Guarantees. (a) Subject to the provisions of this Article X, each Subsidiary Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with each other Guarantor, the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation. (b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations. (c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations. (d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity. (e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise. (f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding). (g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee. (h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee. (i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 2 contracts
Sources: Indenture (Neiman Marcus Group LTD LLC), Indenture (Neiman Marcus Group LTD LLC)
Guarantees. (a) Subject to Each of the provisions of this Article XGuarantors hereby, each Subsidiary Guarantor hereby jointly and severally, unconditionally and irrevocably, fully and unconditionally guaranteesguarantees to the Administrative Agent, on a senior basis, as guarantor and not as a surety, with each other Guarantor, for the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations ratable benefit of the Issuers under this Indenture Administrative Agent and the Notes Documents (including interest that, but for Lenders the filing prompt and complete payment and performance of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (Anything herein or in any other Loan Document to the extent lawful) presentation tocontrary notwithstanding, demand ofthe maximum liability of each Guarantor hereunder and under the other Loan Documents in respect of the Obligations, payment from shall in no event exceed the amount which can be guaranteed by such Guarantor under applicable federal and protest state laws relating to the Issuers insolvency of any of the Guaranteed Obligations and also waives debtors (after giving effect to the extent lawful) notice right of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligationscontribution established in Section 2.2).
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (the Obligations, may at any time and not a Guarantee of collection) and waives any right from time to require that any resort be had by any Holder to any security held for payment time exceed the amount of the Guaranteed Obligationsliability of such Guarantor hereunder without impairing the guarantees contained in this Section 2 or affecting the rights and remedies of the Administrative Agent or any Lender hereunder.
(d) Except as set forth Each Guarantor’s guarantees contained in this Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will 2 shall remain in full force and effect until all the Obligations (other than contingent indemnification and contingent expense reimbursement obligations) of each Guarantor under the guarantees contained in this Section 2 shall have been satisfied by payment in full and the Commitments have been terminated , notwithstanding that from time to time during the term of all the Guaranteed Obligations Credit Agreement any Loan Party may be free from any of the Obligations.
(e) Except as provided in Section 4.14, no payment made by any of the Guarantors, any other guarantor or such Subsidiary Guarantor is released any other Person or received or collected by the Administrative Agent or any Lender from its Subsidiary Guarantee in compliance with Section 4.1any of the Guarantors, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective any other guarantor or be reinstated, as the case may be, if any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time payment, or any part thereof, from time to time in reduction of principal of, premium, if any, or interest on any in payment of the Guaranteed Obligations is rescinded shall be deemed to modify, reduce, release or must otherwise be restored by any Holder upon affect the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation liability of any other right Guarantor hereunder which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guaranteeshall, notwithstanding any stay, injunction or such payment (other prohibition preventing than any payment made by such acceleration Guarantor in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) or any payment received or collected from such Guarantor in respect of the event of any such declaration of acceleration Obligations), remain liable for the Obligations up to the maximum liability of such Guaranteed Obligations, such Guaranteed Guarantor hereunder until the Obligations (whether or not due are paid in full and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary GuaranteeCommitments have been terminated.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 2 contracts
Sources: Guarantee Agreement (Constellation Brands, Inc.), Guarantee Agreement (Constellation Brands, Inc.)
Guarantees. There shall be included in determining Consolidated EBITDA for any period, without duplication, (aA) Subject to the provisions Acquired EBITDA of this Article Xany Person, each property, business or asset acquired by the Lead Borrower or any Restricted Subsidiary Guarantor hereby jointly and severallyduring such period (but not the Acquired EBITDA of any related Person, irrevocablyproperty, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with each other Guarantor, the full and punctual payment when due, whether at Stated Maturity, by acceleration business or otherwise, all Obligations of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (assets to the extent lawful) that the Guaranteed Obligations may be extended or renewednot so acquired), in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation tonot subsequently sold, demand transferred or otherwise disposed by the Lead Borrower or such Restricted Subsidiary during such period (each such Person, property, business or asset acquired and not subsequently so disposed of, payment from an “Acquired Entity or Business”) and protest to the Issuers Acquired EBITDA of any Unrestricted Subsidiary that is converted into a Restricted Subsidiary during such period (each, a “Converted Restricted Subsidiary”), based on the actual Acquired EBITDA of such Acquired Entity or Business or Converted Restricted Subsidiary for such period (including the Guaranteed Obligations and also waives (portion thereof occurring prior to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collectionsuch acquisition) and waives any right to require that any resort be had by any Holder to any security held (B) for payment the purposes of compliance with the Guaranteed Obligations.
(d) Except as covenant set forth in Section 10.2 7.09 and Article VIIIthe calculation of the Consolidated First Lien Net Leverage Ratio, the obligations Consolidated Secured Net Leverage Ratio, the Consolidated Total Net Leverage Ratio, and the Consolidated Interest Coverage Ratio, an adjustment in respect of each Acquired Entity or Business equal to the amount of the Pro Forma Adjustment with respect to such Acquired Entity or Business for such period (including the portion thereof occurring prior to such acquisition) as specified in a certificate executed by a Responsible Officer and delivered to the Lenders and the Administrative Agent. There shall be excluded in determining Consolidated EBITDA for any period the Disposed EBITDA of any Person, property, business or asset (other than an Unrestricted Subsidiary) sold, transferred or otherwise disposed of or, closed or classified as discontinued operations (but if such operations are classified as discontinued due to the fact that they are subject to an agreement to dispose of such operations, only when and to the extent such operations are actually disposed of) by the Lead Borrower or any Restricted Subsidiary Guarantor hereunder will not during such period (each such Person, property, business or asset so sold or disposed of, a “Sold Entity or Business”) and the Disposed EBITDA of any Restricted Subsidiary that is converted into an Unrestricted Subsidiary during such period (each a “Converted Unrestricted Subsidiary”), based on the actual Disposed EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary for such period (including the portion thereof occurring prior to such sale, transfer or disposition). Notwithstanding anything to the contrary contained herein, for purposes of determining Consolidated EBITDA under this Agreement for any period that includes any of the fiscal quarters ended on December 31, 2018, March 31, 2019, June 30, 2019 and September 30, 2019 Consolidated EBITDA for such fiscal quarters shall be $28,419,000, $36,219,000, $40,703,000 and $41,511,000, respectively, in each case, as may be subject to any reduction, limitation, impairment or termination adjustment set forth in the immediately preceding paragraph for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) be subject four-quarter period with respect to any defense of setoffacquisitions, counterclaim, recoupment dispositions or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing conversions occurring after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)Closing Date.
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 2 contracts
Sources: Credit Agreement (Bumble Inc.), Credit Agreement (Bumble Inc.)
Guarantees. (a) Subject Except to the provisions of this Article Xextent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Subsidiary Guarantor hereby jointly covenants that its Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee and severally, irrevocably, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with each other Guarantorthis Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the full and punctual payment when dueSubsidiary Guarantors or any custodian, whether at Stated Maturitytrustee, by acceleration or otherwise, all Obligations of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy liquidator or other insolvency proceeding with respect similar official acting in relation to either the Company or the Subsidiary Guarantors any amount paid by either to the IssuersTrustee or such Holder, would have accrued on any Obligationthis Subsidiary Guarantee, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders extent theretofore discharged, shall be reinstated in full force and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”)effect. Each Subsidiary Guarantor agrees (that it shall not be entitled to any right of subrogation in relation to the extent lawful) that the Guaranteed Obligations may be extended or renewed, Holders in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal respect of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect guaranteed hereby until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIIIobligations guaranteed hereby. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such the Subsidiary GuarantorGuarantors, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (ix) the maturity of the Guaranteed Obligations obligations guaranteed by this Guarantee hereby may be accelerated as provided in this Indenture Section 6.02 hereof for the purposes of its this Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations obligations guaranteed by this Guarantee hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligationsobligations as provided in Section 6.02 hereof, such Guaranteed Obligations obligations (whether or not due and payable) will shall forthwith become due and payable by the Guarantor Subsidiary Guarantors for the purposes purpose of this Subsidiary Guarantee.
(h) Each . The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by so long as the Trustee or exercise of such right does not impair the rights of the Holders in enforcing any rights under this the Subsidiary Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 2 contracts
Sources: Indenture (Digex Inc/De), Indenture (Intermedia Communications Inc)
Guarantees. (a) Subject to the provisions of this Article X, each Subsidiary Each Guarantor hereby unconditionally guarantees, jointly and severally, irrevocably, fully to each Holder and unconditionally guarantees, on a senior basis, as guarantor to the Trustee and not as a surety, with each other Guarantor, its successors and assigns (a) the full and punctual payment of principal of (and premium, if any) and interest on the Securities when due, whether at Stated Maturity, by acceleration acceleration, by redemption or otherwise, and all Obligations other monetary obligations of the Issuers Issuer under this Indenture and the Notes Documents Securities and (including interest that, but for b) the filing full and punctual performance within applicable grace periods of a petition in any bankruptcy or all other insolvency proceeding with respect to obligations of the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders Issuer under this Indenture and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise Securities (all such obligations guaranteed by such Subsidiary Guarantors the foregoing being herein hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from itsuch Guarantor, and that it such Guarantor will remain bound under this Article X Twelve notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) . Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers Issuer of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes Securities or the Guaranteed Obligations.
. The obligations of each Guarantor hereunder shall not be affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Securities or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Securities or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Obligations of any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) any change in the ownership of such Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Note Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee 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.
(d) . Except as expressly set forth in Section 10.2 Sections 705, 706, 912, 1102, 1103, 1203 and Article VIII1208, the obligations of each Subsidiary Guarantor hereunder will shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and will shall not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will shall not (to the extent lawful) be discharged or impaired or otherwise 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 the Issuers or any other Person under this Indenture, the Notes Securities or any other agreement or otherwise; (ii) agreement, by any extension or renewal of any thereof; (iii) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenturethereof, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; obligations, or (viii) 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 any Subsidiary such Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Note Guarantee herein will 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, of (or premium, if any, ) or interest on any of the Guaranteed Obligations Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuers Issuer or otherwise.
(f) . 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 any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers Issuer to pay the principal of (or premium, if any) or interest on any of the Guaranteed Obligations Obligation when and as the same will shall become due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Obligation, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) and (including interest accruing after iii) all other monetary Obligations of the filing Issuer to the Holders and the Trustee. Each Guarantor agrees that it shall not be entitled to any right of subrogation in respect of any petition Obligations guaranteed hereby until payment in bankruptcy or the commencement full in cash of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) all Obligations. Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantorit, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (ix) the maturity of the Guaranteed Obligations guaranteed by this Guarantee hereby may be accelerated as provided in this Indenture Article Five for the purposes of its Subsidiary such Guarantor’s Note Guarantee in this Guaranteeherein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee hereby, and (iiy) in the event of any such declaration of acceleration of such Guaranteed ObligationsObligations as provided in Article Five, such Guaranteed Obligations (whether or not due and payable) will shall forthwith become due and payable by the such Guarantor for the purposes of this Subsidiary Guarantee.
(h) Section 1201. Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders any Holder in enforcing any rights under this Guarantee.
(i) Section 1201. No Issuers or the Foreign Restricted Subsidiary Guarantors will shall at any time be required to make become a notation Guarantor. Notwithstanding anything to the contrary contained herein (but subject to the following paragraph), if a Person is required to become a Guarantor pursuant to this Indenture, none of the Issuer or any Subsidiary shall be required to submit any application or filing or otherwise take any action to obtain any authorization or consent of any federal or state Governmental Authority required in order to cause such Person to become a Guarantor (and the requirement to provide such a Guarantee shall be tolled), in each case, to the extent an authorization or consent of such federal or state Governmental Authority is determined by CenturyLink, Level 3 Parent or the Issuer to be sought in respect of any Material Transaction or any financing relating thereto and has not yet been obtained; provided that at the time such federal or state Governmental Authority has approved such Material Transaction, the application, filing or other action to obtain any such authorization or consent of any federal or state Governmental Authority required in order to cause any Person to become a Guarantor shall promptly be made. Notwithstanding anything to the contrary herein, no Issuer Restricted Subsidiary shall Guarantee any of the Existing Notes, unless such Issuer Restricted Subsidiary is or becomes a Guarantor on the date on which such other guarantee is Incurred, which Guarantee will be pari passu with such Issuer Restricted Subsidiary’s guarantee of such Existing Notes to reflect and shall remain in effect for so long as such Issuer Restricted Subsidiary guarantees any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any GuaranteeExisting Notes.
Appears in 2 contracts
Sources: Indenture (Level 3 Parent, LLC), Indenture (Level 3 Parent, LLC)
Guarantees. (a) Subject The Parent Guarantor shall execute a Notation of Guarantee with respect to each series of Securities issued hereunder, although failure to so execute shall not negate an obligation of any such guarantor hereunder or under the relevant securities.
(b) Notwithstanding any provision of this Article Fourteen to the contrary, the provisions of this Article XFourteen shall be applicable only to, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 301, as entitled to the benefits of the Guarantee of each Guarantor identified in such designation and that has executed a Notation of Guarantee with respect to such series.
(c) For value received, each Subsidiary Guarantor hereby jointly and severally, irrevocablyfully, fully unconditionally and unconditionally guarantees, on a senior basis, as guarantor absolutely guarantees (the “Guarantee”) to the Holders and not as a surety, with each other Guarantor, to the full Trustee the due and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations of the Issuers principal of and interest on each series of Securities for which such Guarantor has executed a Notation of Guarantee with respect to such series and all other amounts due and payable under this Indenture and the Notes Documents (including Securities of such series by the Issuer, when and as such principal and interest thatshall become due and payable, but whether at the Stated Maturity or by declaration of acceleration, call for the filing of a petition in any bankruptcy redemption or other insolvency proceeding with respect otherwise, according to the Issuersterms of such Securities and this Indenture, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) subject to the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, limitations set forth in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed ObligationsSection 1403.
(d) Except Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Guarantors will be jointly and severally obligated to pay the same immediately. Each of the Guarantors hereby agrees with respect to the Securities of any series that its obligations with regards to the Guarantee shall be as set forth in Section 10.2 principal and Article VIIInot merely as surety that its obligations hereunder shall be full, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Securities, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason Guarantee (other than payment of including the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure Guarantee of any Holder to assert any claim other Guarantor) or demand or to enforce any right or remedy against the Issuers or any other Person under this Indenture, the Notes absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer or any Guarantor, or any action to enforce the same or any other agreement circumstances which might otherwise constitute a legal or otherwise; (ii) any extension equitable discharge or renewal of any thereof; (iii) any rescission, waiver, amendment or modification defense of any of the Guarantors. Each Guarantor hereby agrees that in the event of a default in payment of the principal of or interest on the Securities entitled to the Guarantee of such Guarantor, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 507, by the Holders, on the terms or provisions of and conditions set forth in this Indenture, directly against such Guarantor to enforce the Notes, Guarantee without first proceeding against the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement Issuer or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Issuer or any of the Guarantors, and all demands whatsoever and (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred and that the benefit of its Subsidiary obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIIIwithout notice to it. Each Subsidiary Guarantor further agrees that its Subsidiary if at any time all or any part of any payment theretofore applied by any person to the Guarantee herein will is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Issuer or any of the Guarantors, the Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the 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, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwiseas though such application had not been made.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Each Guarantor by virtue hereof, upon the failure of the Issuers shall be subrogated to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf all rights of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on Trustee against the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration Issuer in respect of any amounts paid by such Guarantor pursuant to the Guaranteed Obligations guaranteed by provisions of this Indenture; provided, however, that such Guarantor shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Securities entitled to the Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether Guarantor and the Guarantee shall have been paid in full or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guaranteedischarged.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 2 contracts
Sources: Indenture (Sovran Acquisition LTD Partnership), Indenture (Sovran Acquisition LTD Partnership)
Guarantees. The Borrower will not and will not permit any Subsidiary to pledge its credit or property in any manner for the payment or other performance of Indebtedness, contract or other obligation of another (including, without limitation, the Indebtedness of the Parent under the Senior Notes), whether as guarantor (whether of payment or of collection), surety, co-maker, endorser or by agreeing conditionally or otherwise to make any purchase, loan or investment in order thereby to enable another to prevent or correct a default of any kind, or otherwise, except for:
(a) Subject to the provisions endorsements of this Article X, each Subsidiary Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with each other Guarantor, the full and punctual payment when due, whether at Stated Maturity, by acceleration negotiable instruments for deposit or otherwise, all Obligations of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy collection or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest similar transactions in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment normal course of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.business;
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation toany guarantee set forth on Schedule 9.22 as of March 22, demand of, payment from and protest to the Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.2004;
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes any indemnity or guarantee of a Guarantee of payment when due (and not surety bond for the performance by a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment customer of the Guaranteed Obligations.Borrower or any Subsidiary of such customer’s obligations under a land development contract;
(d) Except as set forth in Section 10.2 and Article VIII, any unsecured guarantee by the obligations Borrower or any of each its Subsidiaries of the equity investment or performance of a Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge Indebtedness of such Guarantor Subsidiary incurred for borrowed money) in connection with a real estate project solely in favor of a partner or a member, or a partnership or limited liability company in which such Subsidiary is a general partner or a member, as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all applicable, when the Guaranteed Obligations Borrower or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstatedSubsidiary, as the case may be, if at deems it to be in its best interest not to be a partner, a member or have a direct interest in the partnership or the limited liability company, as applicable;
(e) any time payment, guarantee or indemnity by the Borrower or any part thereofof its Subsidiaries for fraud, of principal ofmisappropriation, premiummisapplication or environmental problems, if anyas are usual and customary in commercial mortgage loan transactions entered into by the Borrower and/or its Subsidiaries, provided, that such a guarantee or interest on indemnity may be given by the Borrower or a Subsidiary, but not both (unless such Subsidiary is also the borrower in the particular commercial mortgage loan transaction), in connection with any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.particular commercial mortgage loan transaction;
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand guarantee by the Trustee, forthwith pay, or cause to be paid, in cash, to Borrower of an unsecured hedge agreement entered into by a Subsidiary and with a maturity date of not more than twelve (12) months following the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount date of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).hedge agreement; and
(g) Each subject to the limitations set forth in Section 8.04(c), any guarantee entered into by the Borrower or a Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided Borrower in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing connection with a Hedge Agreement permitted under such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary GuaranteeSection 8.04(c).
