an Obligor or any other Person or any release of any Obligor; or
(12) any defense whatsoever that: (i) an Obligor or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than indefeasible payment thereof in Federal or other immediately available funds, or (ii) an Obligor or any other Person might have to the performance or observance of any of the provisions of the Notes, this Agreement or any other agreement, whether through the satisfaction or purported satisfaction by an Obligor or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise, other than the defense of indefeasible payment in full in cash of the Notes; or
(13) any act or failure to act with regard to the Notes, this Agreement or any other agreement or anything which might vary the risk of any Obligor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Obligor or any other Person in respect of the obligations of any Obligor or other Person under this Agreement or any other agreement, other than the defense of indefeasible payment in full in cash of the Notes; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Agreement and the Notes and the parties hereto that the obligations of each Obligor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the indefeasible payment in full in cash of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and all other sums due and payable under this Agreement, at the place specified in and all in the manner and with the effect provided in the Notes and this Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, an Obligor shall default under or in respect of the terms of the Notes or this Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by an Obligor under the Notes or this Agreement shall remain in full force and effect and shall apply to each and every subsequent default.
(d) To the extent of any payments made under this Agreement, each Obligor making such payment shall have a right of contribution from the other Obligors, but such Obligor covenants and agrees that such right of contribution shall be subordinate in right of payment to the rights of the holder of Notes for which full payment has not been made or provided for and, to that end, such Obligor agrees not to claim or enforce any such right of contribution unless and until all of the Notes and all other sums due and payable under this Agreement have been fully and irrevocably paid and discharged.
(e) Each Obligor agrees that to the extent an Obligor or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Obligors’ obligations hereunder, as if said payment had not been made. The liability of the Obligors hereunder shall not be reduced or discharged, in whole or in part, by any payment to any holder of a Note from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(f) No holder of a Note shall be under any obligation: (1) to marshal any assets in favor of the Obligors or in payment of any or all of the liabilities of any Obligor under or in respect of the Notes or the obligations of the Obligors hereunder or (2) to pursue any other remedy that the Obligors may or may not be able to pursue themselves and that may lighten the Obligors’ burden, any right to which each Obligor hereby expressly waives.
(g) Notwithstanding anything to the contrary in this Agreement, including this Section 22.9, all obligations and liabilities of an Obligor under this Agreement, the Notes and any Joinder Agreement shall automatically, without any action on the part of any party hereto, terminate and be void and of no further force and effect with respect to such Obligor (or any successor thereto or assign thereof) if and when such Obligor (or any successor thereto or assign thereof) is released from this Agreement, the Notes and any Joinder Agreement by reason of the express provisions of Section 2.2 of this Agreement or is otherwise released from this Agreement, the Notes and any Joinder Agreement in accordance with the terms of this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Hicks Thomas O)
Nature of Obligations. (a) The obligations Borrowers agree that all Obligations of the Obligors each Borrower (other than BWXT) under or in respect of this Agreement and the Notes are or any other Loan Document shall be joint and several primary obligations of each Obligor regardless of which Obligor actually receives all the proceeds Borrowers; it being understood that BWXT shall not be liable for any such Obligations of any Notes or the manner in which the Obligors, any Purchaser or any holder thereof accounts for such Notes on its books and recordsother Loan Party.
(b) Each Obligor hereby waivesBorrower (other than BWXT) waives presentment to, demand of payment from and protest to the fullest extent permitted by law:
(1) other Borrowers of any of the Obligations, and also waives notice of acceptance of its Obligations and notice of protest for nonpayment. The Obligations of a Borrower (other than BWXT) hereunder shall not be affected by (i) the creation, renewal or accrual failure of any liability Lender or the Administrative Agent to assert any claim or demand or to enforce any right or remedy against the other Borrowers under the provisions of an Obligor, present or future, or of the reliance of such holder of Notes upon this Agreement (it being understood that every Indebtedness, liability and obligation described in this Agreement or any of the Notes shall conclusively be presumed to have been createdother Loan Documents or otherwise; (ii) any rescission, contracted waiver, amendment or incurred in reliance upon modification of any of the execution terms or provisions of this Agreement and Agreement, any of the Notes);
(2) demand of payment by any holder of Notes from an Obligor other Loan Documents or any other Person indebted in agreement; or (iii) the failure of any manner on Lender to exercise any right or for remedy against any of the Indebtedness, liabilities or obligations hereby guaranteed; andother Borrower.
(3c) presentment for the Each Borrower (other than BWXT) further agrees that its agreement hereunder constitutes a promise of payment when due and not of collection, and waives any right to require that any resort be had by any holder Lender to any balance of Notes any deposit account or credit on the books of any Lender in favor of any other Borrower or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Obligor. Person.
(d) The obligations Obligations of each Obligor under this Agreement and the Notes and the rights of any holder of Notes to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, Borrower hereunder (other than BWXT) shall not be subject to any reduction, limitation, impairment or termination (other than by indefeasible payment in full in cash of the Notes and the obligations of the Obligors under this Agreement)for any reason, whether by reason of any claim of any character whatsoever or otherwise including, without limitation, compromise, and shall not be subject to any defensedefense or setoff, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) Except as otherwise expressly provided in this Agreementwhatsoever by reason of the invalidity, illegality or unenforceability of the Obligations of the other Borrowers or otherwise. Without limiting the generality of the foregoing, the obligations Obligations of each Borrower hereunder (other than BWXT) shall not be discharged or impaired or otherwise affected by the failure of the Obligors hereunder and under the Notes shall be binding upon the Obligors and their successors and assigns, and shall remain in full force and effect until the entire principal, interest and premium, if any, on the Notes and all other sums due Administrative Agent or any Lender to assert any claim or demand or to enforce any remedy under this Agreement shall have been paid and such obligations shall not be affected, modified or impaired upon the happening from time to time of under any event, including without limitation any of the following, whether or not with notice to or the consent of the Obligors:
(1) the genuineness, validity, regularity or enforceability of the Notes, this Agreement other Loan Document or any other agreement agreement, by any waiver or any of the terms modification in respect of any thereof, the continuance of any obligation on the part of any Obligor or any other Person on or in respect of the Notes or under this Agreement or any other agreement or the power or authority or the lack of power or authority of any Obligor to issue the Notes or any Obligor to execute and deliver this Agreement or any other agreement or to perform any of its obligations hereunder or the existence or continuance of any Obligor or any other Person as a legal entity; or
(2) by any default, failure or delay, willful or otherwise, in the performance of the Obligations of the other Borrowers, or by an Obligor or any other Person of any obligations of any kind act or character whatsoever under the Notes, this Agreement omission which may or any other agreement; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of any Obligor or any other Person or in respect of the property of an Obligor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of an Obligor or any other Person; or
(4) impossibility or illegality of performance on the part of any Obligor or any other Person of its obligations under the Notes, this Agreement or any other agreements; or
(5) in respect of an Obligor or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to an Obligor or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of an Obligor or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against an Obligor or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by an Obligor or any other Person, or against any sums payable in respect of the Notes or under this Agreement, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or might in any way adversely affect, the performance by an Obligor or any other Person of its respective obligations under or in respect of the Notes, this Agreement or any other agreement; or
(8) the failure of any Obligor to receive any benefit from or as a result of its execution, delivery and performance of this Agreement; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Obligor of failure of an Obligor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, this Agreement or any other agreement or failure to resort for payment to an Obligor manner or to any other Person or to any other Agreement or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other agreement, the advance of additional money to an Obligor or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, this Agreement or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any merger or consolidation of an Obligor or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of an Obligor or any other Person to any other Person, or any change in the ownership of any shares of an Obligor or any other Person or any release of any Obligor; or
(12) any defense whatsoever that: (i) an Obligor or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than indefeasible payment thereof in Federal or other immediately available funds, or (ii) an Obligor or any other Person might have to the performance or observance of any of the provisions of the Notes, this Agreement or any other agreement, whether through the satisfaction or purported satisfaction by an Obligor or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise, other than the defense of indefeasible payment in full in cash of the Notes; or
(13) any act or failure to act with regard to the Notes, this Agreement or any other agreement or anything which might extent vary the risk of such Borrower or otherwise operate as a discharge of such Borrower as a matter of law or equity.
