Payment Guarantee 53.1. On Contracts where one hundred (100%) percent performance bonds and payment bonds are executed, this Article does not apply.
53.2. In the event the terms of this Contract do not require the Contractor to provide a payment bond or where the Contract does not require a payment bond for one hundred (100%) percent of the Contract price, the City shall, in accordance with the terms of this Article, guarantee payment of all lawful claims for:
53.2.1. Wages and compensation for labor performed and/or services rendered; and
53.2.2. Materials, equipment, and supplies provided, whether incorporated into the Work or not, when demands have been filed with the City as provided hereinafter by any person, firm, or corporation which furnished labor, material, equipment, supplies, or any combination thereof, in connection with the Work performed hereunder (hereinafter referred to as the “beneficiary”) at the direction of the City or the Contractor.
53.3. The provisions of Article 53.2 are subject to the following limitations and conditions:
53.3.1. If the Contractor provides a payment bond for a value that is less than one hundred (100%) percent of the value of the Contract Work, the payment bond provided by the Contractor shall be primary (and non-contributing) to the payment guarantee provided under this Article.
53.3.2. The guarantee is made for the benefit of all beneficiaries as defined in Article 53.2 provided that those beneficiaries strictly adhere to the terms and conditions of Articles 53.3.4 and 53.3.5.
53.3.3. Nothing in this Article shall prevent a beneficiary providing labor, services or material for the Work from suing the Contractor for any amounts due and owing the beneficiary by the Contractor.
53.3.4. Every person who has furnished labor or material, to the Contractor or to a Subcontractor of the Contractor, in the prosecution of the Work and who has not been paid in full therefor before the expiration of a period of ninety (90) Days after the date on which the last of the labor was performed or material was furnished by him/her for which the claim is made, shall have the right to sue on this payment guarantee in his/her own name for the amount, or the balance thereof, unpaid at the time of commencement of the action; provided, however, that a person having a direct contractual relationship with a Subcontractor of the Contractor but no contractual relationship express or implied with the Contractor shall not have a right of action upon the guarantee unless he/she shall have given written notice to the Contractor within one hundred twenty (120) Days from the date on which the last of the labor was performed or the last of the material was furnished, for which his/her claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or for whom the labor was performed. The notice shall be served by delivering the same personally to the Contractor or by mailing the same by registered mail, postage prepaid, in an envelope addressed to the Contractor at any place where it maintains an office or conducts its business; provided, however, that where such notice is actually received by the Contractor by other means, such notice shall be deemed sufficient.
53.3.5. Except as provided in Labor Law Section 220-g, no action on this payment guarantee shall be commenced after the expiration of the one-year limitations period set forth in Section 137(4)(b) of the State Finance Law.
53.3.6. The Contractor shall promptly forward to the City any notice or demand received pursuant to Article 53.
3.4. The Contractor shall inform the City of any defenses to the notice or demand and shall forward to the City any documents the City requests concerning the notice or demand.
Parent Guarantee (a) Holdings hereby agrees to become a party to the Indenture as a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 of the Indenture.
(b) Holdings further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation to, demand of, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
RATIFICATION OF INDENTURE; SUPPLEMENTAL INDENTURE FOR ADDITIONAL GUARANTEES PART OF INDENTURE Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture for Additional Guarantees shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall by bound hereby.
Limited Guarantee (a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 1.24% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed US$ 5,573,361 (the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement, or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter or the Escrow Agreement (as defined in the Equity Commitment Letter).
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
Parent Guaranty (a) In consideration of good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and subject to subsection (d) below, the Parent Guarantor hereby irrevocably and unconditionally guarantees (the "Parent Guaranty" and, together with the Guaranty of the Parent Guarantor, the "Parent Guaranties") to each holder of a Subsidiary Guaranty and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Subsidiary Guaranties or the obligations of any of the Subsidiaries under the Subsidiary Guaranties, that all obligations of each of the Subsidiaries to the Holders or the Trustee under the Subsidiary Guaranties will be promptly paid in full or performed, all in accordance with the terms of the various Subsidiary Guaranties.
(b) The Parent Guarantor hereby agrees that its obligations with regard to this Parent Guaranty shall be unconditional, irrespective of the validity, regularity or enforceability of the Subsidiary Guaranties or this Indenture, the absence of any action to enforce the same, any delays in obtaining or realizing upon or failures to obtain or realize upon collateral, the recovery of any judgment against any Subsidiary, any action to enforce the same or any other circumstances that might otherwise constitute a legal or equitable discharge or defense of any Subsidiary under the Subsidiary Guaranties. The Parent Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of any Subsidiary, any right to require a proceeding first against any Subsidiary or right to require the prior disposition of the assets of any Subsidiary to meet its obligations, protest, notice and all demands whatsoever and covenants that this Parent Guaranty will not be discharged except by complete performance of the obligations of the Subsidiaries under the Subsidiary Guaranties.
(c) If any Holder or the Trustee is required by any court or otherwise to return to any Subsidiary, or any Custodian, Trustee, or similar official acting in relation to such Subsidiary, any amount paid by such Subsidiary to the Trustee or such Holder, this Parent Guaranty, to the extent theretofore discharged, shall be reinstated in full force and effect. The Parent Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until the principal of, premium, if any, and interest on all Securities issued hereunder shall have been paid in full. The Parent Guarantor further agrees that, as between such Subsidiary, on the one hand, and the Holders and the Trustee, on the other hand, (i) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.2 for the purposes of this Parent Guaranty, notwithstanding any stay, injunction or other prohibition preventing such acceleration as to any Subsidiary of the obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of those obligations as provided in Section 6.2, those 115 127 obligations (whether or not due and payable) will forthwith become due and payable by the Parent Guarantor for the purpose of this Parent Guaranty.
(d) It is the intention of the Parent Guarantor and the Subsidiaries that the obligations of the Parent Guarantor hereunder shall be, but not in excess of, the maximum amount permitted by applicable law. Accordingly, if the obligations in respect of the Parent Guaranty would be annulled, avoided or subordinated to the creditors of the Parent Guarantor by a court of competent jurisdiction in a proceeding actually pending before such court as a result of a determination both that the Parent Guaranty was made without fair consideration and, immediately after giving effect thereto, or at the time that any demand is made thereupon, the Parent Guarantor was insolvent or unable to pay its debts as they mature or left with an unreasonably small capital, then the obligations of the Parent Guarantor under the Parent Guaranty shall be reduced by such an amount, if any, that would result in the avoidance of such annulment, avoidance or subordination; provided, however, that any reduction pursuant to this paragraph shall be made in the smallest amount as is necessary to reach such result. For purposes of this paragraph, "fair consideration," "insolvency," "unable to pay its debts as they mature," "unreasonably small capital" and the effective times of reductions, if any, required by this paragraph shall be determined in accordance with applicable law.
(e) The Parent Guarantor shall be subrogated to all rights of the Holders against the Subsidiaries under the Subsidiary Guaranties in respect of any amounts paid by the Parent Guarantor pursuant to the provisions of the Parent Guaranty; provided, however, that the Parent Guarantor shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until the principal of, premium, if any, and interest on all Securities issued hereunder shall have been paid in full.