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 2 contracts
Sources: Credit Agreement (Forest City Enterprises Inc), Credit Agreement (Forest City Enterprises Inc)
Guarantees. (a) Subject Each Guarantor hereby fully and, subject to the provisions of this Article Xlimitations on effectiveness and enforceability set forth in Section 10.04, each Subsidiary Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a first priority (subject to Permitted Collateral Liens), senior secured, joint and several basis, as guarantor in each case to each Holder and not as a surety, with to the Trustee and its successors and assigns on behalf of each other GuarantorHolder, the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, interest, if any, and Additional Amounts, if any, on, and all other monetary obligations of the Issuer under this Indenture and the Notes (including obligations to the Trustee and the Security Agent and the obligations to pay Additional Amounts, if any) with respect to each Note authenticated and delivered by the Trustee or interest on its agent pursuant to and in accordance with this Indenture, in accordance with the Notes, expenses, indemnification or otherwise terms of this Indenture (all such obligations guaranteed by such Subsidiary Guarantors the foregoing being herein hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) The Guarantors further agree that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, the Guarantors and that it the Guarantors will remain bound under this Article X Ten notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation. All payments under each Guarantee will be made in Sterling.
(b) Each Subsidiary Guarantor waives (The Guarantors hereby agree that their obligations hereunder shall be as if they were each principal debtor and not merely surety, unaffected by, and irrespective of, any invalidity, irregularity or unenforceability of any Note or this Indenture, any failure to enforce the provisions of any Note or this Indenture, any waiver, modification or indulgence granted to the extent lawful) presentation toIssuer with respect thereto by the Holders or the Trustee, or any other circumstance which may otherwise constitute a legal or an equitable discharge of a surety or guarantor (except payment in full); provided, that notwithstanding the foregoing, no such waiver, modification, indulgence or circumstance shall without the written consent of the Guarantors increase the principal amount of a Note or the interest rate thereon or change the currency of payment with respect to any Note, or alter the Stated Maturity thereof. The Guarantors hereby waive diligence, presentment, demand ofof payment, payment from and protest to filing of claims with a court in the Issuers event of any merger or bankruptcy of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives Issuer, any right to require that the Trustee pursue or exhaust its legal or equitable remedies against the Issuer prior to exercising its rights under a Guarantee (including, for the avoidance of doubt, any resort be had by right which a Guarantor may have to require the seizure and sale of the assets of the Issuer to satisfy the outstanding principal of, interest on or any Holder other amount payable under each Note prior to recourse against such Guarantor or its assets), protest or notice with respect to any security held for payment of Note or the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 Debt evidenced thereby and Article VIIIall demands whatsoever, the obligations of and each Subsidiary Guarantor hereunder covenant that their Guarantee will not be subject discharged with respect to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or Note except by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations principal thereof and interest thereon or such Subsidiary Guarantor is released from its Subsidiary Guarantee as otherwise provided in compliance with this Indenture, including Section 4.1, Section 10.2 and Article VIII10.04. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if If at any time payment, or any part thereof, payment of principal of, premium, if any, interest, if any, or interest Additional Amounts, if any, on any of the Guaranteed Obligations such Note is rescinded or must be otherwise be restored by any Holder or returned upon the insolvency, bankruptcy or reorganization of the Issuers Issuer, the Guarantors’ obligations hereunder with respect to such payment shall be reinstated as of the date of such rescission, restoration or otherwisereturns as though such payment had become due but had not been made at such times.
(fc) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor The Guarantors also agrees agree to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee Trustee, the Security Agent or the Holders any Holder in enforcing any rights under this GuaranteeSection 10.01.
(id) No Issuers or Each Guarantee of a Guarantor hereunder is on a parity with such Guarantor’s guarantee of the Subsidiary Guarantors will be required to make a notation on Super Senior Notes, as provided in the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any GuaranteeIntercreditor Agreement.
Appears in 2 contracts
Sources: Indenture (T F Bell Holdings LTD), Indenture (Portishead Insurance Management LTD)
Guarantees. (a) Subject to the provisions of this Article X10, each Subsidiary Guarantor hereby jointly and severallyseverally with each other Guarantor, irrevocably, fully irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety on a senior basis, as guarantor to each Holder, the Trustee, the Collateral Agent and not as a surety, with each other Guarantor, their respective successors and assigns (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration acceleration, by redemption or otherwise, of all Obligations obligations of the Issuers Issuer under this Indenture (including obligations to the Trustee) and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the TrusteeSecurities, whether for payment of principal of, or premium, if any, or interest on on, the NotesSecurities and all other monetary obligations of the Issuer under this Indenture and the Securities, and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Issuer, whether for fees, expenses, indemnification or otherwise under this Indenture and the Securities (all such obligations guaranteed by such Subsidiary Guarantors the foregoing being herein hereinafter collectively called the “Guaranteed Obligations”). .
(b) Each Subsidiary Guarantor further agrees that (to the extent lawfulpermitted by law) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it will each such Guarantor shall remain bound under this Article X 10 notwithstanding any extension or renewal of any Subsidiary Guaranteed Obligation. The Guaranteed Obligations of a Guarantor Obligationwill be secured by security interests (subject to Permitted Liens) in the Notes Collateral owned by such Guarantor to the extent provided for in the Security Documents and as required pursuant to Sections 4.11 and 4.13.
(bc) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuers Issuer of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes Securities or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (i) the failure of any Holder, the Trustee or the Collateral Agent to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Securities, any Security Document, or any other agreement or otherwise; (ii) any extension or renewal of this Indenture, the Securities, any Security Document or any other agreement; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Securities, any Security Document or any other agreement; (iv) the release of any security held by any Holder, the Trustee or the Collateral Agent for the Guaranteed Obligations or any Guarantor; (v) the failure of any Holder, the Trustee or the Collateral Agent to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (vi) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
(cd) Each Subsidiary Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Guarantors, such that such Guarantor’s obligations would be less than the full amount claimed. Each Guarantor hereby waives any right to which it may be entitled to have the assets of the Issuer or any other Guarantor first be used and depleted as payment of the Issuer’s or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder. Each Guarantor hereby waives any right to which it may be entitled to require that the Issuer be sued prior to an action being initiated against such Guarantor.
(e) Each Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee guarantee of collection) and waives any right to require that any resort be had by any Holder Holder, the Trustee or the Collateral Agent to any security held for payment of the Guaranteed Obligations.
(df) Except as expressly set forth in Section 10.2 Sections 8.01 and Article VIII10.02, the obligations of each Subsidiary Guarantor hereunder will shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and will shall not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will shall not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder Holder, the Trustee or the Collateral Agent to assert any claim or demand or to enforce any right or remedy against the Issuers or any other Person under this Indenture, the Notes Securities, any Security Document or any other agreement or otherwise; (ii) agreement, by any extension or renewal of any thereof; (iii) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenturethereof, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; obligations, or (viii) by any other act or thing or omission or delay to do any other act or thing which that may or might in any manner or to any extent vary the risk of any Subsidiary Guarantor or would otherwise operate as a discharge of such any Guarantor as a matter of law or equity.
(eg) Each Subsidiary Except as expressly set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Subsidiary Guarantee herein will shall remain in full force and effect until payment in full of all the its Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee Obligations. Except as expressly set forth in compliance with Section 4.1Sections 8.01 and 10.02, Section 10.2 and Article VIII. Each Subsidiary each Guarantor further agrees that its Subsidiary Guarantee herein will 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, premium, if any, of or interest on any of the Guaranteed Obligations Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuers Issuer or otherwise.
(fh) In furtherance of the foregoing and not in limitation of any other right which that any Holder Holder, the Trustee or the Collateral Agent has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers Issuer to pay the principal of or interest on any of the Guaranteed Obligations Obligation when and as the same will shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and willshall, upon receipt of written demand by the TrusteeTrustee in accordance with this Indenture, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or the Trustee on behalf of the Holders Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations then due and owing and Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after iii) all other monetary obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating Issuer then due to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed Holders, the Trustee and the Collateral Agent in such proceeding)respect of the Guaranteed Obligations.
(gi) Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between such Subsidiary Guarantorit, on the one hand, and the Holders, the Trustee and the Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee hereby may be accelerated as provided in this Indenture Article 6 for the purposes of its Subsidiary any Guarantee in this Guaranteeherein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee hereby, and (ii) in the event of any such declaration of acceleration of such Guaranteed ObligationsObligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) will shall forthwith become due and payable by the such Guarantor for the purposes of this Subsidiary GuaranteeSection 10.01.
(hj) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable and documented attorneys’ feesfees and expenses) incurred by the Trustee Trustee, the Collateral Agent or the Holders any Holder in enforcing any rights under this GuaranteeSection 10.01.
(ik) No Issuers Each Guarantor shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity purpose of any Guaranteethis Indenture.
Appears in 2 contracts
Sources: Indenture (Egalet Us Inc.), Indenture (Egalet Corp)
Guarantees. 21.1 The US Guarantor hereby acknowledges having full and perfect knowledge of all its obligations under this agreement, notably their nature and scope, and hereby irrevocably guarantees to the Seller the fulfilment of all of the Purchaser’s obligations under this agreement should the Purchaser not fulfil them when due (“caution”). The Parties agree that the Seller shall have the right to make a claim to the US Guarantor only after a notice sent by the Seller to the Purchaser to comply with the agreement remains ineffective for fifteen (15) days (“mise en demeure restée sans effet”) with copy notified (by way of notice) to the US Guarantor sent on the same day. Consequently, the Seller shall then be entitled to initiate any legal or judicial action against the US Guarantor and the Purchaser provided that the summons/claim specifically requests and the judgment/arbitration award sentences the US Guarantor to execute the decision/award to the extent that it has not been enforced against the debtor within thirty (30) Business Days after the service of the summons to pay (“à défaut par le débiteur principal d’exécuter la decision dans ▇▇▇ ▇▇▇ jours suivant la signification d’un commandement de payer”). For the avoidance of doubt the US Guarantor will not be entitled to further claim the benefit of discussion (“bénéfice de discussion”) before the court.
21.2 The French Guarantor hereby acknowledges having full and perfect knowledge of all its obligations under this agreement, notably of all the obligations set out in clauses 12 (Protective Covenants), schedule 3 (Warranted Statements) and schedule 4 (Limitations on Claims), their nature (nature) and scope (l“étendue). He hereby irrevocably guarantees to the Purchaser the fulfilment of all of the Seller’s obligations under this agreement should the Seller not fulfil them when due (“caution”). The Parties agree that the Purchaser shall have the right to make a claim to the French Guarantor only after a notice sent by the Purchaser to the Seller to comply with the agreement remains ineffective for fifteen (15) days (“mise en demeure restée sans effet”) with copy notified (by way of notice) to the US Guarantor sent on the same day. and Consequently, the Purchaser shall then be entitled to initiate any legal or judicial action against the French Guarantor and the Seller provided that the summons / claim specifically requests and the judgment/arbitration award sentences the French Guarantor to execute the decision/award to the extent that it has not been enforced against the debtor within thirty (30) Business Days after the service of the summons to pay (“à défaut par le débiteur principal d’exécuter la decision dans ▇▇▇ ▇▇▇ jours suivant la signification d’un commandement de payer”). For the avoidance of doubt the French Guarantor will not be entitled to any further claim the benefit of discussion (“bénéfice de discussion”) before the court.
21.3 Any notice sent under clauses 21.1 and 21.2 above shall be deemed to be delivered in accordance with provisions of clause 15. The obligations of the US Guarantor and the French Guarantor under this clause 21 shall survive termination of this agreement (a) Subject as to any obligations of the Seller or the Purchaser (as relevant) which survive termination of this agreement, and (b) as to any obligations of the Seller or the Purchaser (as relevant) which remained unsatisfied as of the termination of this agreement.
21.4 The US Guarantor hereby represents and warrants to the provisions of Seller that:
(a) the US Guarantor has the power to execute this Article X, each Subsidiary Guarantor hereby jointly agreement and severally, irrevocably, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with each other Guarantor, the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such validly perform its obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.hereunder;
(b) Each Subsidiary the US Guarantor waives (to is a corporation duly organized and validly existing under the extent lawful) presentation to, demand of, payment from and protest to the Issuers of any laws of the Guaranteed Obligations and also waives (to the extent lawful) notice State of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice Delaware, United States of any default under the Notes or the Guaranteed Obligations.America;
(c) Each Subsidiary the execution, delivery and performance by the US Guarantor further agrees that of its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers or any other Person under this Indenture, the Notes agreement do not violate or any other agreement or otherwise; (ii) any extension or renewal of any thereof; (iii) any rescission, waiver, amendment or modification of conflict with any of the terms or provisions of this Indenture, the Notes, certificate of incorporation or by-laws of the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; US Guarantor;
(ivd) the release execution, delivery and performance of any security held this agreement and the other documents contemplated hereby are within the corporate power and authority of the US Guarantor, have been duly authorized by any Holder all necessary corporate action on the part of the US Guarantor and constitute a valid and binding agreements for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy US Guarantor, enforceable against any other Guarantor; (vi) any change it in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.accordance with its terms;
(e) Each Subsidiary there is no claim, action, lawsuit, arbitration, judicial or administrative proceeding pending or, to the knowledge of the US Guarantor, threatened against the US Guarantor, which questions the valid execution, delivery or performance by the US Guarantor agrees that of its Subsidiary Guarantee herein will remain in full force obligations under this agreement or any of the other documents referred to herein, or the consummation by the US Guarantor of the transaction contemplated hereby;
(f) the US Guarantor has filed or furnished, as applicable, all required registration statements, prospectuses, reports, schedules, forms, statements and effect until payment in full of other documents (including exhibits and all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue other information incorporated by reference) required to be effective filed or be reinstatedfurnished, as applicable, by it with the US Securities and Exchange Commission (the SEC) since December 1, 2007. All such required registration statements, prospectuses, reports, schedules, forms, statements and other documents (including those that US Guarantor may file subsequent to the date hereof until the Completion) are referred to herein as the SEC Reports. As of their respective dates, the SEC Reports (i) were prepared in accordance with and complied in all material respects with the requirements of the US Securities Act of 1933, as amended, or the US Securities Exchange Act of 1934, as amended (the Exchange Act), as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any and the rules and regulations of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereofSEC thereunder applicable to such SEC Reports, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing did not at the time they were filed (but only or if amended or superseded by a filing prior to the extent date of this Agreement then on the date of such filing) contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not prohibited by law) (including interest accruing after misleading. None of the filing of US Guarantor’s subsidiaries is required to file any petition in bankruptcy forms, reports or other documents with the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).SEC;
(g) Each Subsidiary the financial statements of the US Guarantor further agrees thatincluded in the SEC Reports, as between such Subsidiary Guarantorof their respective dates, on the one hand, comply as to form in all material respects with applicable accounting requirements and the Holders, on the other hand, (i) the maturity published rules and regulations of the Guaranteed Obligations guaranteed SEC with respect thereto, have been prepared in accordance with United States generally accepted accounting principles (US GAAP) (except, in the case of unaudited statements, as permitted by this Guarantee Form 10-Q of the SEC) applied on a consistent basis throughout the periods indicated (except as may be accelerated indicated in the notes thereto) and fairly present the consolidated financial position of the US Guarantor and its consolidated subsidiaries as provided in this Indenture of the dates thereof and the consolidated results of their operations and cash flows for the purposes of its Subsidiary Guarantee in this Guaranteeperiods then ended (subject, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event case of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.unaudited statements to normal year-end adjustments);
(h) Each Subsidiary the US Guarantor also agrees has no material liabilities of the type required by US GAAP to pay any and all reasonable costs and expenses be reported in a balance sheet included in a Quarterly Report on Form 10-Q or Annual Report on Form 10-K other than (i) those required to be set forth or adequately provided for in the balance sheet included in the US Guarantor’s most recently filed Quarterly Report on Form 10-Q (including attorneys’ feesthe notes thereto, the “Balance Sheet”), or (ii) those incurred by in the Trustee or ordinary course of business since the Holders in enforcing any rights under this Guarantee.date of the Balance Sheet, consistent with past practices;
(i) No Issuers Except as disclosed in the SEC Reports, since the date of the most recent unaudited financial statements included in the SEC Reports and through the date of this agreement, there has not been (i) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the US Guarantor’s capital stock, (ii) any amendment of any provision of the certificate of incorporation or bylaws of, or of any material term of any outstanding security issued by, the US Guarantor, (iii) any material change in any method of accounting or accounting practice by the US Guarantor except for any such change required by a change in US GAAP, or (iv) any split, combination or reclassification of any of its capital stock or any issuance or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity authorization of any Guaranteeissuance of any other securities in respect of, in lieu of, or in substitution for shares of its capital stock.