(e) Each Borrower (other than BWXT) further agrees that its Obligations hereunder shall continue to be effective or be reinstated, as the case may be, if at any Obligor time payment, or any part thereof, of principal of or interest on any Obligation of the other Person; or
(14) any other circumstance which might Borrowers is rescinded or must otherwise constitute a defense available to, or a discharge of, any Obligor be restored by the Administrative Agent or any other Person Lender upon the occurrence of a Bankruptcy Event in respect of such Borrower, any of the obligations other Borrowers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any Obligor or other Person under this Agreement right which the Administrative Agent or any other agreementLender may have at law or in equity against any Borrower by virtue hereof, other than upon the defense failure of indefeasible payment in full in cash of the Notes; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed a Borrower to exclude pay any other acts, failures or omissions, though not specifically mentioned above, it being the purpose Obligation when and intent of this Agreement and the Notes and the parties hereto that the obligations of each Obligor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the indefeasible payment in full in cash of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever as the same shall become due due, whether at maturity, by acceleration, after notice of prepayment or otherwise, each other Borrower (other than BWXT) hereby promises to and payable as will, upon receipt of written demand by the Administrative Agent, forthwith pay, or cause to be paid, in cash the Notes provided amount of such unpaid Obligations, and all other sums due and payable under this Agreementthereupon each Lender shall, at in a reasonable manner, assign the place specified in and all in the manner and with the effect provided in the Notes and this Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, an Obligor shall default under or in respect amount of the terms Obligations of the Notes other Borrowers owed to it and paid by such Borrower pursuant to this guarantee to such Borrower, such assignment to be pro tanto to the extent to which the Obligations in question were discharged by such Borrower, or this Agreement make such disposition thereof as such Borrower shall direct (all without recourse to any Lender and that notwithstanding recovery hereunder for without any representation or in respect of warranty by any given default or defaults by an Obligor under the Notes or this Agreement shall remain in full force and effect and shall apply to each and every subsequent defaultLender).
(dg) To the extent Upon payment by a Borrower of any payments made under this Agreementamount as provided above, each Obligor making all rights of such payment shall have Borrower against another Borrower, as the case may be, arising as a result thereof by way of right of contribution from the other Obligors, but such Obligor covenants subrogation or otherwise shall in all respects be subordinated and agrees that such right of contribution shall be subordinate junior in right of payment to the rights prior indefeasible payment in full of all the holder of Notes for which full payment has not been made or provided for and, to that end, such Obligor agrees not to claim or enforce any such right of contribution unless and until all of the Notes and all other sums due and payable under this Agreement have been fully and irrevocably paid and discharged.
(e) Each Obligor agrees that Obligations to the extent an Obligor or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Obligors’ obligations hereunder, as if said payment had not been made. The liability of the Obligors hereunder shall not be reduced or discharged, in whole or in part, by any payment to any holder of a Note from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(f) No holder of a Note shall be under any obligation: (1) to marshal any assets in favor of the Obligors or in payment of any or all of the liabilities of any Obligor under or in respect of the Notes or the obligations of the Obligors hereunder or (2) to pursue any other remedy that the Obligors may or may not be able to pursue themselves and that may lighten the Obligors’ burden, any right to which each Obligor hereby expressly waives.
(g) Notwithstanding anything to the contrary in this Agreement, including this Section 22.9, all obligations and liabilities of an Obligor under this Agreement, the Notes and any Joinder Agreement shall automatically, without any action on the part of any party hereto, terminate and be void and of no further force and effect with respect to such Obligor (or any successor thereto or assign thereof) if and when such Obligor (or any successor thereto or assign thereof) is released from this Agreement, the Notes and any Joinder Agreement by reason of the express provisions of Section 2.2 of this Agreement or is otherwise released from this Agreement, the Notes and any Joinder Agreement in accordance with the terms of this Agreement.Lenders
Appears in 1 contract
Sources: Omnibus Credit Agreement (McDermott International Inc)
Nature of Obligations. (a) Notwithstanding anything to the contrary contained elsewhere in this Agreement or any other Loan Document, it is understood and agreed by the various parties to this Agreement that all Obligations to repay principal of, interest on, and all other amounts with respect to, all Loans and all other Obligations pursuant to this Agreement and each other Loan Document (including all fees, indemnities, taxes and other Obligations in connection therewith or in connection with the related Revolving Commitments) shall constitute the obligations of the Borrower. In addition to the direct obligations of the Borrower with respect to Obligations as described above, all such Obligations shall be guaranteed pursuant to, and in accordance with the terms of, the Guarantees.
(b) The obligations of the Obligors under this Agreement and Borrower with respect to the Notes Obligations are joint and several primary independent of the obligations of the Guarantors under the Guarantees of such Obligations, and a separate action or actions may be brought and prosecuted against the Borrower and each Obligor regardless of which Obligor actually receives the proceeds of Guarantor (in its capacity as a Guarantor), whether or not any Notes Guarantor is joined in any such action or the manner in which the Obligors, any Purchaser or any holder thereof accounts for such Notes on its books and records.
(b) Each Obligor hereby actions. The Borrower waives, to the fullest extent permitted by law, the benefit of any statute of limitations affecting its liability hereunder or the enforcement thereof.
(c) The Borrower authorizes the Administrative Agent, the Collateral Agent and the Lenders without notice or demand (except as shall be required by applicable statute and cannot be waived), and without affecting or impairing its liability hereunder, from time to time to, to the maximum extent permitted by applicable law and the Loan Documents:
(1i) notice exercise or refrain from exercising rights against any Guarantor or others or otherwise act or refrain from acting;
(ii) release or substitute endorsers, Guarantors or other obligors;
(iii) settle or compromise any of the creationObligations of any other Loan Party, renewal any security therefor or accrual any liability (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any liability (whether due or not) of an Obligorthe Borrower to its creditors other than the Lenders;
(iv) apply any sums paid by any other person, present howsoever realized to any liability or futureliabilities of the Borrower or other person regardless of what liability or liabilities of such other Borrower or other person remain unpaid; and/or
(v) consent to or waive any breach of, or of the reliance of such holder of Notes upon this Agreement (it being understood that every Indebtednessact, liability and obligation described in omission or default under, this Agreement or any of the Notes shall conclusively be presumed instruments or agreements referred to have been createdherein, contracted or incurred otherwise, by any person.
(d) It is not necessary for the Administrative Agent, the Collateral Agent or any Lender to inquire into the capacity or powers of the Borrower or any of its Subsidiaries or the officers, directors, members, partners or agents acting or purporting to act on its behalf, and any Obligations made or created in reliance upon the execution professed exercise of this Agreement and such powers shall constitute the Notes);obligations of the Borrower.
(2e) demand of payment by The Borrower waives any holder of Notes from an Obligor right to require the Administrative Agent, the Collateral Agent or the Lenders to (a) proceed against any Guarantor or any other Person indebted in party, (b) proceed against or exhaust any manner on or for security held from the Borrower, any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any holder of Notes Guarantor or any other Person party or (c) pursue any other remedy in the Administrative Agent’s, the Collateral Agent’s or the Lenders’ power whatsoever. The Borrower waives any defense based on or arising out of suretyship or any impairment of security held from the Notes Borrower, any Guarantor or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Obligor. The obligations of each Obligor under this Agreement and the Notes and the rights or on or arising out of any holder defense of Notes to enforce such obligations by any proceedings, whether by action at law, suit in equity Guarantor or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other party other than by indefeasible payment in full in cash of the Notes and the obligations Obligations, including any defense based on or arising out of the Obligors under this Agreement), whether by reason disability of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) Except as otherwise expressly provided in this Agreement, the obligations of the Obligors hereunder and under the Notes shall be binding upon the Obligors and their successors and assigns, and shall remain in full force and effect until the entire principal, interest and premium, if any, on the Notes and all other sums due under this Agreement shall have been paid and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including without limitation any of the following, whether or not with notice to or the consent of the Obligors:
(1) the genuineness, validity, regularity or enforceability of the Notes, this Agreement Guarantor or any other agreement party, or the unenforceability of the Obligations or any of the terms of part thereof from any thereof, the continuance of any obligation on the part of any Obligor or any other Person on or in respect of the Notes or under this Agreement or any other agreement or the power or authority or the lack of power or authority of any Obligor to issue the Notes or any Obligor to execute and deliver this Agreement or any other agreement or to perform any of its obligations hereunder or the existence or continuance of any Obligor or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwisecause, in the performance by an Obligor or any each case other Person of any obligations of any kind or character whatsoever under the Notes, this Agreement or any other agreement; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of any Obligor or any other Person or in respect of the property of an Obligor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of an Obligor or any other Person; or
(4) impossibility or illegality of performance on the part of any Obligor or any other Person of its obligations under the Notes, this Agreement or any other agreements; or
(5) in respect of an Obligor or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to an Obligor or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of an Obligor or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against an Obligor or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by an Obligor or any other Person, or against any sums payable in respect of the Notes or under this Agreement, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by an Obligor or any other Person of its respective obligations under or in respect of the Notes, this Agreement or any other agreement; or
(8) the failure of any Obligor to receive any benefit from or than as a result of its execution, delivery and performance of this Agreement; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Obligor of failure of an Obligor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, this Agreement or any other agreement or failure to resort for payment to an Obligor or to any other Person or to any other Agreement or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other agreement, the advance of additional money to an Obligor or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, this Agreement or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any merger or consolidation of an Obligor or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of an Obligor or any other Person to any other Person, or any change in the ownership of any shares of an Obligor or any other Person or any release of any Obligor; or
(12) any defense whatsoever that: (i) an Obligor or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than indefeasible payment thereof in Federal or other immediately available funds, or (ii) an Obligor or any other Person might have to the performance or observance of any of the provisions of the Notes, this Agreement or any other agreement, whether through the satisfaction or purported satisfaction by an Obligor or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise, other than the defense of indefeasible payment in full in cash of the Notes; or
(13) any act or failure to act with regard to the Notes, this Agreement or any other agreement or anything which might vary the risk of any Obligor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Obligor or any other Person in respect of the obligations of any Obligor or other Person under this Agreement or any other agreement, other than the defense of indefeasible payment in full in cash of the Notes; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Agreement and the Notes and the parties hereto that the obligations of each Obligor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the indefeasible payment in full in cash of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and all other sums due and payable under this Agreement, at the place specified in and all in the manner and with the effect provided in the Notes and this Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, an Obligor shall default under or in respect of the terms of the Notes or this Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by an Obligor under the Notes or this Agreement shall remain in full force and effect and shall apply to each and every subsequent defaultObligations.