21.5 The US Guarantor covenants and agrees that it shall not cancel the trading of its common stock on AIM prior to December 31, 2008.
21.6 The US Guarantor shall indemnify the Seller against any Losses suffered by the Seller resulting from any of the US Guarantor’s warranties being untrue or inaccurate.
Appears in 2 contracts
Sources: Sale and Purchase Agreement (Research Pharmaceutical Services, Inc.), Sale and Purchase Agreement (Research Pharmaceutical Services, Inc.)
Guarantees. (a) Subject to the provisions of this Article X, each Subsidiary Each Guarantor hereby jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety on a senior basis, as guarantor to each Holder and not as a surety, with each other Guarantor, to the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration acceleration, by redemption or otherwise, of all Obligations obligations of the Issuers Issuer under this Indenture (including obligations to the Trustee) and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the TrusteeNotes, whether for payment of principal of, premium, if any, or interest on in respect of the NotesNotes and all other monetary obligations of the Issuer under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Issuer whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes (all such obligations guaranteed by such Subsidiary Guarantors the foregoing being herein hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it will each such Guarantor shall remain bound under this Article X 10 notwithstanding any extension or renewal of any Subsidiary Guarantor Guaranteed Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuers Issuer of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the . The obligations of each Subsidiary Guarantor hereunder will shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise 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 the Issuers Issuer or any other Person under this Indenture, the Notes Notes, any Security Document, or any other agreement or otherwise; (ii) any extension or renewal of this Indenture, the Notes, any thereofSecurity Document or any other agreement; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement any Security Document or any other Notes Documentagreement; (iv) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of themGuarantor; (v) the failure of any Holder or Trustee to exercise any right or remedy against any other Guarantorguarantor of the Guaranteed Obligations; or (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated except as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary GuaranteeSection 10.02(b).
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 2 contracts
Sources: Indenture (Affinion Loyalty Group, Inc.), Indenture (Affinion Loyalty Group, Inc.)
Guarantees. (a) Subject to the provisions of this Article X, each of the Subsidiary Guarantor hereby Guarantors hereby, jointly and severally, irrevocablyunconditionally guarantees to each Holder of a Note and to the Trustee and its successors and assigns, fully irrespective of the validity and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with each other Guarantorenforceability of this Indenture, the full and punctual payment when due, whether at Stated Maturity, by acceleration Notes or otherwise, all Obligations the obligations of the Issuers under this Indenture and Company hereunder or thereunder, that: (a) the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or and interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may Notes will be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain promptly paid in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each and interest on the overdue principal of, premium, if any, and interest on the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in the case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Subsidiary Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Subsidiary Guarantor hereby promises waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and willall demands whatsoever and covenant that this Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture or pursuant to Section 10.04. If any Holder or the Trustee is required by any court or otherwise to return to the Company, upon receipt of written demand the Subsidiary Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Subsidiary Guarantors, any amount paid by the Trustee, forthwith pay, or cause to be paid, in cash, either to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only Holder, this Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not prohibited by law) (including interest accruing after be entitled to any right of subrogation in relation to the filing Holders in respect of any petition obligations guaranteed hereby until payment in bankruptcy or the commencement full of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) all obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantorthe Guarantors, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (ix) the maturity of the Guaranteed Obligations obligations guaranteed by this Guarantee hereby may be accelerated as provided in this Indenture Article VI for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations obligations guaranteed by this Guarantee hereby, and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligationsobligations as provided in Article VI, such Guaranteed Obligations obligations (whether or not due and payable) will shall forthwith become due and payable by the Guarantor Subsidiary Guarantors for the purposes purpose of this Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 2 contracts
Sources: Indenture (E Trade Financial Corp), Indenture (E Trade Financial Corp)
Guarantees. (a) Subject to the provisions of this Article X, each Subsidiary Each Guarantor hereby jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, on a senior basis, as guarantor guarantees to each Holder and not as a surety, with each other Guarantor, to the Trustee and its successors and assigns (1) the full and punctual payment when due, whether at Stated Maturity, by acceleration acceleration, by redemption or otherwise, of all Obligations obligations of the Issuers Issuer under this Indenture (including obligations to the Trustee) and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the TrusteeNotes, whether for payment of principal of, interest or premium, if any, or interest on the NotesNotes and all other monetary obligations of the Issuer under this Indenture and the Notes and (2) the full and punctual performance within applicable grace periods of all other obligations of the Issuer whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes (all such obligations guaranteed by such Subsidiary Guarantors the foregoing being herein hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it will each such Guarantor shall remain bound under this Article X XI notwithstanding any extension or renewal of any Subsidiary Guarantor Guaranteed Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuers Issuer of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (1) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (2) any extension or renewal of any thereof; (3) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (4) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (5) the failure of any Holder or Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (6) any change in the ownership of such Guarantor, except as provided in Sections 11.02(b) and (c).
(c) Each Subsidiary Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Guarantors, such that such Guarantor’s obligations would be less than the full amount claimed. Each Guarantor hereby waives any right to which it may be entitled to have the assets of the Issuer first be used and depleted as payment of the Issuer’s or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder. Each Guarantor hereby waives any right to which it may be entitled to require that the Issuer be sued prior to an action being initiated against such Guarantor.
(d) Each Guarantor further agrees that its Subsidiary Note Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee 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.
(de) Except as expressly set forth in Section 10.2 Sections 8.02, 11.02 and Article VIII11.08, the obligations of each Subsidiary Guarantor hereunder will shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and will shall not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will shall not (to the extent lawful) be discharged or impaired or otherwise 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 the Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (ii) agreement, by any extension or renewal of any thereof; (iii) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenturethereof, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; obligations, or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such any Guarantor as a matter of law or equity.
(ef) Each Subsidiary Except as expressly set forth in Sections 8.02, 11.02 and 11.08, each Guarantor agrees that its Subsidiary Note Guarantee herein will shall remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIIIObligations. Each Subsidiary Guarantor further agrees that its Subsidiary Note Guarantee herein will 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, premium, if any, of or interest on any of the Guaranteed Obligations Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuers Issuer or otherwise.
(fg) 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 any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers Issuer to pay the principal of or interest on any of the Guaranteed Obligations Obligation when and as the same will shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and willshall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i1) the unpaid principal amount of such Guaranteed Obligations then due and owing and Obligations, (ii2) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) and (including interest accruing after 3) all other monetary obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating Issuer to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)Holders and the Trustee.
(gh) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantorit, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (i1) the maturity of the Guaranteed Obligations guaranteed by this Guarantee hereby may be accelerated as provided in this Indenture Article VI for the purposes of its Subsidiary any Note Guarantee in this Guaranteeherein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee hereby, and (ii2) in the event of any such declaration of acceleration of such Guaranteed ObligationsObligations as provided in Article VI, such Guaranteed Obligations (whether or not due and payable) will shall forthwith become due and payable by the such Guarantor for the purposes of Section this Subsidiary Guarantee11.01.
(hi) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ feesfees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this GuaranteeSection 11.01.
(ij) No Issuers Upon request of the Trustee, each Guarantor shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity purpose of any Guaranteethis Indenture.
Appears in 2 contracts
Sources: Indenture (Encore Capital Group Inc), Indenture (Encore Capital Group Inc)
Guarantees. (a) Subject to (i) Each of the provisions of this Article XSubsidiary Guarantors hereby, each Subsidiary Guarantor hereby jointly and severally, unconditionally and irrevocably, fully and unconditionally guaranteesguarantees to the Administrative Agent, on a senior basis, as guarantor and not as a surety, with each other Guarantor, for the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations ratable benefit of the Issuers under this Indenture Secured Parties the prompt and complete payment and performance of the Notes Documents Obligations and (including interest thatii) the Parent Guarantor hereby unconditionally and irrevocably, but guarantees to the Administrative Agent, for the filing ratable benefit of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against Secured Parties the Issuers for such interest in prompt and complete payment and performance of the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed European Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Anything herein or in any other Loan Document to the contrary notwithstanding, the maximum liability of each Subsidiary Guarantor waives (hereunder and under the other Loan Documents in respect of the Obligations, shall in no event exceed the amount which can be guaranteed by such Guarantor under applicable federal and state laws relating to the extent lawful) presentation to, demand of, payment from and protest insolvency of debtors (after giving effect to the Issuers right of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligationscontribution established in Section 2.2).
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (the Obligations, may at any time and not a Guarantee of collection) and waives any right from time to require that any resort be had by any Holder to any security held for payment time exceed the amount of the Guaranteed Obligationsliability of such Guarantor hereunder without impairing the guarantees contained in this Section 2 or affecting the rights and remedies of the Administrative Agent or any other Secured Party hereunder.
(d) Except as set forth Each Guarantor’s guarantees contained in this Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will 2 shall remain in full force and effect until all the Obligations ( other than contingent indemnification and contingent expense reimbursement obligations, Obligations in respect of Secured Hedge Agreements and Cash Management Obligations) of each Guarantor under the guarantees contained in this Section 2 shall have been satisfied by payment in full full, the Commitments have been terminated and either no Letter of all Credit shall be outstanding or each outstanding Letter of Credit has been cash collateralized so that it is fully secured to the Guaranteed reasonable satisfaction of the Administrative Agent, notwithstanding that from time to time during the term of the Credit Agreement any Loan Party may be free from any of the Obligations.
(e) Except as provided in Section 4.14, (i) no payment made by any of the Subsidiary Guarantors, any other guarantor or any other Person or received or collected by the Administrative Agent or any Secured Party from any of the Subsidiary Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of any Subsidiary Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by such Subsidiary Guarantor is released in respect of the Obligations or any payment received or collected from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each such Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any in respect of the Guaranteed Obligations), remain liable for the Obligations up to the maximum liability of such Subsidiary Guarantor hereunder until the Obligations are paid in full, the Commitments have been terminated, and either no Letters of Credit shall be outstanding or each outstanding Letter of Credit has been cash collateralized so that it is rescinded or must otherwise be restored by any Holder upon fully secured to the bankruptcy or reorganization reasonable satisfaction of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing Administrative Agent and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to no payment made by the extent not prohibited Parent Guarantor, any other guarantor or any other Person or received or collected by law) (including interest accruing after the filing Administrative Agent or any Secured Party from the Parent Guarantor, any other guarantor or any other Person by virtue of any petition in bankruptcy action or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether set-off or not a claim for post-filing appropriation or post-petition interest is allowed application at any time or from time to time in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity reduction of or in payment of the Guaranteed European Obligations guaranteed by this Guarantee may shall be accelerated as provided in this Indenture for deemed to modify, reduce, release or otherwise affect the purposes of its Subsidiary Guarantee in this Guaranteeliability the Parent Guarantor hereunder which shall, notwithstanding any stay, injunction or such payment (other prohibition preventing such acceleration than any payment made by the Parent Guarantor in respect of the Guaranteed European Obligations guaranteed by this Guarantee and (ii) or any payment received or collected from the Parent Guarantor in respect of the event of any such declaration of acceleration of such Guaranteed European Obligations), such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor remain liable for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition European Obligations up to the validity maximum liability of any Guaranteethe Parent Guarantor hereunder until the European Obligations are paid in full.
Appears in 2 contracts
Sources: Guarantee Agreement (Constellation Brands, Inc.), Restatement Agreement (Constellation Brands, Inc.)
Guarantees. (a) Subject to the provisions of this Article X, each Subsidiary Guarantor hereby Guarantor, jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, guarantees to each Holder of Notes and to the Trustee on a senior basis, as guarantor and not as a surety, with each other Guarantor, behalf of the full Holders:
(i) the due and punctual payment in full of principal of and interest on the Notes when due, whether at Stated Maturitystated maturity, by acceleration upon acceleration, redemption or otherwise;
(ii) the due and punctual payment in full of interest on the overdue principal of and, all Obligations of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuersextent permitted by law, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes; and
(iii) the due and punctual payment of all other Obligations of the Company and the other Guarantors to the Holders or the Trustee hereunder or under the Notes, including, without limitation, the payment of fees, expenses, indemnification or otherwise (all other amounts. In case of the failure of the Company punctually to make any such obligations guaranteed principal or interest payment or the failure of the Company or any other Guarantor to pay any such other Obligation, each Guarantor agrees to cause any such payment to be made punctually when due, whether at stated maturity, upon acceleration, redemption or otherwise, and as if such payment were made by the Company and to perform any such Subsidiary Guarantors being herein called other Obligation of the “Guaranteed Obligations”)Company immediately. Each Subsidiary Guarantor further agrees to pay any and all expenses (to including reasonable counsel fees and expenses) incurred by the extent lawful) that Trustee or the Guaranteed Obligations may be extended or renewed, Holders in whole or in part, without notice or further assent from it, and that it will remain bound enforcing any rights under these Guarantees. The Guarantees under this Article X notwithstanding any extension or renewal are guarantees of any Subsidiary Guarantor Obligationpayment and not of collection.
(b) Each Subsidiary Guarantor of the Company and the Guarantors waives (diligence, presentment, demand of payment, filing of claims with a court in the event of merger, insolvency or bankruptcy of the Company or any other Guarantor, any right to require a proceeding first against the Company or any other Guarantor, protest or notice with respect to the extent lawful) presentation toNotes and all demands whatsoever, demand of, payment from and protest to the Issuers of any covenants that these Guarantees shall not be discharged except by complete performance of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under contained in the Notes and in this Indenture, or the Guaranteed Obligationsas otherwise specifically provided therein or herein.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due waives and relinquishes:
(and not a Guarantee of collectioni) and waives any right to require that the Trustee, the Holders or the Company (each, a “Benefited Party”) to proceed against the Company, the Subsidiaries of the Company or any resort be had by any Holder other Person or to proceed against or exhaust any security held for payment by a Benefited Party at any time or to pursue any other remedy in any secured party’s power before proceeding against the Guarantors;
(ii) any defense that may arise by reason of the Guaranteed Obligationsincapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons;
(iii) demand, protest and notice of any kind (except as expressly required by this Indenture), including, but not limited to, notice of the existence, creation or incurrence of any new or additional indebtedness or obligation or of any action or non-action on the part of the Guarantors, the Company, the Subsidiaries of the Company, any Benefited Party, any creditor of the Guarantors, the Company or the Subsidiaries of the Company or on the part of any other Person whomsoever in connection with any obligations the performance of which are hereby guaranteed;
(iv) any defense based upon an election of remedies by a Benefited Party, including but not limited to an election to proceed against the Guarantors for reimbursement;
(v) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal;
(vi) any defense arising because of a Benefited Party’s election, in any proceeding instituted under the Bankruptcy Law, of the application of Section 1111(b)(2) of the Bankruptcy Law; and
(vii) any defense based on any borrowing or grant of a security interest under Section 364 of the Bankruptcy Law.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and Holders and the HoldersTrustee, on the other hand, :
(i) for purposes of the relevant Guarantee, the maturity of the Obligations Guaranteed Obligations guaranteed by this such Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this GuaranteeArticle VI, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and thereby, and
(ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will such Obligations shall forthwith become due and payable by the such Guarantor for the purposes of this Subsidiary such Guarantee.
(he) Each Subsidiary Guarantor also agrees The Guarantees shall continue to pay be effective or shall be reinstated, as the case may be, if at any and all reasonable costs and expenses (including attorneys’ fees) incurred time any payment, or any part thereof, of principal of or interest on any of the Notes is rescinded or must otherwise be returned by the Trustee Holders or the Holders in enforcing Trustee upon the insolvency, bankruptcy or reorganization of the Company or any rights under this Guaranteeof the Guarantors, all as though such payment had not been made.
(if) No Issuers Each Guarantor shall be subrogated to all rights of the Holders against the Company in respect of any amounts paid by such Guarantor pursuant to the provisions of the Guarantees or the Subsidiary Guarantors will be required to make this Indenture; provided, however, that a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will Guarantor shall not be a condition entitled to enforce or to receive any payments until the validity principal of any Guaranteeand interest on all Notes issued hereunder shall have been paid in full.
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Guarantees. (a) Subject to the provisions of this Article X, each Each Subsidiary Guarantor hereby jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, on as a senior basis, as guarantor primary obligor and not merely as a surety, with each other Guarantor, the full due and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, and performance of all of the Guaranteed Obligations of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantor, jointly with the other Subsidiary Guarantors being herein called the “Guaranteed Obligations”)and severally. Each of the Subsidiary Guarantor Guarantors further agrees (to the extent lawful) that the its Guaranteed Obligations may be extended or renewed, in whole or in part, without notice to or further assent from it, and that it will remain bound under this Article X upon its guarantee notwithstanding any extension or renewal of any such Guaranteed Obligation. Each of the Subsidiary Guarantors waives presentment to, demand of payment from and protest to the Company or any Subsidiary Guarantor Obligationof any of its Guaranteed Obligations, and also waives notice of acceptance of its guarantee, notice of protest for nonpayment and all similar formalities.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor Guarantors further agrees that its Subsidiary Guarantee herein guarantee hereunder constitutes a Guarantee guarantee of payment when due (and not a Guarantee of collection) , and waives any right to require that any resort be had by the Trustee or any Holder to any security held for the payment of its Guaranteed Obligations or to any balance of any deposit account or credit on the Guaranteed Obligationsbooks of the Trustee or any Holder in favor of the Company.
(dc) Except as set forth in for termination of a Subsidiary Guarantor’s obligations hereunder or a release of such Subsidiary Guarantor pursuant to Section 10.2 and Article VIII4.06, the obligations of each Subsidiary Guarantor hereunder will shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and will shall not (to the extent lawful) be subject to any defense of setoffor set-off, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations of such Subsidiary Guarantor or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will hereunder shall not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of the Trustee or any Holder to assert any claim or demand or to enforce any right or remedy against under the Issuers or any other Person under this Indenture, provisions of the Notes or any other agreement Indenture or otherwise; (ii) any extension or renewal of any thereof; (iii) any rescission, waiver, amendment or modification of of, or any release from any of the terms or provisions of this Indentureof, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement Indenture or any other Notes Documentagreement, including with respect to any other Subsidiary Guarantor under the Indenture; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (viiiii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed ObligationsObligations of such Subsidiary Guarantor; or (viiiiv) any other act or thing or omission or delay to do any other act or thing which that may or might in any manner or to any extent vary the risk of any such Subsidiary Guarantor or would otherwise operate as a discharge of such Subsidiary Guarantor as a matter of law or equityequity (other than the indefeasible payment in full in cash of all the Guaranteed Obligations of such Guarantor).
(d) To the fullest extent permitted by applicable law, each Subsidiary Guarantor waives any defense based on or arising out of any defense of the Company or any other Subsidiary Guarantor or the unenforceability of the Guaranteed Obligations of such Subsidiary Guarantor or any part thereof from any cause, or the cessation from any cause of the liability of the Company or any other Subsidiary Guarantor, other than the indefeasible payment in full in cash of all the Guaranteed Obligations of such Subsidiary Guarantor. The Trustee may, at its election, compromise or adjust any part of the Guaranteed Obligations, make any other accommodation with the Company or any Subsidiary Guarantor or exercise any other right or remedy available to them against the Company or any Subsidiary Guarantor, in each case without affecting or impairing in any way the liability of any Subsidiary Guarantor hereunder except to the extent the Guaranteed Obligations of such Subsidiary Guarantor have been fully and indefeasibly paid in full in cash. To the fullest extent permitted by applicable law, each Subsidiary Guarantor waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Subsidiary Guarantor against the Company or any other Subsidiary Guarantor, as the case may be.
(e) Each of the Subsidiary Guarantor Guarantors agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will guarantee hereunder 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, premium, if any, or interest on any Guaranteed Obligation of the Guaranteed Obligations such Subsidiary Guarantor is rescinded or must otherwise be restored by any Holder the Trustee upon the bankruptcy or reorganization of the Issuers Company, any other Subsidiary Guarantor or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 2 contracts
Sources: First Supplemental Indenture (Goodyear Tire & Rubber Co /Oh/), First Supplemental Indenture (Goodyear Export Inc.)
Guarantees. (a) Subject The Borrower shall not, and shall procure that none of its Subsidiaries shall, issue or allow to remain outstanding any guarantees or sureties (Bürgschaften) in respect of any liability or obligation of any person save for:
(i) any guarantee or surety (Bürgschaft) under any Guarantee Agreement or with the provisions of this Article X, each Subsidiary Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with each other Guarantor, the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations prior written consent of the Issuers Bank; or
(ii) guarantees or sureties (Bürgschaften) issued by any of its Subsidiaries :
(1) under this Indenture and any negotiable instruments in the Notes Documents ordinary course of trade;
(including interest that, but 2) under or in connection with any performance bond in the ordinary course of trade;
(3) under or in connection with any Permitted Indebtedness (except for the filing DH Convertible Loan Agreement);
(4) which is an Obligor to another Obligor;
(5) under or in connection with any bank guarantee issued for the benefit of a petition contractor in connection with construction work to secure such contractor’s claims (Bauhandwerkersicherung); or
(6) under any bankruptcy guarantee created or other insolvency proceeding subsisting in order to comply with respect Section 8a of the German Altersteilzeitgesetz (AltTZG) or pursuant to Section 7e of the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise German Social Law Act No. 4 (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”Sozialgesetzbuch IV). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees The Borrower shall procure that, as between soon as any of its Subsidiaries becomes a Material Subsidiary (as identified in any accounts delivered to the Bank from time to time pursuant to Paragraph 2 (Information concerning the Borrower) of Schedule I (Information and Visits), that Subsidiary shall promptly notify the Bank and on the Bank’s request enter into a Guarantee Agreement and provide the Bank with the documentary conditions precedent (each in form and substance satisfactory to the Bank) listed in Part B of Schedule F (Guarantor Conditions Precedent) within [*****] Business Days following the date on which such Subsidiary Guarantorqualifies as a Material Subsidiary, on subject to general statutory limitations, financial assistance, capital maintenance, corporate benefit, fraudulent preference, “thin capitalisation” rules, retention of title claims and similar principles may limit the one hand, ability of a Guarantor to provide a guarantee or security or may require that the guarantee be limited by an amount or otherwise provided that the Borrower and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes each of its Subsidiary Guarantee Subsidiaries will ensure to overcome such obstacles and, if applicable, to assist in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guaranteedemonstrating that adequate corporate benefit accrues to each Guarantor.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 2 contracts
Guarantees. (a) Subject Except as otherwise specified in any Ancillary Agreement, on or prior to the provisions of this Article XSeparation Time or as soon as practicable thereafter, each Subsidiary Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, (i) Newco shall (with each other Guarantor, the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations reasonable cooperation of the Issuers under this Indenture and applicable member of the Notes Documents Fox Group) use its reasonable best efforts to novate, assign or replace (including interest thatby inserting Ainge as replacement Guarantor) any Newco Guarantee in order to remove or otherwise have released any member of the Fox Group that is a guarantor of or obligor for any such Newco Guarantee and (ii) Fox shall (with the reasonable cooperation of the applicable member of the Newco Group) use its reasonable best efforts to novate, but for assign or replace (including by inserting Fox as replacement Guarantor) any Fox Guarantee in order to remove or otherwise have released any member of the filing Newco Group or any Direct Sales Entity (or any subsidiary of a petition Direct Sales Entity) that is a guarantor of or obligor for any such Fox Guarantee (in each case, any bankruptcy such novation, assignment, replacement, removal or other insolvency proceeding with respect release, a “Guarantee Release”); provided, however, that no Party shall be obligated to the Issuers, would have accrued on pay any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification consideration (or otherwise incur any Liability or obligation) therefor to any third party from whom any such Guarantee Release is requested (all unless such obligations guaranteed Party is fully reimbursed or otherwise made whole by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”requesting Party). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (On or prior to the Effective Time, to the extent lawfulrequired to obtain a Guarantee Release:
(i) presentation to, demand of, payment from and protest to the Issuers of any Newco Guarantee, Newco will execute a Guarantee Release in the form of the Guaranteed Obligations and also waives (existing Newco Guarantee or such form as is agreed to by the relevant parties to such Newco Guarantee, except to the extent lawfulthat such Newco Guarantee contains representations, covenants or other terms or provisions either (A) notice with which Newco would be reasonably unable to comply or (B) which would be reasonably expected to be breached; and
(ii) of protest for nonpayment. Each Subsidiary Guarantor waives (any Fox Guarantee, Fox will execute a Guarantee Release in the form of the existing Fox Guarantee or such form as is agreed to by the relevant parties to such Fox Guarantee, except to the extent lawfulthat such Fox Guarantee contains representations, covenants or other terms or provisions either (A) notice of any default under the Notes with which Fox would be reasonably unable to comply or the Guaranteed Obligations(B) which would be reasonably expected to be breached.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes Following the Closing, if the Parties were unable to obtain a Guarantee of payment when due (and not a Guarantee of collection) and waives any right Release prior to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIIIClosing, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by Party will: (i) the failure of any Holder continue to assert any claim or demand or use its reasonable best efforts to enforce any right or remedy against the Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwiseobtain a Guarantee Release; (ii) indemnify, defend and hold harmless the other Party and its Affiliates against, and reimburse such Party and its Affiliates for, any extension Losses of such Party and its Affiliates incurred by them because such Party or renewal of its Affiliate is required to make any thereofpayment under any such Fox Guarantee or Newco Guarantee, as applicable; and (iii) agree not to (and to cause members of their respective Groups not to) renew or extend the term of, increase its obligations under, or transfer to a third party, any rescissionloan, waiverguarantee, amendment lease, contract or modification other obligation for which the other Party or member of such Party’s Group is or may be liable, without the prior written consent of such other Party, unless all obligations of such other Party and the other members of such Party’s Group with respect thereto are thereupon terminated by documentation reasonably satisfactory in form and substance to such Party. Each Party’s reasonable best efforts with respect to this Section 6.3 shall not require such Party to take any of the terms or provisions of this Indenture, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement action that would be reasonably expected to expose it or any other Notes Document; (iv) the release member of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or its Group to any extent vary the risk incremental expenses or losses of any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equitybenefits.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 2 contracts
Sources: Separation and Distribution Agreement, Separation and Distribution Agreement (Altra Industrial Motion Corp.)
Guarantees. (a) Subject In the event that any third party requires a Guarantee to be furnished by the provisions of this Article X, each Subsidiary Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with each other GuarantorCompany, the full Company may not and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations no Shareholder may furnish such Guarantee on behalf of the Issuers under this Indenture and Company unless the Notes Documents (including interest that, but for the filing of a petition Shareholders unanimously agree in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) writing that the Guaranteed Obligations it may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligationfurnished.
(b) Each Subsidiary Guarantor waives (If any third party requires a Guarantee to the extent lawful) presentation to, demand of, payment from and protest to the Issuers be furnished by one or more Shareholders in respect of any of the Guaranteed Obligations Company’s obligations and also waives (it is approved by the Shareholders unanimously in writing, then the Guarantee must be furnished by the Shareholders jointly and not severally and their liability will be in accordance with their Pro Rata Portions from time to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligationstime.
(c) Each Subsidiary Guarantor further agrees If a Shareholder becomes bound by any Guarantee in accordance with this clause 8.4 and that its Subsidiary Shareholder is at any time obliged to pay to the creditor in terms of such Guarantee herein constitutes a Guarantee an amount in excess of that Shareholder's liability under the Guarantee, then the other Shareholders (Non-Guaranteeing Shareholders) must indemnify that Shareholder against such excess and must reimburse such Shareholder within 21 (twenty one) days of such Shareholder paying the creditor. The Non-Guaranteeing Shareholders’ liability to reimburse the Shareholder will bear interest from the date of payment when due to the date of reimbursement by the Non-Guaranteeing Shareholders at the Prime Rate plus 2% (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligationstwo percent).
(d) Except If any Shareholder (the Guarantor) binds itself under any Guarantee in a manner inconsistent with this clause 8.4, then the Guarantor will be solely liable under the Guarantee, will have no right to recover any amount from any other Shareholder or the Company and hereby indemnifies the other Shareholders as set forth well as the Company against any liability arising in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment respect of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equityGuarantee.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored If a Shareholder becomes bound by any Holder upon Guarantee for the bankruptcy Company's obligations and that Shareholder (Outgoing Shareholder) subsequently Sells all of its Shares, the Company and the remaining Shareholders must use reasonable endeavours to procure the Outgoing Shareholder's release from the Guarantee as soon as possible after such Sale, provided that they will not be obliged to discharge or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of materially alter any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cashprincipal obligation. The remaining Shareholders must, to the Trustee or extent that they are purchasing the Trustee on behalf Shares of the Holders an amount equal to Outgoing Shareholder, indemnify the sum Outgoing Shareholder against liability under the Guarantee until the Outgoing Shareholder is released. Should the Outgoing Shareholder be selling some of (i) its Shares only, the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity obligations of the Guaranteed Obligations guaranteed by remaining Shareholders in terms of this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration clause (e) will apply only in respect of that portion of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in Outgoing Shareholder’s liability derived from the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary GuaranteeShares being sold.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 2 contracts
Sources: Shareholder Agreements, Shareholder Agreement
Guarantees. On the Issue Date, the Notes will not be guaranteed by any of the Issuer’s Subsidiaries and no Domestic Subsidiary of the Issuer shall be required to Guarantee the Notes unless otherwise required under Section 3.11 hereof.
(a) Subject to the provisions of this Article X, each Subsidiary Guarantor hereby jointly and severally, with any other Guarantor, irrevocably, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, to the extent lawful, and the Trustee, the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration acceleration, by redemption or otherwise, all Obligations of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or and interest on the NotesNotes and all other Obligations of the Issuer under this Indenture and the Notes (including, expenseswithout limitation, indemnification interest accruing after the filing of any petition in bankruptcy, or otherwise the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all such obligations guaranteed by such Subsidiary Guarantors the foregoing being herein hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will shall remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Guarantor Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will shall not (to the extent lawful) be discharged or impaired or otherwise affected by (ia) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (iib) any extension or renewal of any thereof; (iiic) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Documentagreement; (ivd) the release of any security held by any Holder for the Guaranteed Guarantor Obligations or any of them; (ve) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vif) any change in the ownership of the IssuersIssuer; (viig) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Guarantor Obligations; or (viiih) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will shall remain in full force and effect until payment in full of all the Guaranteed Guarantor Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will 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, premium, if any, or interest on any of the Guaranteed Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers Issuer to pay any of the Guaranteed Guarantor Obligations when and as the same will shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and willshall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers Issuer or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed by this Guarantee hereby may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guaranteeherein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed by this Guarantee hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Guarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) will shall forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this GuaranteeSection.
(i) No Issuers or Neither the Subsidiary Issuer nor the Guarantors will shall be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will shall not be a condition to the validity of any Guarantee.
Appears in 2 contracts
Sources: Indenture (PPD, Inc.), Indenture (PPD, Inc.)
Guarantees. If the Borrower or any Guarantor acquires or creates a Wholly Owned Domestic Restricted Subsidiary after the Effective Date that guarantees any Indebtedness of Holdings, the Borrower or any Subsidiary Guarantor, or any Wholly Owned Domestic Restricted Subsidiary becomes a Significant Subsidiary (a) Subject as defined in Regulation S-X under the Securities Act), then such Wholly Owned Domestic Restricted Subsidiary shall become a Guarantor and execute a Guaranty Supplement and shall become a party to the provisions of this Article X, each Subsidiary Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with each other Guarantor, the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Trust Agreement, the MYT Third Lien Notes Pledge Security Agreement and the other Security Documents and comply with all provisions thereof. Holdings shall not permit any of its Restricted Subsidiaries, directly or indirectly, to Guarantee any other Notes Document; (iv) Indebtedness for borrowed money of Holdings, the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any defaultBorrower, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether unless such Restricted Subsidiary is the Borrower or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on or simultaneously executes and delivers to the one hand, and Administrative Agent a Guaranty Supplement in the Holders, on form attached to the other hand, (i) Subsidiaries Guaranty providing for the maturity Guarantee of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect payment of the Guaranteed Obligations guaranteed by this such Restricted Subsidiary, which Guarantee and (ii) in shall be pari passu with or, if such other Indebtedness for borrowed money is subordinated to the event of any Obligations, senior to such declaration of acceleration Subsidiary’s Guarantee of such Guaranteed Obligationsother Indebtedness for borrowed money. Notwithstanding the preceding paragraph, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses Subsidiaries Guaranty (including attorneys’ feesany Guaranty Supplement) incurred shall provide by its terms that it shall be automatically and unconditionally released and discharged under the Trustee or the Holders in enforcing any rights circumstances described under this GuaranteeSection 11.10 hereof.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 2 contracts
Sources: Credit Agreement and Subsidiaries Guaranty (Leap Wireless International Inc), Credit Agreement (Leap Wireless International Inc)
Guarantees. (a) Subject to the provisions of this Article X, each Each Subsidiary Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, irrevocably, fully to each Holder and unconditionally guarantees, on a senior basis, as guarantor to the Trustee and not as a surety, with each other Guarantor, its successors and assigns (a) the full and punctual payment of principal of and interest on the Securities when due, whether at Stated Maturitymaturity, by acceleration acceleration, by redemption, by required repurchase or otherwise, and all Obligations other monetary obligations of the Issuers Company and the Subsidiary Guarantors under this Indenture and the Notes Documents Securities and of the Subsidiary Guarantors under the Security Agreements and (including interest that, but for b) the filing full and punctual performance within applicable grace periods of a petition in any bankruptcy or all other insolvency proceeding with respect to obligations of the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders Company and the TrusteeSubsidiary Guarantors under this Indenture, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise Security Agreements and the Securities (all such obligations guaranteed by such Subsidiary Guarantors the foregoing being herein hereinafter collectively called the “Guaranteed "Obligations”"). Each Subsidiary Guarantor further agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, such Subsidiary Guarantor and that it such Subsidiary Guarantor will remain bound under this Article X 10 notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) . Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers Company of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes Securities or the Guaranteed Obligations.