(d) To the extent of any payments made under this Agreement, each Obligor making such payment shall have a right of contribution from the other Obligors, but such Obligor covenants and agrees that such right of contribution shall be subordinate in right of payment to the rights of the holder of Notes for which full payment has not been made or provided for and, to that end, such Obligor agrees not to claim or enforce any such right of contribution unless and until all of the Notes and all other sums due and payable under this Agreement have been fully and irrevocably paid and discharged.
(e) Each Obligor agrees that to the extent an Obligor or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Obligors’ obligations hereunder, as if said payment had not been made. The liability of the Obligors hereunder shall not be reduced or discharged, in whole or in part, by any payment to any holder of a Note from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(f) No holder of a Note shall be under any obligation: (1) to marshal any assets in favor of the Obligors or in payment of any or all of the liabilities of any Obligor under or in respect of the Notes or the obligations of the Obligors hereunder or (2) to pursue any other remedy that the Obligors may or may not be able to pursue themselves and that may lighten the Obligors’ burden, any right to which each Obligor hereby expressly waives.
(g) Notwithstanding anything to the contrary in this Agreement, including this Section 22.9, all obligations and liabilities of an Obligor under this Agreement, the Notes and any Joinder Agreement shall automatically, without any action on the part of any party hereto, terminate and be void and of no further force and effect with respect to such Obligor (or any successor thereto or assign thereof) if and when such Obligor (or any successor thereto or assign thereof) is released from this Agreement, the Notes and any Joinder Agreement by reason of the express provisions of Section 2.2 of this Agreement or is otherwise released from this Agreement, the Notes and any Joinder Agreement in accordance with the terms of this Agreement.
Appears in 1 contract
Nature of Obligations. (a) The obligations liability of each Holdco Party hereunder is independent of and not in consideration of the liability of the Obligors under this Agreement or any other Holdco Party and a separate action or actions may be brought and prosecuted by the Notes are joint TW Parties and several primary obligations their respective permitted successors and assigns, as the case may be, against any Holdco Party and its permitted successors and assigns, whether or not any action is brought or prosecuted against any Obligor or any other Holdco Party or whether or not any Obligor or any other Holdco Party is joined in any such action or actions. The guarantee of each Obligor regardless of which Obligor actually receives the proceeds Holdco Parties under Sections 2.1 through 2.3 hereof shall be construed as a continuing, absolute, unconditional and irrevocable guarantee of payment and performance (and not merely of collection) without regard to:
(i) the legality, validity or enforceability of any of the Texas Agreements, the Georgia Agreements, the Zero Coupon Notes Indenture, the Zero Coupon Notes, the Merger Agreement or the manner in which the Obligorsany agreement related thereto (other than this Agreement), any Purchaser of the Required Obligations, any collateral or any holder thereof accounts for such Notes on its books Other Guarantee;
(ii) any defense (other than indefeasible payment or an applicable statute of limitations), set-off or counterclaim (other than a set-off or counterclaim arising from the failure of the TW Parties to perform their obligations hereunder) that may at any time be available to any Obligor or any Holdco Party against, and recordsany right of set-off at any time held by, the Beneficiaries (or any one of them), the TW Parties or any other Holdco Party; or
(iii) any other circumstance whatsoever (with or without notice to or knowledge of any Holdco Party or any Obligor, but excluding circumstances resulting from the failure of the TW Parties to perform the Excluded Obligations), whether or not similar to any of the foregoing, that constitutes, or might be construed to constitute, an equitable or legal discharge of any Obligor or any Holdco Party, in bankruptcy or in any other instance.
(b) Each In the event of default by any Obligor hereby waivesin payment or performance of the Required Obligations, or any part thereof, when such payment or performance becomes due, either by its terms or as the result of the exercise of any power to accelerate, the Holdco Parties, as applicable, shall, pay the amount due thereon to the fullest extent permitted by law:
(1) notice of applicable Beneficiaries or perform or observe the creationRequired Obligations, renewal or accrual of any liability of an Obligor, present or future, or of the reliance of such holder of Notes upon this Agreement (and it being understood that every Indebtedness, liability and obligation described in this Agreement or the Notes shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Agreement and the Notes);
(2) demand of payment by any holder of Notes from an Obligor or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any holder of Notes or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Obligor. The obligations of each Obligor under this Agreement and the Notes and the rights of any holder of Notes to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject necessary for the Beneficiaries (and each Holdco Party expressly waives any rights it might otherwise have to any reduction, limitation, impairment or termination (other than by indefeasible payment in full in cash of require the Notes and the obligations of the Obligors under this Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) Except as otherwise expressly provided in this Agreement, the obligations of the Obligors hereunder and under the Notes shall be binding upon the Obligors and their successors and assigns, and shall remain in full force and effect until the entire principal, interest and premium, if any, on the Notes and all other sums due under this Agreement shall have been paid and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including without limitation any of the following, whether or not with notice to Beneficiaries or the consent of the Obligors:
(1TW Parties) the genuineness, validity, regularity or enforceability of the Notes, this Agreement or to proceed against any other agreement or any of the terms of any thereof, the continuance of any obligation on the part of any Obligor or any other Person on or in respect of the Notes or under this Agreement or any other agreement or the power or authority or the lack of power or authority of any Obligor to issue the Notes or any Obligor to execute and deliver this Agreement or any other agreement or to perform any of its obligations hereunder or the existence or continuance of any Obligor or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by an Obligor or any other Person of any obligations of any kind or character whatsoever under the Notes, this Agreement or any other agreement; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of any Obligor or any other Person or in respect of the property of an Obligor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of an Obligor or any other Person; or
(4) impossibility or illegality of performance on the part of any Obligor or any other Person of its obligations under the Notes, this Agreement or any other agreements; or
(5) in respect of an Obligor or any other PersonObligor, any change of circumstances, whether collateral or not foreseen or foreseeable, whether or not imputable to an Obligor or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of an Obligor or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against an Obligor or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by an Obligor or any other Person, or against any sums payable in respect of the Notes or under this Agreement, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by an Obligor or any other Person of its respective obligations under or in respect of the Notes, this Agreement or any other agreement; or
(8) the failure of any Obligor to receive any benefit from or as a result of its execution, delivery and performance of this Agreement; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Obligor of failure of an Obligor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, this Agreement or any other agreement or failure to resort for payment to an Obligor or to any other Person or to any other Agreement or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other agreement, the advance of additional money to an Obligor or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, this Agreement or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any merger or consolidation of an Obligor or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of an Obligor or any other Person to any other Person, or any change in the ownership of any shares of an Obligor or any other Person or any release of any Obligor; or
(12) any defense whatsoever that: (i) an Obligor or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than indefeasible payment thereof in Federal or other immediately available funds, or (ii) an Obligor or any other Person might have to the performance or observance of any of the provisions of the Notes, this Agreement or any other agreement, whether through the satisfaction or purported satisfaction by an Obligor or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise, other than the defense of indefeasible payment in full in cash of the Notes; or
(13) any act or failure to act with regard to the Notes, this Agreement or any other agreement or anything which might vary the risk of any Obligor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Obligor or any other Person in respect of the obligations of any Obligor or other Person under this Agreement or any other agreement, other than the defense of indefeasible payment in full in cash of the Notes; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Agreement and the Notes and the parties hereto that the obligations of each Obligor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the indefeasible payment in full in cash of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and all other sums due and payable under this Agreement, at the place specified in and all in the manner and with the effect provided in the Notes and this Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, an Obligor shall default under or in respect of the terms of the Notes or this Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by an Obligor under the Notes or this Agreement shall remain in full force and effect and shall apply to each and every subsequent default.
(d) To the extent of any payments made under this Agreement, each Obligor making such payment shall have a right of contribution from the other Obligors, but such Obligor covenants and agrees that such right of contribution shall be subordinate in right of payment to the rights of the holder of Notes for which full payment has not been made or provided for and, to that end, such Obligor agrees not to claim or enforce any such right of contribution unless and until all of the Notes and all other sums due and payable under this Agreement have been fully and irrevocably paid and discharged.
(e) Each Obligor agrees that to the extent an Obligor or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Obligors’ obligations hereunder, as if said payment had not been made. The liability of the Obligors hereunder shall not be reduced or discharged, in whole or in part, by any payment to any holder of a Note from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(fc) No holder of a Note shall Suit may be under brought or demand may be made against any obligation: (1) to marshal Obligor or any assets in favor other Holdco Party, as applicable, separately or together, without impairing the rights of the Obligors TW Parties against any Holdco Party or in payment of any or all of the liabilities of any Obligor under or in respect of the Notes or the obligations of the Obligors hereunder or (2) to pursue any other remedy that the Obligors may or may not be able to pursue themselves and that may lighten the Obligors’ burden, any right to which each Obligor hereby expressly waivesPerson.
(g) Notwithstanding anything to the contrary in this Agreement, including this Section 22.9, all obligations and liabilities of an Obligor under this Agreement, the Notes and any Joinder Agreement shall automatically, without any action on the part of any party hereto, terminate and be void and of no further force and effect with respect to such Obligor (or any successor thereto or assign thereof) if and when such Obligor (or any successor thereto or assign thereof) is released from this Agreement, the Notes and any Joinder Agreement by reason of the express provisions of Section 2.2 of this Agreement or is otherwise released from this Agreement, the Notes and any Joinder Agreement in accordance with the terms of this Agreement.
Appears in 1 contract
Sources: Subordinated Indemnity Agreement (Premier Parks Inc)
Nature of Obligations. (a) The obligations of the Obligors under this Agreement each Indemnitor hereunder are direct, immediate and the Notes are joint and several primary obligations and liabilities (and not secondary obligations and liabilities) and these obligations shall be absolute and unconditional, irrespective of each Obligor regardless (i) any illegality, invalidity or unenforceability of which Obligor actually receives the proceeds of or defect in any Notes or the manner in which the Obligors, any Purchaser or any holder thereof accounts for such Notes on its books and records.
(b) Each Obligor hereby waives, to the fullest extent permitted by law:
(1) notice provision of the creation, renewal or accrual of any liability of an Obligor, present or futureLoan Documents, or of the reliance any obligation of such holder of Notes upon this Agreement (it being understood that every Indebtedness, liability and obligation described in this Agreement or the Notes shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Agreement and the Notes);
(2) demand of payment by any holder of Notes from an Obligor Borrower or any other Person indebted in Obligated Party thereunder, (ii) the absence of any manner on action to enforce the same, any inaccuracy of any representation or for warranty made by Borrower under any of the Indebtedness, liabilities Loan Document or obligations hereby guaranteed; and
(3) presentment for the payment by any holder of Notes other Indemnitor hereunder or any other Person of the Notes or under any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Obligor. The obligations of each Obligor under this Agreement and (iv) the Notes and the rights recovery of any holder of Notes to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by indefeasible payment in full in cash of the Notes and the obligations of the Obligors under this Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) Except as otherwise expressly provided in this Agreement, the obligations of the Obligors hereunder and under the Notes shall be binding upon the Obligors and their successors and assigns, and shall remain in full force and effect until the entire principal, interest and premium, if any, on the Notes and all other sums due under this Agreement shall have been paid and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including without limitation any of the following, whether or not with notice to or the consent of the Obligors:
(1) the genuineness, validity, regularity or enforceability of the Notes, this Agreement judgment against Borrower or any other agreement Indemnitor or any of the terms of any thereof, the continuance of any obligation on the part of any Obligor or any other Person on or in respect of the Notes or under this Agreement or any other agreement or the power or authority action to seek execution thereof (or the lack of power thereof), or authority of any Obligor to issue the Notes or any Obligor to execute and deliver this Agreement or (v) any other agreement or to perform circumstance affecting any of its obligations hereunder or the existence or continuance of any Obligor or any other Person as a legal entity; or
Indemnitor (2including Borrower) any default, failure or delay, willful or otherwise, in the performance by an Obligor or any other Person of any obligations of any kind or character whatsoever under the Notes, this Agreement or any other agreement; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of any Obligor or any other Person or in respect of the property of an Obligor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of an Obligor or any other Person; or
(4) impossibility or illegality of performance on the part of any Obligor or any other Person of its obligations under the Notes, this Agreement or any other agreements; or
(5) in respect of an Obligor or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to an Obligor or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond within the control of an Obligor or any other Person and whether or not of the kind hereinbefore specified; or
(6Indemnitor) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against an Obligor or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by an Obligor or any other Person, or against any sums payable in respect of the Notes or under this Agreement, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by an Obligor or any other Person of its respective obligations under or in respect of the Notes, this Agreement or any other agreement; or
(8) the failure of any Obligor to receive any benefit from or as a result of its execution, delivery and performance of this Agreement; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Obligor of failure of an Obligor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, this Agreement or any other agreement or failure to resort for payment to an Obligor or to any other Person or to any other Agreement or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other agreement, the advance of additional money to an Obligor or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, this Agreement or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any merger or consolidation of an Obligor or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of an Obligor or any other Person to any other Person, or any change in the ownership of any shares of an Obligor or any other Person or any release of any Obligor; or
(12) any defense whatsoever that: (i) an Obligor or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than indefeasible payment thereof in Federal or other immediately available funds, or (ii) an Obligor or any other Person might have to the performance or observance of any of the provisions of the Notes, this Agreement or any other agreement, whether through the satisfaction or purported satisfaction by an Obligor or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise, other than the defense of indefeasible payment in full in cash of the Notes; or
(13) any act or failure to act with regard to the Notes, this Agreement or any other agreement or anything which might vary the risk of any Obligor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Obligor a guarantor or any other Person in respect of the obligations surety of any Obligor type. This Agreement is a continuing one and all liabilities that apply or other Person may apply under this Agreement or any other agreement, other than the defense of indefeasible payment in full in cash of the Notes; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Agreement and the Notes and the parties hereto that the obligations of each Obligor terms hereof shall be absolute and unconditional and shall not be discharged, impaired or varied except by the indefeasible payment conclusively presumed to have been created in full in cash of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and all other sums due and payable under this Agreement, at the place specified in and all in the manner and with the effect provided in the Notes and this Agreement, as each may be amended or modified from time to timereliance hereon. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had no discharge, modification, impairment or limitation of the Loan Documents or Borrower's or any Indemnitor's obligations thereunder or hereunder as and when, from time or to time, an Obligor shall default its creditors generally under or in respect of the terms of the Notes connection with any bankruptcy, insolvency or this Agreement and that notwithstanding recovery hereunder for similar proceeding or arrangements with creditors or corporate reorganizations shall in respect of anywayaffect or discharge any given default or defaults by an Obligor under the Notes or this Agreement shall remain in full force and effect and shall apply to each and every subsequent default.
(d) To the extent of any payments made Indemnitor's obligations under this Agreement, each Obligor making such payment shall have a right . Notwithstanding any provision of contribution from the other Obligors, but such Obligor covenants and agrees that such right of contribution shall be subordinate in right of payment Loan Agreement to the rights contrary, the obligations of each Indemnitor pursuant to this Agreement are exceptions to any non-recourse or exculpation provisions of the holder of Notes Loan Documents; each Indemnitor is fully and personally liable for which full payment has its obligations hereunder, and its liability is not been made limited to the original or provided for and, to that end, such Obligor agrees not to claim or enforce any such right of contribution unless and until all amortized principal balance of the Notes and all Loan or the value of the Property. The liability of each of the Indemnitors is not conditional or contingent upon the pursuit of any remedies against ▇▇▇▇▇▇▇▇, any other sums due and payable under this Agreement Indemnitor or any other Person, or against anycollateralor liens held by ▇▇▇▇▇▇. Each Indemnitor waives any rights which it may have been fully and irrevocably paid and discharged.
to require that (eA) Each Obligor agrees that to the extent an Obligor Lender first proceed against Borrower, either Indemnitor or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Obligors’ obligations hereunder, as if said payment had not been made. The liability of the Obligors hereunder shall not be reduced or discharged, in whole or in part, by any payment to any holder of a Note from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidityIndemnified Losses, or fraud asserted (B) Lender first proceed against any Collateral held by any account debtor or by any other PersonLender.