. The obligations of each Subsidiary Guarantor hereunder shall not be affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Security Agreements, the Securities or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Security Agreements, the Securities or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) subject to Section 10.06, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee 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.
(d) . Except as expressly set forth in Section 10.2 Sections 8.01(b), 10.02 and Article VIII10.06, the obligations of each Subsidiary Guarantor hereunder will shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and will shall not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will shall not (to the extent lawful) be discharged or impaired or otherwise 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 the Issuers or any other Person under this Indenture, the Notes Security Agreements, the Securities or any other agreement or otherwise; (ii) agreement, by any extension or renewal of any thereof; (iii) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenturethereof, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; obligations, or (viii) 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 any such Subsidiary Guarantor or would otherwise operate as a discharge of such Subsidiary Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will 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, premium, if any, of or interest on any of the Guaranteed Obligations Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuers Company or otherwise.
(f) . 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 any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers Company to pay the principal of or interest on any of the Guaranteed Obligations Obligation when and as the same will shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Obligation, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) and (including interest accruing after iii) all other monetary Obligations of the filing of any petition in bankruptcy Company or the commencement of any insolvency, reorganization or like proceeding relating Subsidiary Guarantors to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Holders and the Trustee. Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantorit, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (ix) the maturity of the Guaranteed Obligations guaranteed by this Guarantee hereby may be accelerated as provided in this Indenture Article 6 for the purposes of its such Subsidiary Guarantor's Subsidiary Guarantee in this Guaranteeherein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee hereby, and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligationsobligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) will shall forthwith become due and payable by the such Subsidiary Guarantor for the purposes of this Subsidiary Guarantee.
(h) Section. Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ ' fees) incurred by the Trustee or the Holders any Holder in enforcing any rights under this GuaranteeSection.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 2 contracts
Sources: Indenture (Hallandale Commercial Corp.), Indenture (Up Offshore (Holdings) Ltd.)
Guarantees. (a) Subject to the provisions of this Article X, each Subsidiary Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with each other Guarantor, the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as time periods set forth in Section 10.2 and Article VIII8.17, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment and performance of the Guaranteed Obligations in full)Obligations, including any claim of waiver, release, surrender, alteration or compromiseHedging Liability, and will not (to the extent lawful) Funds Transfer, Deposit Account Liability and Foreign LCs shall at all times be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or guaranteed by reason Holdings and each direct and indirect Domestic Wholly-owned Subsidiary of the invalidityBorrower and, illegality with respect to Hedging Liability or unenforceability Funds Transfer and Deposit Account Liabilities of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers Holdings or any other Person under this IndentureGuarantor permitted to be incurred by Holdings or such other Guarantor hereunder, the Notes or any other agreement or otherwiseBorrower (individually a “Guarantor” and collectively the “Guarantors”) pursuant to Section 12 hereof (individually a “Guarantee” and collectively the “Guarantees”); (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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees provided that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) no Subsidiary shall be required to be a Guarantor hereunder if providing such Guarantee would result in material adverse tax consequences as reasonably determined by the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this GuaranteeBorrower, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or Immaterial Subsidiaries and Unrestricted Subsidiaries shall not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make be a notation Guarantor hereunder, (iii) no Subsidiary that is prohibited by law, regulation or contractual obligation (in the case of any contractual obligation, to the extent (x) existing on the Notes to reflect any Closing Date or, if such Subsidiary was acquired by the Borrower or another Loan Party after the Closing Date, on the date on which such Restricted Subsidiary was acquired and (y) such prohibition was not agreed in contemplation hereof) from providing such Guarantee or any releasethat would require a governmental (including regulatory) consent, termination approval, license or discharge thereof and any authorization in order to provide such notation will not Guarantee shall be required to be a condition Guarantor hereunder, (iv) no CFC Holdco nor any Domestic Subsidiary that is a direct or indirect Subsidiary of a CFC shall be required to be a Guarantor hereunder, (v) no Subsidiary to the validity extent the burden or cost of providing such Guarantee outweighs the benefit to the Lenders afforded thereby, as reasonably determined by the Administrative Agent and the Borrower, shall be required to be a Guarantor hereunder and (vi) the enforcement of the Guarantee of any GuaranteeRestricted Subsidiary that is treated as a disregarded entity for U.S. federal income tax purposes, solely with respect to any of its Subsidiaries that are CFCs, shall be limited to 65% of the Voting Stock (and 100% of the non-Voting Stock) of such CFCs.
Appears in 2 contracts
Sources: Credit Agreement (Dave & Buster's Entertainment, Inc.), Credit Agreement (Dave & Buster's Entertainment, Inc.)
Guarantees. (a) Subject to the provisions of this Article XEach Guarantor hereby, each Subsidiary Guarantor hereby jointly and severally, irrevocablyfully, fully absolutely, unconditionally and unconditionally irrevocably guarantees, to each holder of a Debt Security, and to the Indenture Trustee in its individual capacity and on a senior basis, as guarantor and not as a surety, with behalf of each other GuarantorDebtholder, the full and punctual payment and performance when duedue of all Indenture Obligations which, whether at Stated Maturityfor purposes of its Guarantee, shall also be deemed to include all commissions, fees, charges, costs and other expenses (including reasonable legal fees and disbursements of counsel) arising out of or incurred by acceleration the Indenture Trustee or otherwise, all Obligations the Debtholders in connection with the enforcement of the Issuers under this Indenture any Guarantee and agrees to indemnify and hold harmless each Debtholder and the Notes Documents (including interest thatIndenture Trustee from all losses, but for damages, costs, expenses and liabilities suffered or incurred by the filing Debtholders and the Indenture Trustee resulting or arising from or relating to any failure by Baytex to unconditionally and irrevocably pay in full or fully perform the Indenture Obligations as and when due provided that the amount of a petition in any bankruptcy or other insolvency proceeding with respect to such indemnification shall not exceed the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for amount of such interest Indenture Obligations as described in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwisepreceding sentence. Without limiting the generality of the foregoing, each Guarantor's liability shall extend to all amounts that constitute part of the Indenture Obligations and would be owed by Baytex to such Debtholder or the Indenture Trustee under the Debt Securities or this Indenture but for the fact that they are unenforceable, reduced, limited, suspended or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving Baytex.
(b) Each Guarantor and, by its acceptance hereof, each Debtholder hereby confirms that it is the intention of all such parties that the guarantee by such Guarantor pursuant to its Guarantee not constitute a fraudulent transfer or conveyance for purposes of any Bankruptcy Law, the Fraudulent Conveyances Act (Alberta) or other Canadian or United States federal, provincial or state law or the provisions of its local law relating to fraudulent transfer or conveyance. To effectuate the foregoing intention, the Debtholders and each Guarantor hereby irrevocably agree that the obligations of each Subsidiary such Guarantor herein will not (under its Guarantee shall be limited to the extent lawfulmaximum amount as shall, after giving effect to all other contingent and fixed liabilities of such Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under its Guarantee or pursuant to paragraph (c) of this Section 13.2, result in the obligations of such Guarantor under its Guarantee not constituting a fraudulent conveyance or fraudulent transfer under any such federal, provincial or state law.
(c) In order to provide for just and equitable contribution among the Guarantors, the Guarantors agree, inter se, that in the event any payment or distribution is made by any Guarantor (a "Funding Guarantor") under its Guarantee, such Funding Guarantor shall be discharged entitled to a contribution from each other Guarantor (if any) in a pro rata amount based on the Adjusted Net Assets of each Guarantor (including the Funding Guarantor) for all payments, damages and expenses incurred by the Funding Guarantor in discharging the Indenture Obligations of Baytex or impaired or otherwise affected by any other Guarantor's obligations with respect to its Guarantee. "Adjusted Net Assets" of such Guarantor at any date shall mean the lesser of:
(i) the failure amount by which the fair value of any Holder the property of such Guarantor exceeds the total amount of liabilities, including, without limitation, contingent liabilities (after giving effect to assert any claim all other fixed and contingent liabilities incurred or demand or to enforce any right or remedy against assumed on such date), but excluding liabilities under the Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwiseGuarantee of such Guarantor at such date; and
(ii) any extension or renewal of any thereof; (iii) any rescission, waiver, amendment or modification of any the amount by which the present fair saleable value of the terms or provisions of this Indenture, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge assets of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees at such date exceeds the amount that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to shall be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers required to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount probable liability of such Guaranteed Obligations then due Guarantor on its debts (after giving effect to all other fixed and owing and (ii) accrued and unpaid interest contingent liabilities incurred or assumed on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvencydate), reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration excluding debt in respect of the Guaranteed Obligations guaranteed by this Guarantee Guarantee, as they become absolute and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guaranteematured.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 2 contracts
Sources: Trust Indenture (Baytex Energy Corp.), Trust Indenture (Baytex Energy Corp.)
Guarantees. (a) Subject to the provisions of this Article X, each Subsidiary Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, to the extent lawful, and the Trustee, the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration acceleration, by redemption or otherwise, all Obligations of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or and interest on the NotesNotes and all other Obligations of the Issuer under this Indenture and the Notes (including, expenseswithout limitation, indemnification interest accruing after the filing of any petition in bankruptcy, or otherwise the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all such obligations guaranteed by such Subsidiary Guarantors the foregoing being herein hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will shall remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Guarantor Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will shall not (to the extent lawful) be discharged or impaired or otherwise affected by (ia) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuers Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (iib) any extension or renewal of any thereof; (iiic) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Documentagreement; (ivd) the release of any security held by any Holder for the Guaranteed Guarantor Obligations or any of them; (ve) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vif) any change in the ownership of the IssuersIssuer; (viig) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Guarantor Obligations; or (viiih) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will shall remain in full force and effect until payment in full of all the Guaranteed Guarantor Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal ofprincipal, premium, if any, or interest on any of the Guaranteed Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers Issuer to pay any of the Guaranteed Guarantor Obligations when and as the same will shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and willshall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuers Issuer or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed by this Guarantee hereby may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guaranteeherein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed by this Guarantee hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Guarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) will shall forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this GuaranteeSection.
(i) No Issuers or Neither the Subsidiary Issuer nor the Guarantors will shall be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 2 contracts
Sources: Indenture (Mattel Inc /De/), Indenture (Mattel Inc /De/)
Guarantees. (a) Subject The Company shall not permit any of its Restricted Subsidiaries (other than the Company’s Foreign Restricted Subsidiaries (excluding any RMH GE Entity) or any Insignificant Subsidiary), directly or indirectly, to Guarantee or pledge any assets to secure the provisions payment of this Article X, each Subsidiary Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with each any other Guarantor, the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations Indebtedness of the Issuers Company or any of the Company’s other Restricted Subsidiaries unless such Restricted Subsidiary (x) is a Guarantor under this Indenture or (y) becomes a Guarantor under this Indenture and the Notes Documents (including interest that, but simultaneously executes and delivers a supplemental indenture providing for the filing Guarantee of the payment of the Securities of each series by such Restricted Subsidiary, provided that such Guarantee shall be senior to or pari passu with such Subsidiary’s Guarantee of such other Indebtedness. In addition, in the event that any Restricted Subsidiary that is an Insignificant Subsidiary ceases to be an Insignificant Subsidiary, then such Restricted Subsidiary must become a petition in any bankruptcy or other insolvency proceeding with respect Guarantor and execute a supplemental indenture and, if requested, deliver an opinion of counsel to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary A Guarantor waives (to the extent lawful) presentation may sell or otherwise dispose of all or substantially all of its assets to, demand ofor consolidate with or merge with or into (whether or not such Guarantor is the surviving Person), payment from and protest another Person, other than the Company or another Guarantor, provided that immediately after giving effect to the Issuers that transaction, no Default or Event of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed ObligationsDefault exists.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a The Note Guarantee of payment when due a Guarantor shall be released:
(and not a Guarantee 1) in connection with any sale or other disposition of collection) and waives any right to require that any resort be had by any Holder to any security held for payment all of the Guaranteed Obligations.Capital Stock of that Guarantor to a Person that is not (either before or after giving effect to such transaction) a Restricted Subsidiary, if the sale of all such Capital Stock of that Guarantor complies with Section 1014;
(d2) Except if the Company properly designates any Restricted Subsidiary that is a Guarantor as set forth in Section 10.2 and Article VIII, the obligations of each an Unrestricted Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers or any other Person under this Indenture, ; or
(3) upon the Notes release or discharge of the Guarantee (including the Guarantee under the Credit Agreement) which resulted in the creation of such Note Guarantee pursuant to this Section 1013 (except a discharge or release by or as a result of payment under such Guarantee); provided that such Guarantor does not have any preferred stock outstanding at such time that is not held by the Company 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 2 contracts
Sources: Indenture (AMC Networks Inc.), Indenture (WE TV Studios LLC)
Guarantees. (ai) Subject In the event that any Subsidiary of the Borrower (other than an Excluded ▇▇▇▇▇ or a Receivables Entity) incurs or guarantees (x) any Indebtedness of the Borrower, owed to a Person other than any Subsidiary, in excess of an aggregate principal amount of $500,000,000 for all such Indebtedness of such Subsidiary with respect to the Borrower (such Indebtedness of such Subsidiary with respect to the Borrower, “Triggering Indebtedness”) or (y) Mylan Notes in excess of an aggregate principal amount of $500,000,000, and (ii) if ▇▇▇▇▇ ceases to be an Excluded ▇▇▇▇▇ and would otherwise satisfy clause (i) above, then, in each case, the Borrower shall cause each such Subsidiary to Guarantee the Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the Lenders and shall cause each such Subsidiary to deliver to the Administrative Agent (A) a joinder to this Agreement in or substantially in the form attached as Exhibit F (each such joinder, a “Guarantor Joinder Agreement”) duly executed and delivered by such Subsidiary, (B) all documents and other information reasonably requested by the Lenders in order to allow the Lenders to comply with the Act and the Beneficial Ownership Regulation, (C) customary legal opinions substantially similar to those delivered pursuant to Section 4.01(b) (with such changes as may be appropriate to reflect local law concerns), (D) customary closing documents substantially similar to those delivered pursuant to Section 4.01(c) and (E) other documentation required under applicable Laws (it being understood that any such guarantee of Indebtedness by such Subsidiary shall be subject to the provisions of Section 6.01 of this Article XAgreement). In the event that (1) the Administrative Agent receives evidence reasonably satisfactory to it that any Guarantor has been or will concurrently be released from, each Subsidiary Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior basis, as or otherwise not be an issuer or guarantor and not as a surety, with each other Guarantor, the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure Triggering Indebtedness of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; such Guarantor and (ii) any extension Mylan Notes in excess of an aggregate principal amount of $500,000,000, or renewal of any thereof; (iii2) any rescission▇▇▇▇▇ becomes an Excluded ▇▇▇▇▇, waiverthen, amendment or modification of any in each case, at the request of the terms or provisions of this IndentureBorrower, such Guarantor shall be released from the NotesGuarantee Agreement (and, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any avoidance of them; (v) doubt, such release shall not require the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership approval of the Issuers; Lenders) so long as at the time of and after giving effect to such release and all such concurrent releases, all of such Guarantor’s then outstanding Indebtedness would then be permitted to be incurred at such time under Section 6.01 (vii) any defaulttreating, failure or delayfor this purpose, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge all Indebtedness of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all being incurred at the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceedingrelease).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Viatris Inc), Revolving Credit Agreement (Viatris Inc)
Guarantees. (a) Subject to the provisions of this Article X, each Subsidiary Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with each other Guarantor, to each Holder of the Notes, to the extent lawful, and the Trustee the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration acceleration, by redemption or otherwise, all Obligations of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or and interest on the NotesNotes and all other Obligations of the Issuer under this Indenture and the Notes (including, expenseswithout limitation, indemnification interest accruing after the filing of any petition in bankruptcy, or otherwise the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer, or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all such obligations guaranteed by such Subsidiary Guarantors the foregoing being herein hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will shall remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Guarantor Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will shall not (to the extent lawful) be discharged or impaired or otherwise affected by (ia) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers Issuer or any other Person person under this Indenture, the Notes or any other agreement or otherwise; (iib) any extension or renewal of any thereof; (iiic) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Documentagreement; (ivd) the release of any security held by any Holder for the Guaranteed Guarantor Obligations or any of them; (ve) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vif) any change in the ownership of the IssuersIssuer; (viig) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Guarantor Obligations; or (viiih) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will shall remain in full force and effect until payment in full of all the Guaranteed Guarantor Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII, as applicable. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will 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, premium, if any, or interest on any of the Guaranteed Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers Issuer to pay any of the Guaranteed Guarantor Obligations when and as the same will shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and willshall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers Issuer or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed by this Guarantee hereby may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guaranteeherein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed by this Guarantee hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Guarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) will shall forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this GuaranteeSection 10.1.
(i) No Issuers or Neither the Subsidiary Issuer nor the Guarantors will shall be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will shall not be a condition to the validity of any Guarantee.