(f) No holder of a Note shall be under any obligation: (1) to marshal any assets in favor of the Obligors or in payment of any or all of the liabilities of any Obligor under or in respect of the Notes or the obligations of the Obligors hereunder or (2) to pursue any other remedy that the Obligors may or may not be able to pursue themselves and that may lighten the Obligors’ burden, any right to which each Obligor hereby expressly waives.
(g) Notwithstanding anything to the contrary in this Agreement, including this Section 22.9, all obligations and liabilities of an Obligor under this Agreement, the Notes and any Joinder Agreement shall automatically, without any action on the part of any party hereto, terminate and be void and of no further force and effect with respect to such Obligor (or any successor thereto or assign thereof) if and when such Obligor (or any successor thereto or assign thereof) is released from this Agreement, the Notes and any Joinder Agreement by reason of the express provisions of Section 2.2 of this Agreement or is otherwise released from this Agreement, the Notes and any Joinder Agreement in accordance with the terms of this Agreement.
Appears in 1 contract
Nature of Obligations. (a) The obligations of the Obligors parties under this Agreement and the Notes are joint and several primary obligations of each Obligor regardless of which Obligor actually receives the proceeds of any Notes or the manner in which the Obligors, any Purchaser or any holder thereof accounts for such Notes on its books and records.
(b) Each Obligor hereby waives, to the fullest extent permitted by law:
(1) notice of the creation, renewal or accrual of any liability of an Obligor, present or future, or of the reliance of such holder of Notes upon this Agreement (it being understood that every Indebtedness, liability and obligation described in this Agreement or the Notes shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Agreement and the Notes);
(2) demand of payment by any holder of Notes from an Obligor or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any holder of Notes or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Obligor. The obligations of each Obligor under this Agreement and the Notes and the rights of any holder of Notes to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by indefeasible payment in full in cash of the Notes and the obligations of the Obligors under this Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) Except as otherwise expressly provided in this Agreement, the obligations of the Obligors hereunder and under the Notes shall be binding upon the Obligors and their successors and assigns, and shall remain in full force and effect until the entire principal, interest and premium, if any, on the Notes and all other sums due under this Agreement shall have been paid and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including without limitation any of the following, whether or not with notice to or the consent of the Obligors:
(1) the genuineness, validity, regularity or enforceability of the Notes, this Agreement or any other agreement or any of the terms of any thereof, the continuance of any obligation on the part of any Obligor or any other Person on or in respect of the Notes or under this Agreement or any other agreement or the power or authority or the lack of power or authority of any Obligor to issue the Notes or any Obligor to execute and deliver this Agreement or any other agreement or to perform any of its obligations hereunder or the existence or continuance of any Obligor or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by an Obligor or any other Person of any obligations of any kind or character whatsoever under the Notes, this Agreement or any other agreement; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of any Obligor or any other Person or in respect of the property of an Obligor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of an Obligor or any other Person; or
(4) impossibility or illegality of performance on the part of any Obligor or any other Person of its obligations under the Notes, this Agreement or any other agreements; or
(5) in respect of an Obligor or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to an Obligor or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of an Obligor or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against an Obligor or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by an Obligor or any other Person, or against any sums payable in respect of the Notes or under this Agreement, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by an Obligor or any other Person of its respective obligations under or in respect of the Notes, this Agreement or any other agreement; or
(8) the failure of any Obligor to receive any benefit from or as a result of its execution, delivery and performance of this Agreement; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Obligor of failure of an Obligor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, this Agreement or any other agreement or failure to resort for payment to an Obligor or to any other Person or to any other Agreement or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other agreement, the advance of additional money to an Obligor or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, this Agreement or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any merger or consolidation of an Obligor or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of an Obligor or any other Person to any other Person, or any change in the ownership of any shares of an Obligor or any other Person or any release of any Obligor; or
(12) any defense whatsoever that: (i) an Obligor or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than indefeasible payment thereof in Federal or other immediately available funds, or (ii) an Obligor or any other Person might have to the performance or observance of any of the provisions of the Notes, this Agreement or any other agreement, whether through the satisfaction or purported satisfaction by an Obligor or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise, other than the defense of indefeasible payment in full in cash of the Notes; or
(13) any act or failure to act with regard to the Notes, this Agreement or any other agreement or anything which might vary the risk of any Obligor or any other Person; or
(14) any other circumstance which might otherwise constitute a legal or equitable discharge or defense available toof the parties, as surety, or otherwise. No act of commission or omission of any kind or at any time on the part of a discharge ofparty (in its capacity as an Indemnitee hereunder), or his or its successors, shall in any Obligor way impair his or its rights to enforce this Agreement, and no set-off, counterclaim, reduction or diminution of any obligation, or any other Person in respect defense of any kind or nature which the Indemnitors have or may have against the Company or any of the obligations Covered Directors shall be available hereunder. The Indemnitors expressly waive notice from the Indemnitees of their acceptance and reliance on this Agreement. The Indemnitors agree to pay all costs, expenses and fees, including all reasonable attorney’s fees, which may be incurred by any Indemnitee in enforcing or attempting to enforce this Agreement following any default on the part of the Indemnitors hereunder, whether the same shall be enforced by suit or otherwise. The Indemnitors hereby waive and agree not to assert or take advantage of any Obligor defense arising by virtue of: (i) the lack of authority, death or disability of any other Person party, or revocation hereof by any other party, or (ii) the failure of any Indemnitee to file or enforce a claim of any kind. The Indemnitors do hereby acknowledge that their obligations under this Agreement or any are joint and several, that an Indemnitee may elect to proceed against one and not the other agreement, other than the defense of indefeasible payment in full in cash of the Notes; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Agreement and the Notes and the parties hereto that the obligations of each Obligor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the indefeasible payment in full in cash of the principal of, premium, if anyIndemnitor, and interest on the Notes that in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and all other sums due and payable any action brought against any Indemnitee under this Agreement, at the place specified in and all in the manner and with the effect provided in the Notes and this Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood such Indemnitor will not require that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, an Obligor shall default under or in respect of the terms of the Notes or this Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by an Obligor under the Notes or this Agreement shall remain in full force and effect and shall apply to each and every subsequent default.
(d) To the extent of any payments made under this Agreement, each Obligor making such payment shall have a right of contribution from the other Obligors, but such Obligor covenants and agrees that such right of contribution shall Indemnitor be subordinate in right of payment to the rights of the holder of Notes for which full payment has not been made joined as a necessary party or provided for and, to that end, such Obligor agrees not to claim or enforce any such right of contribution unless and until all of the Notes and all other sums due and payable under this Agreement have been fully and irrevocably paid and discharged.
(e) Each Obligor agrees that to the extent an Obligor or on any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Obligors’ obligations hereunder, as if said payment had not been made. The liability of the Obligors hereunder shall not be reduced or discharged, in whole or in part, by any payment to any holder of a Note from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Personbasis.
(f) No holder of a Note shall be under any obligation: (1) to marshal any assets in favor of the Obligors or in payment of any or all of the liabilities of any Obligor under or in respect of the Notes or the obligations of the Obligors hereunder or (2) to pursue any other remedy that the Obligors may or may not be able to pursue themselves and that may lighten the Obligors’ burden, any right to which each Obligor hereby expressly waives.
(g) Notwithstanding anything to the contrary in this Agreement, including this Section 22.9, all obligations and liabilities of an Obligor under this Agreement, the Notes and any Joinder Agreement shall automatically, without any action on the part of any party hereto, terminate and be void and of no further force and effect with respect to such Obligor (or any successor thereto or assign thereof) if and when such Obligor (or any successor thereto or assign thereof) is released from this Agreement, the Notes and any Joinder Agreement by reason of the express provisions of Section 2.2 of this Agreement or is otherwise released from this Agreement, the Notes and any Joinder Agreement in accordance with the terms of this Agreement.