Appears in 2 contracts
Sources: Indenture (Booz Allen Hamilton Holding Corp), Indenture (Booz Allen Hamilton Holding Corp)
Guarantees. (a) Subject to For good and valuable consideration, the provisions receipt and sufficiency of this Article Xwhich are hereby acknowledged, each of the Guarantors, together with each Subsidiary Guarantor of the Company which in accordance with Section 11.08 is required in the future to guarantee the Obligations of the Company and the Guarantors under the Securities, the Guarantees and this Indenture upon execution of a supplemental indenture, hereby jointly and severally, irrevocably, fully severally and irrevocably and unconditionally guaranteesguarantees to the Trustee and to each Holder of a Security authenticated and delivered by the Trustee irrespective of the validity or enforceability of this Indenture or the Securities or the Obligations of the Company and the Guarantors under this Indenture, that: (i) the principal of, premium, if any, and any interest, on the Securities (including, without limitation, any interest that accrues after the filing of a senior basisproceeding of the type described in Sections 6.01(g) and (h)) and any fees, as guarantor expenses and not as a surety, with each other Guarantor, the amounts owing under this Indenture will be duly and punctually paid in full and punctual payment when due, whether at Stated Maturity, by acceleration acceleration, call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase or otherwise, and interest on the overdue principal and (to the extent permitted by law) interest, if any, on the Securities and any other amounts due in respect of the Securities, and all other Obligations of the Issuers Company and the Guarantors to the Holders of the Securities under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any ObligationSecurities, whether now or not a claim is allowed against hereafter existing, will be promptly paid in full or performed, all strictly in accordance with the Issuers for such interest in the related bankruptcy proceeding) to the Holders terms hereof and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwiseSecurities; (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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event case of any such declaration extension of acceleration time of payment or renewal of any Securities or any of such Guaranteed other Obligations, such Guaranteed Obligations (the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration, call for redemption, upon Change of Control Offer, Asset Sale Offer, purchase or otherwise. If payment is not made when due of any amount so guaranteed for whatever reason, each Guarantor shall be jointly and severally obligated to pay the same individually whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees such failure to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required has become an Event of Default which could cause acceleration pursuant to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.Section
Appears in 2 contracts
Sources: Indenture (Grey Wolf Inc), Indenture (Di Industries Inc)
Guarantees. (a) Subject Each of TW AOL and Historic TW, as primary obligor and not merely as surety, will fully, irrevocably and unconditionally guarantee, to each Holder of Securities (including each Holder of Securities issued under the Indenture after the date of this Indenture) and to the provisions of this Article X, each Subsidiary Guarantor hereby jointly Trustee and severally, irrevocably, fully its successors and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with each other Guarantor, assigns (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or of and interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment Securities when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises and all other monetary obligations of the Company under this Indenture (including obligations to and will, upon receipt of written demand by the Trustee) and the Securities and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Securities.
(b) Each of TBS and TWCI, forthwith payas primary obligor and not merely as surety, or cause will fully, irrevocably and unconditionally guarantee, to be paid, in cash, each Holder of Securities (including each Holder of Securities issued under the Indenture after the date of this Indenture) and to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of and its successors and assigns (i) the unpaid amount full and punctual payment of such Guaranteed Obligations then all monies due under the Guarantee of Historic TW, and owing all other monetary obligations of Historic TW under this Indenture (including obligations to the Trustee) and (ii) accrued the full and unpaid interest on such Guaranteed Obligations then due punctual performance within applicable grace periods of all other obligations of Historic TW under this Indenture and owing its Guarantee.
(but only c) Each of the Guarantors further agrees that its obligations hereunder shall be unconditional irrespective of the absence or existence of any action to enforce the same, the recovery of any judgment against the Company or any other Guarantor (except to the extent not prohibited by lawsuch judgment is paid) (including interest accruing after or any waiver or amendment of the filing provisions of any petition in bankruptcy this Indenture or the commencement of any insolvency, reorganization or like proceeding relating Securities to the Issuers extent that any such action or any Subsidiary Guarantor whether similar action would otherwise constitute a legal or not equitable discharge or defense of a claim for post-filing guarantor (except that each such waiver or post-petition interest is allowed amendment shall be effective in such proceedingaccordance with its terms).
(gd) Each Subsidiary Guarantor of the Guarantors further agrees thatthat each Guarantee constitutes a guarantee of payment, as between such Subsidiary Guarantorperformance and compliance and not merely of collection.
(e) Each of the Guarantors further agrees to waive presentment to, on demand of payment from and protest to the one handCompany or any other Person, and the Holdersalso waives diligence, on the other hand, (i) the maturity notice of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes acceptance of its Subsidiary Guarantee in this Guarantee, notwithstanding any staypresentment, injunction or other prohibition preventing such acceleration in respect demand for payment, notice of protest for nonpayment, the Guaranteed Obligations guaranteed by this Guarantee and (ii) filing of claims with a court in the event of merger or bankruptcy of the Company or any such declaration other Person and any right to require a proceeding first against the Company or any other Person. The obligations of acceleration the Guarantors shall not be affected by any failure or policy on the part of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee to exercise any right or remedy under this Indenture or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity Securities of any Guaranteeseries.
Appears in 2 contracts
Sources: Indenture (Turner Broadcasting System Inc), Indenture (Time Warner Inc)
Guarantees. (a) Subject to this Section 9 each of the provisions of this Article XGuarantors hereby, each Subsidiary Guarantor hereby as a primary obligor and not merely as surety, jointly and severally, irrevocablyunconditionally guarantees to the Holder and its successors and assigns, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with each other Guarantor, the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations irrespective of the Issuers under validity and enforceability of this Indenture and Note or the Notes Documents obligations of the Borrower hereunder or thereunder, that:
(including interest that, but for i) the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or and interest on the Noteson, expenses, indemnification or otherwise (all this Note and such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed other Note Obligations may will be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain promptly paid in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations cash when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary and interest on the overdue principal of and interest on this Note, if any, if lawful, and all other obligations of the Borrower to the Holder hereunder will be promptly paid in full in cash or performed, all in accordance with the terms hereof and thereof; and
(ii) in case of any extension of time of payment or renewal of this Note or any of such other obligations (including Note Obligations), that same will be promptly paid in full in cash when due or performed in accordance with the terms of the extension or renewal, whether at maturity, by acceleration or otherwise.
(b) Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(c) The Guarantors hereby agree that their obligations hereunder are unconditional, irrespective of the validity, regularity or enforceability of this Note, the absence of any action to enforce the same, any amendment, waiver or consent by the Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Borrower or any other Guarantor, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor hereby promises unconditionally and irrevocably waives and agrees not to assert any claim, defense, setoff or counterclaim based on diligence, promptness, presentment, requirements for any demand or notice hereunder including any of the following: (i) any demand for payment or performance and willprotest and notice of protest; (ii) any notice of acceptance; (iii) any presentment, upon receipt demand, protest or further notice or other requirements of written demand any kind with respect to any Note Obligation (including any accrued but unpaid interest thereon) becoming immediately due and payable; and (iv) any other notice in respect of any Note Obligation or any part thereof, and any defense arising by reason of any disability or other defense of the Borrower or any Guarantor. Each Guarantor further unconditionally and irrevocably agrees not to (x) enforce or otherwise exercise any right of subrogation or any right of reimbursement or contribution or similar right against the Borrower or any Guarantor or (y) assert any claim, defense, setoff or counterclaim it may have against the Borrower or any other Guarantor or set off any of its obligations to the Borrower or any other Guarantor against obligations of such Guarantor to the Borrower or such other Guarantor. No obligation of any Guarantor hereunder shall be discharged other than by complete performance. Each Guarantor further waives any right such Guarantor may have under any applicable requirement of law to require the Collateral Agent or the Holder to seek recourse first against the Borrower or any other Person as a condition precedent to enforcing such Guarantor’s liability and obligations under this Section 9.
(d) If the Holder is required by any court or otherwise to return any amount paid by the TrusteeBorrower or any Guarantor, forthwith pay, or cause to be paid, in cashthis Guarantee, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due extent theretofore discharged, will be reinstated in full force and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)effect.
(ge) Each Subsidiary Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holder in respect of any obligations guaranteed hereby until payment in full in cash of all obligations (including the Note Obligations) guaranteed hereby. Each Guarantor further agrees that, as between such Subsidiary Guarantorthe Guarantors, on the one hand, and the HoldersHolder and the Collateral Agent, on the other hand, (i1) the maturity of the Guaranteed Obligations obligations guaranteed by this Guarantee hereby may be accelerated as provided in this Indenture Section 12(b) for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations obligations guaranteed by this Guarantee hereby, and (ii2) in the event of any such declaration of acceleration of such Guaranteed Obligationsobligations as provided in Section 12(b), such Guaranteed Obligations obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor Guarantors for the purpose of this guarantee.
(f) Each Guarantor, and by its acceptance of the Note, the Holder, hereby confirms that it is the intention of all such parties that the guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of applicable Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any guarantee. To effectuate the foregoing intention, the Holder and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount that will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Subsidiary Section 9, result in the obligations of such Guarantor under its guarantee not constituting a fraudulent transfer or conveyance. Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Note and that its Guarantee, and the waivers set forth herein, are knowingly made in contemplation of such benefits.
(g) To evidence a guarantee set forth in Section 9(a), this Note will be executed on behalf of each Guarantor by one of its officers or authorized representatives and, with respect to any Guarantors providing a Guarantee after the date hereof, a Joinder Agreement will be executed on behalf of such Guarantor by one of its officers. Each Guarantor hereby agrees that its guarantee set forth in Section 9(a) will remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such guarantee.
(h) Each Subsidiary Except as otherwise provided in Section 9(i), a Guarantor also agrees may not, directly or indirectly, (1) consolidate with or merge with or into, or (2) sell, convey, transfer or lease all or substantially all of its properties and assets to pay (whether or not such Guarantor is the surviving Person), any and all reasonable costs and expenses (including attorneys’ fees) incurred by other Person, other than the Trustee Borrower or the Holders in enforcing any rights under this Guaranteeanother Guarantor, unless.
(i) No Issuers immediately after giving effect to that transaction, no Default or Event of Default has occurred and is continuing or would be caused thereby; and
(ii) the Person acquiring the property in any such sale or disposition or the Subsidiary Guarantors Person formed by or surviving any such consolidation or merger (if other than the Borrower or another Guarantor) is an entity organized under the laws of the United States and otherwise reasonably acceptable to the Majority Holders and expressly assumes, by executing and delivering supplements and amendments to this Note and the other Note Documents that are satisfactory in form to the Collateral Agent, the Holder Representative (as to their respective rights, duties and obligations, as applicable) and the Majority Holders, all of the obligations of that Guarantor under its Guaranty, this Note and all other appropriate Note Documents. In case of any such consolidation, merger, sale, conveyance, transfer or lease and upon the assumption by the successor Person of the Guaranty of such Guarantor and the due and punctual performance of all of the covenants and conditions of this Note and the other Note Documents to be performed by such Guarantor, such successor Person will succeed to and be substituted for the Guarantor with the same effect as if it had been named herein as a Guarantor. Such successor Person thereupon may cause to be signed any or all of the Notes issuable under the Purchase Agreement which theretofore shall not have been signed and delivered by the Borrower; provided, however, that the Guaranty of such successor Person will remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Guaranty. All the Guaranties so issued will in all respects have the same legal rank and benefit under the Purchase Agreement as the Guaranties theretofore and thereafter issued in accordance with the terms of this Note and the other Note Documents as though all of such Guaranties had been issued at the date of the execution of the Purchase Agreement.
(i) The Guaranty of any Guarantor, and the Collateral Agent’s Lien on the Collateral of such Guarantor, will be required automatically released upon the liquidation or dissolution of such Guarantor following the Transfer of all of its assets to make the Borrower or another Guarantor as permitted hereunder. If the Guaranty of any Guarantor or all or substantially all of the assets of a notation Guarantor or the Capital Stock of any Guarantor are sold or disposed of in the manner described in this clause (i), and such Guarantor (or as the context may require, Collateral) is released, the Borrower shall deliver to the Collateral Agent and the Holder Representative a certificate of a Responsible Officer stating and certifying the identity of the released Guarantor (any/or the applicable Collateral), the basis for release in reasonable detail and that such release complies with this Note and the other Note Documents. Upon delivery by the Borrower to the Collateral Agent and the Holder Representative of a certificate of a Responsible Officer and an opinion of counsel to the effect that the conditions precedent to this clause (i) have been met with respect to a Guarantor (or such Collateral) in accordance with the provisions of this Note and the other Note Documents, the Collateral Agent and Holder Representative will execute any documents reasonably requested that are necessary or advisable in order to evidence the release of such Guarantor from its obligations under its Guaranty or the applicable Note Documents. Any Guarantor not released from its obligations under its Guaranty as provided in this Section 9(i) will remain liable for the full amount of principal of and interest and premium, if any, on the Notes to reflect and for the other obligations (including the Note Obligations) of any Subsidiary Guarantee Guarantor under this Note and the other Note Documents as provided in this Section 9 notwithstanding the release of any other Guarantor.
(j) Each Guarantor hereby assumes responsibility for keeping itself informed of the financial condition of the Borrower, each other Guarantor and any other guarantor, maker or endorser of any Note Obligation or any releasepart thereof, termination and of all other circumstances bearing upon the risk of nonpayment of any Note Obligation or discharge any part thereof that diligent inquiry would reveal, and each Guarantor hereby agrees that the Holder shall not have any duty to advise any Guarantor of information known to it regarding such condition or any such notation will circumstances. In the event the Holder, in its sole discretion, undertakes at any time or from time to time to provide any such information to any Guarantor, then the Holder shall be under no obligation to (a) undertake any investigation not be a condition part of its regular business routine, (b) disclose any information that such Person, pursuant to the validity accepted or reasonable commercial finance or banking practices, wishes to maintain confidential or (c) make any future disclosures of such information or any Guaranteeother information to any Guarantor.
Appears in 2 contracts
Sources: Option Exercise and Sixth Amendment to the 10% Secured Convertible Notes (Reed's, Inc.), Limited Waiver, Deferral and Amendment and Restatement Agreement (Reed's, Inc.)
Guarantees. (a) Subject to the provisions of this Article X, each Subsidiary Each Guarantor hereby jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, on as a senior basis, as guarantor primary obligor and not merely as a surety, with to each other Guarantor, Holder and to the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration acceleration, by redemption or otherwise, of all Obligations obligations of the Issuers Issuer under this Indenture (including obligations to the Trustee) and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the TrusteeNotes, whether for payment of principal of, premium, if any, or interest on or additional interest in respect of the NotesNotes and all other monetary obligations of the Issuer under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Issuer whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes (all such obligations guaranteed by such Subsidiary Guarantors the foregoing being herein hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it will each such Guarantor shall remain bound under this Article X 10 notwithstanding any extension or renewal of any Subsidiary Guarantor Guaranteed Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuers Issuer of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder 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 the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (ii) any extension or renewal of this Indenture, the Notes or any other agreement; (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 Guaranteed Obligations or any Guarantor; (v) the failure of any Holder or Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (vi) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
(c) Each Subsidiary Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Guarantors, such that such Guarantor’s obligations would be less than the full amount claimed. Each Guarantor hereby waives any right to which it may be entitled to have the assets of the Issuer first be used and depleted as payment of the Issuer’s or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder. Each Guarantor hereby waives any right to which it may be entitled to require that the Issuer be sued prior to an action being initiated against such Guarantor.
(d) Each Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee 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.
(de) Except as expressly set forth in Section 10.2 Sections 8.01, 10.02 and Article VIII10.06, the obligations of each Subsidiary Guarantor hereunder will shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and will shall not (to the extent lawful) be subject to any defense of setoffset-off, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will shall not (to the extent lawful) be discharged or impaired or otherwise 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 the Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (ii) agreement, by any extension or renewal of any thereof; (iii) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenturethereof, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; obligations, or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such any Guarantor as a matter of law or equity.
(ef) Each Subsidiary Except as expressly set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Subsidiary Guarantee herein will shall remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee Obligations. Except as expressly set forth in compliance with Section 4.1Sections 8.01 and 10.02, Section 10.2 and Article VIII. Each Subsidiary each Guarantor further agrees that its Subsidiary Guarantee herein will 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, premium, if any, of or interest on any of the Guaranteed Obligations Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuers Issuer or otherwise.
(fg) 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 any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers Issuer to pay the principal of or interest on any of the Guaranteed Obligations Obligation when and as the same will shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and willshall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations then due and owing and Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after iii) all other monetary obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating Issuer to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed Holders and the Trustee in such proceeding)respect of the Guaranteed Obligations.
(gh) Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between such Subsidiary Guarantorit, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee hereby may be accelerated as provided in this Indenture Article 6 for the purposes of its Subsidiary any Guarantee in this Guaranteeherein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee hereby, and (ii) in the event of any such declaration of acceleration of such Guaranteed ObligationsObligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) will shall forthwith become due and payable by the such Guarantor for the purposes of this Subsidiary GuaranteeSection 10.01.
(hi) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ feesfees and expenses) incurred by the Trustee or the Holders any Holder in enforcing any rights under this GuaranteeSection 10.01.
(ij) No Issuers Upon request of the Trustee, each Guarantor shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity purpose of any Guaranteethis Indenture.
Appears in 2 contracts
Guarantees. (a) Subject to the provisions of this Article X, each Subsidiary Each Guarantor hereby jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, guarantees on a senior secured basis, as guarantor a primary obligor and not merely as a surety, with to each other Guarantor, Holder and to the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration acceleration, by redemption or otherwise, of all Obligations obligations of the Issuers Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the TrusteeNotes, whether for payment of principal of, premium, if any, or interest (including any interest, fees, costs or charges that would accrue but for the provisions of (x) the Bankruptcy Code after any bankruptcy or insolvency petition under the Bankruptcy Code and (y) any other debtor relief laws) on the NotesNotes held by the Holders, all other monetary obligations of the Company under this Indenture and the Notes and all other Second Lien Obligations and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture, the Notes and the Security Documents (all such obligations guaranteed by such Subsidiary Guarantors the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents being herein hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it will each such Guarantor shall remain bound under this Article X 10 notwithstanding any extension or renewal of any Subsidiary Guarantor Guaranteed Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuers Company of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (i) the failure of any Holder, the Trustee or Collateral Agent to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (ii) any extension or renewal of this Indenture, the Notes or any other agreement; (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, if any, held by any Holder, the Trustee or Collateral Agent for the Guaranteed Obligations or any Guarantor; (v) the failure of any Holder, Trustee or Collateral Agent to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (vi) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
(c) Each Subsidiary Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Guarantors, such that such Guarantor’s obligations would be less than the full amount claimed. Each Guarantor hereby waives any right to which it may be entitled to have the assets of the Company first be used and depleted as payment of the Company’s or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder. Each Guarantor hereby waives any right to which it may be entitled to require that the Company be sued prior to an action being initiated against such Guarantor.
(d) Each Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee guarantee of collection) and waives any right to require that any resort be had by any Holder Holder, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(de) Except as expressly set forth in Section 10.2 Sections 8.01 and Article VIII10.02, the obligations of each Subsidiary Guarantor hereunder will shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and will shall not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will shall not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder Holder, the Trustee or Collateral Agent to assert any claim or demand or to enforce any right or remedy against the Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (ii) agreement, by any extension or renewal of any thereof; (iii) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenturethereof, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; obligations, or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such any Guarantor as a matter of law or equity.
(ef) Each Subsidiary Except as set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Subsidiary Guarantee herein will shall remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee Obligations. Except as set forth in compliance with Section 4.1Sections 8.01 and 10.02, Section 10.2 and Article VIII. Each Subsidiary each Guarantor further agrees that its Subsidiary Guarantee herein will 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, premium, if any, of or interest on any of the Guaranteed Obligations Obligation is rescinded or must otherwise be restored by any Holder Holder, the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Issuers Company or otherwise.
(fg) In furtherance of the foregoing and not in limitation of any other right which any Holder Holder, the Trustee or Collateral Agent has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers Company to pay the principal of or interest on any of the Guaranteed Obligations Obligation when and as the same will shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and willshall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or the Trustee on behalf of the Holders Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations then due and owing and Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after iii) all other monetary obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating Company to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed Holders, the Trustee and Collateral Agent in such proceeding)respect of the Guaranteed Obligations.
(gh) Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between such Subsidiary Guarantorit, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee hereby may be accelerated as provided in this Indenture Article 6 for the purposes of its Subsidiary any Guarantee in this Guaranteeherein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee hereby, and (ii) in the event of any such declaration of acceleration of such Guaranteed ObligationsObligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) will shall forthwith become due and payable by the such Guarantor for the purposes of this Subsidiary GuaranteeSection 10.01.
(hi) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs fees and expenses (including reasonable attorneys’ feesfees and expenses) incurred by the Trustee Trustee, the Collateral Agent or the Holders any Holder in enforcing any rights under this GuaranteeSection 10.01.
(ij) No Issuers Upon request of the Trustee, each Guarantor shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the Subsidiary Guarantors will purpose of this Indenture.
(k) Any Guarantee given by any direct or indirect parent of the Company may be required to make a notation on the Notes to reflect released and discharged from all obligations under this Article 10 at any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition time upon written notice to the validity Trustee from such direct or indirect parent of any Guaranteethe Company.
Appears in 2 contracts
Sources: Indenture (Delta Tucker Holdings, Inc.), Indenture (Worldwide Recruiting & Staffing Services LLC)
Guarantees. (a) Subject to the provisions of this Article XEach Guarantor, each Subsidiary Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with guarantees to each other Guarantor, Guaranteed Party the full due and punctual payment when due, whether at Stated Maturity, by acceleration Rayonier (or otherwise, all Obligations of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect TRS on Rayonier’s behalf pursuant to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against Contribution Agreement) of (a) the Issuers for such interest in the related bankruptcy proceeding) to the Holders principal of and the Trustee, whether for payment of principal of, premium, if any, and interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or interest other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the NotesRevenue Bonds, expenseswhen and as due, indemnification whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, and (b) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of Rayonier to the Guaranteed Parties under any trust indenture, loan agreement or other related operative documents governing the Revenue Bonds (together, the “Bond Documents”), whether such amounts shall have accrued prior to, on or after the date of this Guarantee (all such the monetary obligations guaranteed by such Subsidiary Guarantors referred to in the preceding clauses (a) and (b) being herein collectively called the “Guaranteed Rayonier Obligations”). Each Subsidiary Guarantor agrees (Anything contained in this Guarantee to the extent lawfulcontrary notwithstanding, the obligations of each Guarantor hereunder shall be limited to a maximum aggregate amount equal to the greatest amount that would not render such obligations subject to avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11 of the United States Code or any provisions of applicable law (collectively, the “Fraudulent Transfer Laws”), in each case after giving effect to all other liabilities of such Guarantor, contingent or otherwise, that are relevant under the Fraudulent Transfer Laws and after giving effect as assets to the value (as determined under the applicable provisions of the Fraudulent Transfer Laws) of any rights to subrogation, contribution, reimbursement, indemnity or similar rights of such Guarantor pursuant to (i) applicable law or (ii) any agreement providing for an equitable allocation among such Guarantor and other Affiliates of Rayonier of obligations arising under Guarantees by such parties. Each Guarantor further agrees that the Guaranteed Rayonier Obligations may be extended or renewed, in whole or in part, without notice to or further assent from it, and that it will remain bound under this Article X upon its guarantee notwithstanding any extension or renewal of any Subsidiary Guarantor Rayonier Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 2 contracts
Guarantees. (a) Subject to the provisions of this Article X, each Subsidiary Each Guarantor hereby jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, on a senior basis, as guarantor guarantees to each Holder and not as a surety, with each other Guarantor, to the Trustee and its successors and assigns (1) the full and punctual payment when due, whether at Stated Maturity, by acceleration acceleration, by redemption or otherwise, of all Obligations obligations of the Issuers Issuer under this Indenture (including obligations to the Trustee) and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the TrusteeNotes, whether for payment of principal of, interest or premium, if any, or interest on the NotesNotes and all other monetary obligations of the Issuer under this Indenture and the Notes and (2) the full and punctual performance within applicable grace periods of all other obligations of the Issuer whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes (all such obligations guaranteed by such Subsidiary Guarantors the foregoing being herein hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it will each such Guarantor shall remain bound under this Article X XI notwithstanding any extension or renewal of any Subsidiary Guarantor Guaranteed Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuers Issuer of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (1) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (2) any extension or renewal of any thereof; (3) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (4) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (5) the failure of any Holder or Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (6) any change in the ownership of such Guarantor, except as provided in Sections 11.02(b) and (c).
(c) Each Subsidiary Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Guarantors, such that such Guarantor’s obligations would be less than the full amount claimed. Each Guarantor hereby waives any right to which it may be entitled to have the assets of the Issuer first be used and depleted as payment of the Issuer’s or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder. Each Guarantor hereby waives any right to which it may be entitled to require that the Issuer be sued prior to an action being initiated against such Guarantor.
(d) Each Guarantor further agrees that its Subsidiary Note Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee 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.
(de) Except as expressly set forth in Section 10.2 Sections 8.02, 11.02 and Article VIII11.08, the obligations of each Subsidiary Guarantor hereunder will shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and will shall not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will shall not (to the extent lawful) be discharged or impaired or otherwise 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 the Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (ii) agreement, by any extension or renewal of any thereof; (iii) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenturethereof, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; obligations, or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such any Guarantor as a matter of law or equity.
(ef) Each Subsidiary Except as expressly set forth in Sections 8.02, 11.02 and 11.08, each Guarantor agrees that its Subsidiary Note Guarantee herein will shall remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIIIObligations. Each Subsidiary Guarantor further agrees that its Subsidiary Note Guarantee herein will 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, premium, if any, of or interest on any of the Guaranteed Obligations Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuers Issuer or otherwise.
(fg) 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 any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers Issuer to pay the principal of or interest on any of the Guaranteed Obligations Obligation when and as the same will shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and willshall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i1) the unpaid principal amount of such Guaranteed Obligations then due and owing and Obligations, (ii2) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) and (including interest accruing after 3) all other monetary obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating Issuer to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)Holders and the Trustee.
(gh) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantorit, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (i1) the maturity of the Guaranteed Obligations guaranteed by this Guarantee hereby may be accelerated as provided in this Indenture Article VI for the purposes of its Subsidiary any Note Guarantee in this Guaranteeherein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee hereby, and (ii2) in the event of any such declaration of acceleration of such Guaranteed ObligationsObligations as provided in Article VI, such Guaranteed Obligations (whether or not due and payable) will shall forthwith become due and payable by the such Guarantor for the purposes of this Subsidiary GuaranteeSection 11.01.
(hi) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ feesfees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this GuaranteeSection 11.01.
(ij) No Issuers Upon request of the Trustee, each Guarantor shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity purpose of any Guaranteethis Indenture.
Appears in 2 contracts
Sources: Indenture (Encore Capital Group Inc), Indenture (Encore Capital Group Inc)
Guarantees. (a) Subject to the provisions of this Article X, each Subsidiary Each Guarantor hereby jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, guarantees on a senior an unsecured basis, as guarantor a primary obligor and not merely as a surety, with to each other Guarantor, Holder and the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration or otherwise, of all Obligations obligations of the Issuers Company under this Indenture (including obligations to the Trustee) and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the TrusteeNotes, whether for payment of principal of, premium, if any, or interest on on, if any, the NotesNotes and all other monetary obligations of the Company under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, in each case on the terms set forth in this Indenture including, without limitation Section 10.02 hereof, by executing this Indenture (all such obligations guaranteed by such Subsidiary Guarantors the foregoing being herein hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it will each such Guarantor shall remain bound under this Article X 10 notwithstanding any extension or renewal of any Subsidiary Guarantor Guaranteed Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuers Company of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee 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.
(d) Except as expressly set forth in Section 10.2 Sections 8.01(b), 10.02 and Article VIII10.06, the obligations of each Subsidiary Guarantor hereunder will shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and will shall not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Subject to Section 10.02 hereof, each Guarantor agrees that its Subsidiary Guarantee herein will shall remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIIIObligations. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will 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, premium, if any, of or interest on any of the Guaranteed Obligations Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuers Company or otherwise.
(f) 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 any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers Company to pay the principal of or interest on any of the Guaranteed Obligations Obligation when and as the same will shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and willshall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations then due and owing and Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after iii) all other monetary obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating Company to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)Trustee.
(g) Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Trustee in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between such Subsidiary Guarantorit, on the one hand, and the HoldersTrustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee hereby may be accelerated as provided in this Indenture Article 6 for the purposes of its Subsidiary any Guarantee in this Guaranteeherein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee hereby, and (ii) in the event of any such declaration of acceleration of such Guaranteed ObligationsObligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) will shall forthwith become due and payable by the such Guarantor for the purposes of this Subsidiary GuaranteeSection 10.01.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ feesfees and expenses) incurred by the Trustee or the Holders any Holder in enforcing any rights under this GuaranteeSection 10.01. Each Guarantor shall promptly execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 2 contracts
Guarantees. (a) Subject to Each of the provisions of this Article XGuarantors, each Subsidiary Guarantor as primary obligor and not merely as surety, hereby jointly and severally, irrevocably, irrevocably and fully and unconditionally guaranteesguarantees to each Holder and to the Trustee and its successor and assigns (each, a “Guarantee”) on a senior basisan unsecured, as guarantor unsubordinated basis and not as a suretyequal in right of payment to all existing and future unsecured, with each other unsubordinated indebtedness of such Guarantor, the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, due of all Obligations monetary obligations of the Issuers Company under this the Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceedingNotes) to the Holders and the TrusteeNotes, whether for payment principal of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary The obligations of each Guarantor waives (shall be limited to the extent lawful) presentation tomaximum amount as shall, demand of, payment after giving effect to all other contingent and fixed liabilities of such Guarantor and after giving effect to any collections from and protest to the Issuers or payments made by or on behalf of any other Guarantor in respect of the Guaranteed Obligations and also waives (to obligations of such other Guarantor under its Guarantee, result in the extent lawful) notice obligations of protest for nonpayment. Each Subsidiary such Guarantor waives (to the extent lawful) notice of any default under the Notes Guarantee not constituting a fraudulent conveyance or the Guaranteed Obligationsfraudulent transfer under applicable law, or being void or unenforceable under any law relating to insolvency of debtors.
(c) Each Subsidiary Guarantor further agrees that (to the fullest extent permitted by law) its Subsidiary Guarantee herein constitutes a Guarantee obligations hereunder shall be unconditional, irrespective of payment when due (and not a Guarantee the validity, regularity or enforceability of collection) and waives the Indenture, the Notes or the obligations of the Company or any right other Guarantor hereunder or thereunder, the absence of any action to require that enforce the same, any resort be had waiver or consent by any Holder with respect to any security held for payment provisions hereof or thereof, any release of any other Guarantor, the Guaranteed Obligationsrecovery of any judgment against the Company, any action to enforce the same, or any other circumstance that might otherwise constitute a legal or equitable discharge or defense of a Guarantor.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Each Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not hereby waives (to the fullest extent lawfulpermitted by law) be subject to any defense the benefit of setoffdiligence, counterclaimpresentment, recoupment demand of payment, filing of claims with a court in the event of insolvency or termination whatsoever or by reason bankruptcy of the invalidityCompany, illegality or unenforceability any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that (except as otherwise provided in Section 7.03 of this First Supplemental Indenture) its Guarantee shall not be discharged except by complete performance of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, contained in the Notes, the Notes Collateral Agreement, Indenture and the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release Guarantee. Such Guarantee is a guarantee of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)collection.
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 2 contracts
Sources: First Supplemental Indenture, First Supplemental Indenture (Whole Foods Market Inc)
Guarantees. (a) Subject to the provisions Each of this Article XAOL and Time Warner hereby, each Subsidiary Guarantor hereby jointly and severally, irrevocablyunconditionally and irrevocably guarantees to the Administrative Agent, fully for the ratable benefit of the Lenders and unconditionally guaranteestheir respective successors, on a senior basisindorsees, as guarantor transferees and not as a surety, with each other Guarantorassigns, the full prompt and punctual complete payment and performance by the Designated Borrowers when due, due (whether at Stated Maturitythe stated maturity, by acceleration or otherwise, all Obligations ) of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (AOLTW hereby, jointly and severally, unconditionally and irrevocably guarantees to the extent lawful) presentation toAdministrative Agent, demand of, payment from and protest to for the Issuers of any ratable benefit of the Guaranteed Lenders and their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by AOLTWFI when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed ObligationsAOLTWFI.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of TBS and TWCI hereby, jointly and severally, unconditionally and irrevocably guarantees to the Administrative Agent, for the ratable benefit of the Lenders and their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by Time Warner when due (whether at the stated maturity, by acceleration or otherwise) of its obligations and not a liabilities under this Guarantee of collection(the "Time Warner Obligations") and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligationsincluding under Section 2(a) hereof.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary This Guarantee herein will shall remain in full force and effect until payment the Obligations are paid in full and the Commitments are terminated, notwithstanding that from time to time prior thereto either one or both of all the Guaranteed Obligations or such Subsidiary Designated Borrowers may be free from any Obligations.
(e) Each Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstatedwhenever, as the case may be, if at any time paymenttime, or from time to time, it shall make any part thereofpayment to the Administrative Agent or any Lender on account of its liability hereunder, of principal of, premium, if any, or interest on any of it will notify the Guaranteed Obligations Administrative Agent and such Lender in writing that such payment is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwisemade under this Guarantee for such purpose.