Appears in 1 contract
Sources: Assumption and Indemnity Agreement (G&l Realty Corp)
Nature of Obligations. (a) The obligations For the purposes of this letter, DLJ unconditionally and irrevocably:
(i) authorises and directs the Bank to pay any demand under and in accordance with the Pool LC without requiring proof of the Obligors under this Agreement Borrower's or DLJ's agreement that the amounts so demanded or paid are or were due and notwithstanding that the Borrower and/or DLJ may dispute the validity of any such request, demand or payment;
(ii) confirms that the Bank deals in documents only and shall not be concerned with the legality of the claim or any other underlying transaction or any set-off, counterclaim or defence as between the Borrower and the Notes are joint and several primary obligations beneficiary of each Obligor regardless of which Obligor actually receives the proceeds Pool LC; and
(iii) agrees that the Bank need not have any regard to the sufficiency, accuracy or genuineness of any Notes or the manner in which the Obligors, any Purchaser such demand or any holder thereof accounts for certificate or statement in connection with any such Notes demand or any incapacity of or limitation upon the powers of any person signing or issuing any such demand, certificate or statement which appears on its books face to be in order and recordsthe Bank may assume that any such demand, certificate or statement which appears on its face to be in order is correct and properly made.
(b) Each Obligor hereby waivesDLJ waives any right it may have of first requiring the Bank to proceed or enforce any rights or security against, to the fullest extent permitted by law:
(1) notice of the creation, renewal or accrual of any liability of an Obligor, present or futureclaim payment from, or of the reliance of such holder of Notes upon this Agreement (it being understood that every Indebtedness, liability and obligation described in this Agreement file any proof or the Notes shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Agreement and the Notes);
(2) demand of payment by any holder of Notes from an Obligor or any other Person indebted claim in any manner on or for insolvency proceedings of, any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any holder of Notes or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Obligor. The obligations of each Obligor person before claiming from DLJ under this Agreement and the Notes and the rights of any holder of Notes to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by indefeasible payment in full in cash of the Notes and the obligations of the Obligors under this Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoeverletter.
(c) Except as otherwise expressly provided in this AgreementWithout limiting paragraph l(b) above, the DLJ's obligations of the Obligors hereunder and under the Notes shall be binding upon the Obligors and their successors and assigns, and shall remain in full force and effect until the entire principal, interest and premium, if any, on the Notes and all other sums due under this Agreement shall have been paid and such obligations letter shall not be affectedaffected by any act, modified omission, matter or impaired upon the happening from time to time thing which, but for this provision, might reduce, release or prejudice any of any eventits obligations under this letter in whole or in part, including without limitation any of the following, and whether or not with notice known to or the consent of the Obligorsit:
(1i) any time or waiver granted to or composition with the genuineness, validity, regularity or enforceability beneficiary of the Notes, this Agreement or any other agreement or any of the terms of any thereof, the continuance of any obligation on the part of any Obligor or any other Person on or in respect of the Notes or under this Agreement or any other agreement or the power or authority or the lack of power or authority of any Obligor to issue the Notes or any Obligor to execute and deliver this Agreement or any other agreement or to perform any of its obligations hereunder or the existence or continuance of any Obligor or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by an Obligor or any other Person of any obligations of any kind or character whatsoever under the Notes, this Agreement or any other agreement; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of any Obligor or any other Person or in respect of the property of an Obligor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of an Obligor or any other Person; or
(4) impossibility or illegality of performance on the part of any Obligor or any other Person of its obligations under the Notes, this Agreement or any other agreements; or
(5) in respect of an Obligor or any other PersonPool LC, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to an Obligor or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performanceObligor, or any other force majeureperson (unless the Bank knowingly granted that time or waiver, whether or not beyond knowingly entered into that composition, Without DLJ's consent);
(ii) the control of an taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance person or any other happening non-presentation or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason nonobservance of any taxes, assessments, expenses, Indebtedness, obligations formality or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against an Obligor or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by an Obligor or any other Person, or against any sums payable requirement in respect of any instrument or any failure to realise the Notes or under this Agreement, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; orfull value of any security;
(7iii) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by an Obligor or any other Person of its respective obligations under or in respect of the Notes, this Agreement or any other agreement; or
(8) the failure of any Obligor to receive any benefit from or as a result of its execution, delivery and performance of this Agreement; or
(9) any failure incapacity or lack of diligence in collection powers, authority or protection, failure in presentment legal personality of or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Obligor of failure of an Obligor dissolution or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, this Agreement or any other agreement or failure to resort for payment to an Obligor or to any other Person or to any other Agreement or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other agreement, the advance of additional money to an Obligor or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, this Agreement or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any merger or consolidation of an Obligor or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of an Obligor or any other Person to any other Person, or any change in the ownership of any shares of an Obligor members or any other Person or any release of any Obligor; or
(12) any defense whatsoever that: (i) an Obligor or any other Person might have to the payment status of the Notes (principal, premium, if any, or interest), other than indefeasible payment thereof in Federal or other immediately available funds, or (ii) an Obligor or any other Person might have to the performance or observance of any beneficiary of the provisions of the Notes, this Agreement or any other agreement, whether through the satisfaction or purported satisfaction by an Obligor or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise, other than the defense of indefeasible payment in full in cash of the Notes; or
(13) any act or failure to act with regard to the Notes, this Agreement or any other agreement or anything which might vary the risk of any Obligor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge ofPool LC, any Obligor or any other Person person;
(iv) any variation (however fundamental) or replacement of a Finance Document;
(v) any unenforceability, illegality, invalidity or frustration of ally obligation of any person under any Finance Document or any other document or security (other than this letter), or any failure of any Obligor to become bound by the terms of any Finance Document; and
(vi) any postponement, discharge, reduction, non-provability or other similar circumstance affecting any obligation of any Obligor under a Finance Document resulting from any insolvency, liquidation or dissolution proceedings or from any law, regulation or order.
(d) DLJ's obligations under this letter are a continuing security and in addition to and are not in any way prejudiced by any collateral or other security now or subsequently held by the Bank or any Security Interest to which the Bank may be entitled.
(e) Where any discharge (whether in respect of the obligations of any Obligor or other Person under this Agreement any security for those obligations or any other agreement, other than the defense of indefeasible payment in full in cash of the Notes; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Agreement and the Notes and the parties hereto that the obligations of each Obligor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the indefeasible payment in full in cash of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and all other sums due and payable under this Agreement, at the place specified in and all in the manner and with the effect provided in the Notes and this Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it otherwise) is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, an Obligor shall default under or in respect of the terms of the Notes or this Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by an Obligor under the Notes or this Agreement shall remain in full force and effect and shall apply to each and every subsequent default.
(d) To the extent of any payments made under this Agreement, each Obligor making such payment shall have a right of contribution from the other Obligors, but such Obligor covenants and agrees that such right of contribution shall be subordinate in right of payment to the rights of the holder of Notes for which full payment has not been made or provided for and, to that end, such Obligor agrees not to claim or enforce any such right of contribution unless and until all of the Notes and all other sums due and payable under this Agreement have been fully and irrevocably paid and discharged.
(e) Each Obligor agrees that to the extent an Obligor or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Obligors’ obligations hereunder, as if said payment had not been made. The liability of the Obligors hereunder shall not be reduced or discharged, in whole or in part, by any payment to any holder of a Note from any source that is thereafter paid, returned or refunded in whole or in part by reason of or any arrangement is made on the assertion of a claim faith of any kind relating theretopayment, includingsecurity or other disposition which is avoided or must be restored on insolvency, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, liquidation or fraud asserted by any account debtor or by any other Person.
(f) No holder of a Note shall be under any obligation: (1) to marshal any assets in favor of the Obligors or in payment of any or all of the liabilities of any Obligor under or otherwise in respect of the Notes or Obligors without limitation, the obligations liability of the Obligors hereunder or (2) to pursue any other remedy that the Obligors may or may not be able to pursue themselves and that may lighten the Obligors’ burden, any right to which each Obligor hereby expressly waives.
(g) Notwithstanding anything to the contrary in this Agreement, including this Section 22.9, all obligations and liabilities of an Obligor DLJ under this Agreementletter share continue as if the discharge or arrangement had not occurred. The Bank may concede or compromise any claim that any payment, the Notes and any Joinder Agreement shall automatically, without any action on the part of any party hereto, terminate and be void and of no further force and effect with respect security or other disposition is liable to such Obligor (avoidance or any successor thereto or assign thereof) if and when such Obligor (or any successor thereto or assign thereof) is released from this Agreement, the Notes and any Joinder Agreement by reason of the express provisions of Section 2.2 of this Agreement or is otherwise released from this Agreement, the Notes and any Joinder Agreement in accordance with the terms of this Agreementrestoration.
Appears in 1 contract
Nature of Obligations. (a) Section 3.1 The obligations Contribution is irrevocable on the part of the Obligors under this Agreement and the Notes are joint and several primary obligations of each Obligor regardless of which Obligor actually receives the proceeds of any Notes or the manner in which the Obligors, any Purchaser or any holder thereof accounts for such Notes on its books and records.
(b) Each Obligor hereby waives, to the fullest extent permitted by law:
(1) notice of the creation, renewal or accrual of any liability of an Obligor, present or future, or of the reliance of such holder of Notes upon this Agreement (it being understood that every Indebtedness, liability and obligation described in this Agreement or the Notes shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Agreement and the Notes);
(2) demand of payment by any holder of Notes from an Obligor or any other Person indebted in any manner on or for any of the Indebtedness, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any holder of Notes or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such ObligorEquity Provider. The obligations of each Obligor under this Agreement and the Notes and the rights of any holder of Notes to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by indefeasible payment in full in cash of the Notes and the obligations of the Obligors under this Agreement), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) Except as otherwise expressly provided in By executing this Agreement, the obligations of the Obligors hereunder Equity Provider acknowledges and under the Notes shall be binding upon the Obligors and their successors and assignsagrees that it may not cancel, and shall remain in full force and effect until the entire principal, interest and premium, if any, on the Notes and all other sums due under this Agreement shall have been paid and such obligations shall not be affected, modified terminate or impaired upon the happening from time to time of any event, including without limitation any of the following, whether or not with notice to or the consent of the Obligors:
(1) the genuineness, validity, regularity or enforceability of the Notes, revoke this Agreement or any other agreement or any of the terms of any thereof, the continuance of any obligation on the part of any Obligor or any other Person on or in respect of the Notes or under this Agreement or any other agreement or the power or authority or the lack of power or authority of any Obligor to issue the Notes or any Obligor to execute and deliver this Agreement or any other agreement or to perform any of its obligations hereunder or the existence or continuance of any Obligor or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the performance by an Obligor or any other Person of any obligations of any kind or character whatsoever under the Notes, this Agreement or any other agreement; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of any Obligor or any other Person or in respect of the property of an Obligor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of an Obligor or any other Person; or
(4) impossibility or illegality of performance on the part of any Obligor or any other Person of its obligations under the Notes, this Agreement or any other agreements; or
(5) in respect of an Obligor or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to an Obligor or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of an Obligor or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against an Obligor or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by an Obligor or any other Person, or against any sums payable in respect of the Notes or under this Agreement, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by an Obligor or any other Person of its respective obligations under or in respect of the Notes, this Agreement or any other agreement; or
(8) the failure of any Obligor to receive any benefit from or as a result of its execution, delivery and performance of this Agreement; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Obligor of failure of an Obligor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, this Agreement or any other agreement or failure to resort for payment to an Obligor or to any other Person or to any other Agreement or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other agreement, the advance of additional money to an Obligor or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, this Agreement or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any merger or consolidation of an Obligor or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of an Obligor or any other Person to any other Person, or any change in the ownership of any shares of an Obligor or any other Person or any release of any Obligor; or
(12) any defense whatsoever that: (i) an Obligor or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than indefeasible payment thereof in Federal or other immediately available funds, or (ii) an Obligor or any other Person might have to the performance or observance of any of the provisions of the Notes, this Agreement or any other agreement, whether through the satisfaction or purported satisfaction by an Obligor or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise, other than the defense of indefeasible payment in full in cash of the Notes; or
(13) any act or failure to act with regard to the Notes, this Agreement or any other agreement or anything which might vary the risk of any Obligor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Obligor or any other Person in respect of the obligations of any Obligor or other Person under this Agreement or any other agreement, other than the defense of indefeasible payment in full in cash of the Notes; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Agreement and the Notes and the parties hereto that the obligations of each Obligor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the indefeasible payment in full in cash of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and all other sums due and payable under this Agreement, at the place specified in and all in the manner and with the effect provided in the Notes and this Agreement, as each may be amended or modified from time to timehereunder. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, an Obligor shall default under or in respect of the terms of the Notes or this Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by an Obligor under the Notes or this This Agreement shall remain in full force and effect without regard to, and shall apply to each and every subsequent default.
not be released, discharged, or in any way affected or impaired by: (di) To the extent of any payments made under this Agreementbankruptcy, each Obligor making such payment shall have a right of contribution from the other Obligorsinsolvency, but such Obligor covenants and agrees that such right of contribution shall be subordinate in right of payment to the rights reorganization, arrangement, readjustment, liquidation, or similar proceeding or dissolution of the holder of Notes for which full payment has not been made Buyer or provided for and, to that end, such Obligor agrees not to claim the Equity Provider; (ii) any merger or enforce any such right of contribution unless and until all consolidation of the Notes and all other sums due and payable under this Agreement have been fully and irrevocably paid and discharged.
(e) Each Obligor agrees that to Equity Provider, the extent an Obligor Buyer or any other Person makes any payment on any Note, which payment entity or any part thereof is subsequently invalidatedsale, voidedlease, declared to be fraudulent or preferentialtransfer of all or any of the assets of Equity Provider, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiverthe Buyer, or any other Person under entity (and shall be binding upon the Equity Provider’s successors and assigns); (iii) any bankruptcy code, common lawchange in the legal or beneficial ownership, or equitable causethe existence or structure as a partnership or other entity, then of the Equity Provider or the Buyer; (iv) any winding up or dissolution of the Buyer; and (v) to the extent of such paymentpermitted under applicable law, any other occurrence or circumstance whatsoever, similar to the foregoing, which might otherwise constitute a legal or equitable defense which might otherwise limit recourse against the Equity Provider.
Section 3.2 The Equity Provider agrees that for so long as this Agreement is in place, the Equity Provider has an absolute and unconditional (other than as provided in Section 1) obligation or the part thereof intended to be satisfied shall be revived to, and continued in full force and effect with respect shall, pursuant to the Obligors’ obligations hereunderterms hereof, as if said payment had not been made. honor its Contribution obligation immediately upon written request by the Buyer delivered to the Equity Provider (the “Contribution Notice”), without deduction, setoff, counterclaim or defense, by funding to an account designated in the Contribution Notice the Contribution amount or any lesser amount set forth in such Contribution Notice.
Section 3.3 The liability Equity Provider hereby unconditionally and irrevocably waives diligence, presentment, demand, protest and all notices whatsoever in respect of this Agreement.
Section 3.4 The Equity Provider warrants and agrees that each of the Obligors hereunder shall not be reduced or dischargedwaivers and consents set forth in this Agreement are made voluntarily and unconditionally after consultation with legal counsel and with full knowledge of their significance and consequences, in whole or in part, by any payment with the understanding that events giving rise to any holder of a Note from any source that is thereafter paiddefense or right waived may diminish, returned destroy or refunded in whole otherwise adversely affect rights which such Person otherwise may have against the Buyer or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.
(f) No holder of a Note shall be under any obligation: (1) to marshal any assets in favor . If, notwithstanding the intent of the Obligors or in payment of any or all of the liabilities of any Obligor under or in respect of the Notes or the obligations of the Obligors hereunder or (2) to pursue any other remedy parties that the Obligors may or may not be able to pursue themselves and that may lighten the Obligors’ burden, any right to which each Obligor hereby expressly waives.
(g) Notwithstanding anything to the contrary in this Agreement, including this Section 22.9, all obligations and liabilities of an Obligor under this Agreement, the Notes and any Joinder Agreement shall automatically, without any action on the part of any party hereto, terminate and be void and of no further force and effect with respect to such Obligor (or any successor thereto or assign thereof) if and when such Obligor (or any successor thereto or assign thereof) is released from this Agreement, the Notes and any Joinder Agreement by reason of the express provisions of Section 2.2 of this Agreement or is otherwise released from this Agreement, the Notes and any Joinder Agreement in accordance with the terms of this AgreementAgreement shall control in any and all circumstances, any such waivers or consents are determined to be unenforceable under applicable law, such waivers and consents shall be effective to the maximum extent permitted by law.
Appears in 1 contract
Sources: Equity Purchase Agreement (American Midstream Partners, LP)
Nature of Obligations. (a) The obligations Borrowers agree that all Obligations of the Obligors each Borrower under or in respect of this Agreement and the Notes are or any other Loan Document shall be joint and several primary obligations of each Obligor regardless of which Obligor actually receives all the proceeds of any Notes or the manner in which the Obligors, any Purchaser or any holder thereof accounts for such Notes on its books and recordsBorrowers.
(b) Each Obligor hereby waivesBorrower waives presentment to, demand of payment from and protest to the fullest extent permitted by law:
(1) other Borrowers of any of the Obligations, and also waives notice of acceptance of its Obligations and notice of protest for nonpayment. The Obligations of a Borrower hereunder shall not be affected by (i) the creation, renewal or accrual failure of any liability Lender or the Administrative Agent to assert any claim or demand or to enforce any right or remedy against the other Borrowers under the provisions of an Obligor, present or future, or of the reliance of such holder of Notes upon this Agreement (it being understood that every Indebtedness, liability and obligation described in this Agreement or any of the Notes shall conclusively be presumed to have been createdother Loan Documents or otherwise; (ii) any rescission, contracted waiver, amendment or incurred in reliance upon modification of any of the execution terms or provisions of this Agreement and Agreement, any of the Notes);
(2) demand of payment by any holder of Notes from an Obligor other Loan Documents or any other Person indebted in agreement; or (iii) the failure of any manner on Lender to exercise any right or for remedy against any of the Indebtedness, liabilities or obligations hereby guaranteed; andother Borrower.
(3c) presentment for the Each Borrower further agrees that its agreement hereunder constitutes a promise of payment when due and not of collection, and waives any right to require that any resort be had by any holder Lender to any balance of Notes any deposit account or credit on the books of any Lender in favor of any other Borrower or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Obligor. Person.
(d) The obligations Obligations of each Obligor under this Agreement and the Notes and the rights of any holder of Notes to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, Borrower hereunder shall not be subject to any reduction, limitation, impairment or termination (other than by indefeasible payment in full in cash of the Notes and the obligations of the Obligors under this Agreement)for any reason, whether by reason of any claim of any character whatsoever or otherwise including, without limitation, compromise, and shall not be subject to any defensedefense or setoff, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.
(c) Except as otherwise expressly provided in this Agreementwhatsoever by reason of the invalidity, illegality or unenforceability of the Obligations of the other Borrowers or otherwise. Without limiting the generality of the foregoing, the obligations Obligations of each Borrower hereunder shall not be discharged or impaired or otherwise affected by the failure of the Obligors hereunder and under the Notes shall be binding upon the Obligors and their successors and assigns, and shall remain in full force and effect until the entire principal, interest and premium, if any, on the Notes and all other sums due Administrative Agent or any Lender to assert any claim or demand or to enforce any remedy under this Agreement shall have been paid and such obligations shall not be affected, modified or impaired upon the happening from time to time of under any event, including without limitation any of the following, whether or not with notice to or the consent of the Obligors:
(1) the genuineness, validity, regularity or enforceability of the Notes, this Agreement other Loan Document or any other agreement agreement, by any waiver or any of the terms modification in respect of any thereof, the continuance of any obligation on the part of any Obligor or any other Person on or in respect of the Notes or under this Agreement or any other agreement or the power or authority or the lack of power or authority of any Obligor to issue the Notes or any Obligor to execute and deliver this Agreement or any other agreement or to perform any of its obligations hereunder or the existence or continuance of any Obligor or any other Person as a legal entity; or
(2) by any default, failure or delay, willful or otherwise, in the performance of the Obligations of the other Borrowers, or by an Obligor or any other Person of any obligations of any kind act or character whatsoever under the Notes, this Agreement omission which may or any other agreement; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of any Obligor or any other Person or in respect of the property of an Obligor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of an Obligor or any other Person; or
(4) impossibility or illegality of performance on the part of any Obligor or any other Person of its obligations under the Notes, this Agreement or any other agreements; or
(5) in respect of an Obligor or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to an Obligor or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of an Obligor or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Indebtedness, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against an Obligor or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by an Obligor or any other Person, or against any sums payable in respect of the Notes or under this Agreement, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or might in any way adversely affect, the performance by an Obligor or any other Person of its respective obligations under or in respect of the Notes, this Agreement or any other agreement; or
(8) the failure of any Obligor to receive any benefit from or as a result of its execution, delivery and performance of this Agreement; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Obligor of failure of an Obligor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, this Agreement or any other agreement or failure to resort for payment to an Obligor manner or to any other Person or to any other Agreement or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other agreement, the advance of additional money to an Obligor or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, this Agreement or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or
(11) any merger or consolidation of an Obligor or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of an Obligor or any other Person to any other Person, or any change in the ownership of any shares of an Obligor or any other Person or any release of any Obligor; or
(12) any defense whatsoever that: (i) an Obligor or any other Person might have to the payment of the Notes (principal, premium, if any, or interest), other than indefeasible payment thereof in Federal or other immediately available funds, or (ii) an Obligor or any other Person might have to the performance or observance of any of the provisions of the Notes, this Agreement or any other agreement, whether through the satisfaction or purported satisfaction by an Obligor or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise, other than the defense of indefeasible payment in full in cash of the Notes; or
(13) any act or failure to act with regard to the Notes, this Agreement or any other agreement or anything which might extent vary the risk of such Borrower or otherwise operate as a discharge of such Borrower as a matter of law or equity.
(e) Each Borrower further agrees that its Obligations hereunder shall continue to be effective or be reinstated, as the case may be, if at any Obligor time payment, or any part thereof, of principal of or interest on any Obligation of the other Person; or
(14) any other circumstance which might Borrowers is rescinded or must otherwise constitute a defense available to, or a discharge of, any Obligor be restored by the Administrative Agent or any other Person Lender upon the occurrence of a Bankruptcy Event in respect of such Borrower, any of the obligations other Borrowers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any Obligor or other Person under this Agreement right which the Administrative Agent or any other agreementLender may have at law or in equity against any Borrower by virtue hereof, other than upon the defense failure of indefeasible payment in full in cash of the Notes; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed a Borrower to exclude pay any other acts, failures or omissions, though not specifically mentioned above, it being the purpose Obligation when and intent of this Agreement and the Notes and the parties hereto that the obligations of each Obligor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the indefeasible payment in full in cash of the principal of, premium, if any, and interest on the Notes in accordance with their respective terms whenever as the same shall become due due, whether at maturity, by acceleration, after notice of prepayment or otherwise, each other Borrower hereby promises to and payable as will, upon receipt of written demand by the Administrative Agent, forthwith pay, or cause to be paid, in cash the Notes provided amount of such unpaid Obligations, and all other sums due and payable under this Agreementthereupon each Lender shall, at in a reasonable manner, assign the place specified in and all in the manner and with the effect provided in the Notes and this Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, an Obligor shall default under or in respect amount of the terms Obligations of the Notes other Borrowers owed to it and paid by such Borrower pursuant to this guarantee to such Borrower, such assignment to be pro tanto to the extent to which the Obligations in question were discharged by such Borrower, or this Agreement make such disposition thereof as such Borrower shall direct (all without recourse to any Lender and that notwithstanding recovery hereunder for without any representation or in respect of warranty by any given default or defaults by an Obligor under the Notes or this Agreement shall remain in full force and effect and shall apply to each and every subsequent defaultLender).
(dg) To the extent Upon payment by a Borrower of any payments made under this Agreementamount as provided above, each Obligor making all rights of such payment shall have Borrower against another Borrower, as the case may be, arising as a result thereof by way of right of contribution from the other Obligors, but such Obligor covenants subrogation or otherwise shall in all respects be subordinated and agrees that such right of contribution shall be subordinate junior in right of payment to the rights prior indefeasible payment in full of all the holder of Notes for which full payment has not been made or provided for and, to that end, such Obligor agrees not to claim or enforce any such right of contribution unless and until all of the Notes and all other sums due and payable under this Agreement have been fully and irrevocably paid and discharged.
(e) Each Obligor agrees that Obligations to the extent an Obligor or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Obligors’ obligations hereunder, as if said payment had not been made. The liability of the Obligors hereunder shall not be reduced or discharged, in whole or in part, by any payment to any holder of a Note from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other PersonLenders.
(f) No holder of a Note shall be under any obligation: (1) to marshal any assets in favor of the Obligors or in payment of any or all of the liabilities of any Obligor under or in respect of the Notes or the obligations of the Obligors hereunder or (2) to pursue any other remedy that the Obligors may or may not be able to pursue themselves and that may lighten the Obligors’ burden, any right to which each Obligor hereby expressly waives.
(g) Notwithstanding anything to the contrary in this Agreement, including this Section 22.9, all obligations and liabilities of an Obligor under this Agreement, the Notes and any Joinder Agreement shall automatically, without any action on the part of any party hereto, terminate and be void and of no further force and effect with respect to such Obligor (or any successor thereto or assign thereof) if and when such Obligor (or any successor thereto or assign thereof) is released from this Agreement, the Notes and any Joinder Agreement by reason of the express provisions of Section 2.2 of this Agreement or is otherwise released from this Agreement, the Notes and any Joinder Agreement in accordance with the terms of this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Macdermid Inc)