(f) In furtherance of the foregoing and not Anything herein or in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, Credit Document to the Trustee or contrary notwithstanding, the Trustee on behalf maximum liability of each Guarantor hereunder and under the Holders an other Credit Documents shall in no event exceed the amount equal to the sum of (i) the unpaid amount of which can be guaranteed by such Guaranteed Obligations then due Guarantor under applicable federal and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding state laws relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed insolvency of debtors (after giving effect to the right of contribution established in such proceedingSection 3 hereof).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity No payment or payments made by either of the Guaranteed Designated Borrowers, any of the Guarantors, any other guarantor or any other Person or received or collected by the Administrative Agent or any Lender from either of the Designated Borrowers, any of the Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any setoff or appropriation or payment of the Obligations guaranteed by this Guarantee may shall be accelerated as provided in this Indenture for deemed to modify, reduce, release or otherwise affect the purposes liability of its Subsidiary Guarantee in this Guaranteeany Guarantor hereunder who shall, notwithstanding any stay, injunction such payment or payments (other prohibition preventing than payments made by such acceleration Guarantor in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) or payments received or collected from such Guarantor in respect of the Obligations), remain liable for the Obligations and, in the event case of any such declaration of acceleration TBS and TWCI, the Time Warner Obligations, up to the maximum liability of such Guaranteed Obligations, such Guaranteed Guarantor hereunder until the Obligations (whether or not due are paid in full and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary GuaranteeCommitments are terminated.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 2 contracts
Sources: Credit Agreement (Aol Time Warner Inc), Credit Agreement (Aol Time Warner Inc)
Guarantees. (a) Subject To the extent a Member guarantee is required by an institutional lender to the provisions of this Article X, each Subsidiary Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with each other GuarantorCompany, the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations Board of Directors shall send to each Preferred Member written notice of the Issuers under this Indenture required guarantee including a description of the purpose of the loan the Members are being asked to guarantee, a statement of the potential benefits of the loan to the Company and the Notes Documents Members who guarantee the loan and a statement of the potential impact upon each Member pursuant to this Section if such Member does not guarantee the loan (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”"GUARANTEE NOTICE"). Each Subsidiary Guarantor agrees (The Preferred Members agree to provide, to a maximum aggregate amount of US$250 Million, a several guarantee of the extent lawful) that the Guaranteed Obligations may be extended or renewedCompany's debt according to their respective Percentage Interests. If any Preferred Member fails to provide, in whole or in part, without notice or further assent from ita guarantee as specified above, such failure shall not constitute an Event of Default under this Agreement, but the Percentage Interests of the Preferred Members shall be adjusted so that each Preferred Member's Percentage Interest shall be determined by multiplying (1) the aggregate Percentage Interests of all of the Preferred Members times (2) a fraction, the numerator of which represents the aggregate amount of each Preferred Member's Capital Contribution plus any amount such Member guaranteed as provided for above, and that it will remain bound under this Article X notwithstanding any extension or renewal the denominator of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to which represents the extent lawful) presentation to, demand of, payment from and protest to the Issuers sum of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason all Preferred Members' Capital Contributions (other than payment Common Members) plus the total amount guaranteed by the Members. In addition, the Unpaid Capital Preference and Capital Account of the Guaranteed Obligations Preferred Member who fails to approve in full)whole or in part a guarantee, including any claim as specified above, shall be adjusted in substantially the same manner as Percentage Interests. The Preferred Shares owned by each Preferred Member shall be adjusted accordingly to reflect such adjustments in each Preferred Member's Percentage Interest. As used in the preceding sentence, Capital Contributions shall include those portions of waiver, release, surrender, alteration Capital Contributions made by a Defaulting Member or compromise, and will not (Terminated Member that are credited to the extent lawful) be subject to any defense Capital Account Balances of setoff, counterclaim, recoupment Non-Defaulting Members or termination whatsoever or by reason Remaining Members following a transfer of part of the invalidity, illegality Defaulting Member's or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (Terminated Member's Interest to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers or any other Person such Members under this Indenture, the Notes or any other agreement or otherwise; clause (ii) of either of Section 3.4.1.4 or Section 10.5. If the failure to guarantee the Company's debt is not a Dilution Event each Member's right to receive and obligation to take the output of the Foundry pursuant to the Purchase Agreement and Future Purchase Agreement shall not be affected. However, if such failure is a Dilution Event, the Members' right to receive and obligation to take the output of the Foundry pursuant to the Purchase Agreement and the Future Purchase Agreement shall be adjusted contemporaneously to reflect the change in Percentage Interests. Additionally, if a Member fails to provide a guarantee as specified above, such Member shall not be entitled to acquire directly or indirectly any extension Products of the Company, the production of which has been funded, enabled or renewal otherwise facilitated by the proceeds of any thereof; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this IndentureCompany debt such Member failed to guarantee, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release production of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change which was described in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equityGuarantee Notice.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Integrated Silicon Solution Inc), Limited Liability Company Agreement (Altera Corp)
Guarantees. 3. At issuance, the Notes will not be guaranteed. If, after the date of this Supplemental Indenture, (i) the Notes are not secured obligations on a pari passu basis with the obligations under the Company’s then primary credit facility (other than Permitted Liens) by perfected first-priority security interests in the same assets that constitute Collateral securing the obligations of the Company thereunder and (ii)(a) the Company’s then primary credit facility has the benefit of any guarantee from its Domestic Subsidiaries or (b) the Company or one or more of its Domestic Subsidiaries enters into a guarantee of Senior Indebtedness (including under the Credit Agreement) or one or more of its Domestic Subsidiaries incurs Senior Indebtedness, in each case where the Indebtedness described in clauses (ii)(a) or (ii)(b) in the aggregate, and without duplication in the amount of Indebtedness being calculated, on a consolidated basis outstanding at such time exceeds the Triggering Amount, then the Company shall, within 15 business days, cause each Domestic Subsidiary that is then a guarantor of the Company’s then primary credit facility to execute and deliver to the Trustee a supplemental indenture substantially in the form of Exhibit B hereto pursuant to which such Domestic Subsidiary will guarantee (such guarantee being referred to as the “Triggering Guarantee”) payment of the Notes on a full and unconditional senior unsecured basis with such limitations as are set forth in the Triggering Guarantee.
(a) Subject Each Domestic Subsidiary that is required to the provisions of this Article Xdeliver a guarantee pursuant to subsection (a) above (each, each Subsidiary Guarantor a “Guarantor”) hereby jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, on as a senior basis, as guarantor primary obligor and not merely as a surety, with to each other Guarantor, Holder and to the Trustee (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration acceleration, by redemption or otherwise, of all Obligations obligations of the Issuers Company under this the Indenture (including obligations to the Trustee) and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the TrusteeNotes, whether for payment of principal of, premium, if any, or interest on in respect of the NotesNotes and all other monetary obligations of the Company under the Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under the Indenture and the Notes (all such obligations guaranteed by such Subsidiary Guarantors the foregoing being herein hereinafter collectively called the “Guaranteed Obligations” and each such guarantee, a “Guarantee”). Each Subsidiary Guarantor further agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from itany Guarantor, and that it will each Guarantor shall remain bound under this Article X 6 notwithstanding any extension or renewal of any Subsidiary Guarantor Guaranteed Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuers Company of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder 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 the Company or any other Person under the Indenture, the Notes or any other agreement or otherwise; (ii) any extension or renewal of the Indenture, the Notes or any other agreement; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of the Indenture, the Notes or any other agreement; (iv) the failure of any Holder or Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (v) any change in the ownership of each Guarantor, except as provided in Section 6.02(b) or Section 6.02(c). Each Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Guarantors, such that such Guarantor’s obligations would be less than the full amount claimed.
(c) Each Subsidiary Guarantor hereby waives any right to which it may be entitled to have the assets of the Company first be used and depleted as payment of the Company’s or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder. Each Guarantor hereby waives any right to which it may be entitled to require that the Company be sued prior to an action being initiated against such Guarantor.
(d) Each Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee guarantee of payment when due (and not a Guarantee guarantee of collection) and waives any right to require that any resort be had by any Holder holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(de) The Guarantee of each Guarantor is, to the extent and in the manner set forth in Article 6, equal in right of payment to all existing and future pari passu Indebtedness, senior in right of payment to all existing and future subordinated Indebtedness of the Company and subordinated and subject in right of payment to the prior payment in full of the principal of and premium, if any, and interest on all secured Indebtedness of the relevant Guarantor and is made subject to such provisions of the Indenture.
(f) Except as expressly set forth in Section 10.2 Article 12 of the Base indenture and Article VIII6.02 and 6.06 of this Supplemental Indenture, the obligations of each Subsidiary Guarantor hereunder will shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and will shall not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will shall not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder holder or the Trustee to assert any claim or demand or to enforce any right or remedy against under the Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (ii) agreement, by any extension or renewal of any thereof; (iii) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenturethereof, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; obligations, or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such any Guarantor as a matter of law or equity.
(eg) Each Subsidiary Guarantor agrees that its Subsidiary Note Guarantee herein will shall remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIIIObligations. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will 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, premium, if any, of or interest on any of the Guaranteed Obligations Obligation is rescinded or must otherwise be restored by any Holder holder or the Trustee upon the bankruptcy or reorganization of the Issuers Company or otherwise.
(fh) 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 any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers Company to pay the principal of or interest on any of the Guaranteed Obligations Obligation when and as the same will shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and willshall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations then due and owing and Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after iii) all other monetary obligations of the filing of any petition in bankruptcy or Company to Holders and the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)Trustee.
(gi) Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between such Subsidiary Guarantorit, on the one hand, and Holders and the HoldersTrustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee hereby may be accelerated as provided in this Indenture Article VI for the purposes of its Subsidiary the Guarantee in this Guaranteeherein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee hereby, and (ii) in the event of any such declaration of acceleration of such Guaranteed ObligationsObligations as provided in Article VI, such Guaranteed Obligations (whether or not due and payable) will shall forthwith become due and payable by the Guarantor Guarantors for the purposes of this Subsidiary GuaranteeSection 6.01.
(hj) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ feesfees and expenses) incurred by the Trustee or the Holders any holder in enforcing any rights under this GuaranteeSection 6.01.
(ik) No Issuers Upon request of the Trustee, each Guarantor shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the Subsidiary Guarantors will be purpose of the Indenture.
(l) The foregoing is subject to any limitations required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guaranteeby applicable law.
Appears in 2 contracts
Sources: Second Supplemental Indenture (Wyndham Destinations, Inc.), First Supplemental Indenture (Wyndham Destinations, Inc.)
Guarantees. (a) Subject to Each of the provisions of this Article XGuarantors hereby fully, each Subsidiary Guarantor hereby jointly unconditionally and severallyirrevocably guarantees, irrevocably, fully as primary obligor and unconditionally guaranteesnot merely as surety, on a senior basisbasis to each Holder of a Note authenticated by the Trustee or the Authenticating Agent and to the Trustee, as guarantor the Security Agent and not as a surety, with the Polish Security Agent and each other Guarantor, of their successors and assigns the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, prompt performance of all Obligations of the Issuers Issuer’s obligations (including the Parallel Obligations) under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, and premium, if any, or and interest on the Notes and all other obligations of the Issuer to the Holders, the Trustee, the Security Agent and the Polish Security Agent hereunder and under the Notes, expenses, indemnification or otherwise (all such . The obligations guaranteed by such Subsidiary Guarantors being herein called of the Issuer under this Indenture and Notes shall be referred to in this Article X as the “Guaranteed Obligations”). The obligations of each of the Guarantors set forth in this Article X shall be referred to herein as the “Guarantees.” The Guarantees shall rank pari passu in right of payment to all existing and future senior Indebtedness of the Guarantors, and shall be senior in right of payment to all existing and future Indebtedness of the Guarantors that is expressly subordinated to the Guarantees. Each Subsidiary Guarantor further agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewedrenewed by the Trustee for and on behalf of itself and the Holders, the Security Agent and the Polish Security Agent in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (an amount equal to the extent lawfulsum of (i) the unpaid amount of the Obligations then due and owing and (ii) accrued and unpaid interest on the Obligations then due and owing. Payments made under the Guarantees shall be made to the Trustee on behalf of the Holders, the Security Agent or the Polish Security Agent, as the case may be. The Guarantors waive presentation to, demand of, of payment from and protest to the Issuers Issuer of any of the Guaranteed Obligations and also waives (to the extent lawful) waive notice of protest for nonpayment. Each Subsidiary Guarantor of the Guarantors waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
. The obligations of each Guarantor hereunder shall not be affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuer or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any Liens on the Collateral held by any Holder, the Security Agent or the Polish Security Agent or the Trustee for the Obligations or any of them; or (e) any change in the ownership of the Issuer. Each Subsidiary Guarantor further agrees that its Subsidiary each Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the . The obligations of each Subsidiary Guarantor of the Guarantors hereunder will shall, subject to this Article X and Article VIII (Defeasance and Satisfaction and Discharge of Indenture), not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will shall not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will shall, subject to this Article X and Article VIII (Defeasance and Satisfaction and Discharge of Indenture), not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (ii) agreement, by any extension or renewal of any thereof; (iii) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenturethereof, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; , or (viii) 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 any Subsidiary a Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) . Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein is a confirming Guarantee and will remain in full force and effect until payment in full of all of the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Obligations. Subject to the provisions of Section 4.110.4 (Release) hereof, Section 10.2 and Article VIII. Each Subsidiary each Guarantor further agrees that its Subsidiary Guarantee herein will 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, premium, if any, of or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers Issuer or otherwise.
. Subject to the provisions of Section 10.3 (fNo Subrogation) In hereof, in furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor the Guarantors, by virtue hereof, upon the failure of the Issuers Issuer to pay any of the Guaranteed Obligations when and as the same will shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee for and on behalf of itself and the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) owing. Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantorit, on the one hand, and the Holders, on the other hand, but subject always to Sections 10.2 (iLimitation of Guarantees) hereof, (x) the maturity of the Guaranteed Obligations guaranteed by this Guarantee hereby may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guaranteethe Guarantees herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will shall forthwith become due and payable by the Guarantor Guarantors for the purposes of this Subsidiary Guarantee.
(h) the Guarantees. Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or Trustee, the Security Agent, the Polish Security Agent and/or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.Article X.
Appears in 2 contracts
Sources: Indenture (Central European Distribution Corp), Indenture (Central European Distribution Corp)
Guarantees. Each Guarantor (aother than the QC Guarantors, who provide a guarantee of collection only and not a guarantee of performance or payment) Subject to the provisions of this Article Xhereby unconditionally guarantees, each Subsidiary Guarantor hereby jointly and severally, irrevocably, fully to each Holder and unconditionally guarantees, on a senior basis, as guarantor to the Trustee and not as a surety, with each other Guarantor, its successors and assigns (a) the full and punctual payment of principal of (and premium, if any) and interest on the Notes when due, whether at Stated Maturity, by acceleration acceleration, by redemption or otherwise, and all Obligations other monetary obligations of the Issuers Issuer under this Indenture the Note Documents and (b) the Notes full and punctual performance within applicable grace periods of all other obligations of the Issuer under the Note Documents (including interest that, but for all the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors foregoing being herein hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from itsuch Guarantor, and that it such Guarantor will remain bound under this Article X 12 notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) . Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers Issuer of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
. The obligations of each Guarantor hereunder shall not be affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Obligations of any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any Guarantor of the Obligations; or (f) any change in the ownership of such Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Note Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee 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.
(d) . Except as expressly set forth in Section 10.2 Sections 7.05, 7.06, 9.14, 11.02, 11.03, 12.03 and Article VIII12.08, the obligations of each Subsidiary Guarantor hereunder will shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and will shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantee of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will shall not (to the extent lawful) be discharged or impaired or otherwise 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 the Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (ii) agreement, by any extension or renewal of any thereof; (iii) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenturethereof, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; obligations, or (viii) 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 any Subsidiary such Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Note Guarantee herein will 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, of (or premium, if any, ) or interest on any of the Guaranteed Obligations Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuers Issuer or otherwise.
(f) . 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 any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers Issuer to pay the principal of (or premium, if any) or interest on any of the Guaranteed Obligations Obligation when and as the same will shall become due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Obligation, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) and (including interest accruing after iii) all other monetary Obligations of the filing Issuer to the Holders and the Trustee. Each Guarantor agrees that it shall not be entitled to any right of subrogation in respect of any petition Obligations guaranteed hereby until payment in bankruptcy or the commencement full in cash of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) all Obligations. Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantorit, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (ix) the maturity of the Guaranteed Obligations guaranteed by this Guarantee hereby may be accelerated as provided in this Indenture Article 5 for the purposes of its Subsidiary such Guarantor’s Note Guarantee in this Guaranteeherein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee hereby, and (iiy) in the event of any such declaration of acceleration of such Guaranteed ObligationsObligations as provided in Article 5, such Guaranteed Obligations (whether or not due and payable) will shall forthwith become due and payable by the such Guarantor for the purposes of this Subsidiary Guarantee.
(h) Section 12.01. Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders any Holder in enforcing any rights under this Guarantee.
Section 12.01. The Issuer shall cause each of its direct and indirect Subsidiaries that is not an Excluded Subsidiary and that guarantees or becomes a borrower under any First Lien Obligations to execute and deliver to the Trustee, within 30 days of such event (which such period will be automatically extended in 30 day increments so long as the Issuer uses commercially reasonable efforts), a supplemental indenture substantially in the form of Exhibit B hereto pursuant to which such Subsidiary will guarantee the Obligations. For the avoidance of doubt, no Excluded Subsidiary shall be required to guarantee the Obligations, become a party to the Collateral Agreement or any other Collateral Document or create Liens on its assets to secure the Obligations. Notwithstanding anything to the contrary contained herein (but subject to the following paragraph), if a person is required to become a Guarantor pursuant to this Indenture, none of the Issuer or any Subsidiary shall be required to submit any application or filing or otherwise take any action to obtain any authorization or consent of any federal or state Governmental Authority required in order to cause such person to become a Guarantor (and the requirement to provide such a Guarantee shall be tolled), in each case, to the extent an authorization or consent of such federal or state Governmental Authority is determined by the Issuer to be sought in respect of any Material Transaction or any financing relating thereto and has not yet been obtained; provided that (i) No Issuers such person is not submitting any application or filing or otherwise taking any action to obtain any authorization or consent of any federal or state Governmental Authority required in order to cause such person to Guarantee any First Lien Obligation (other than the Subsidiary Guarantors will be required Notes) or Junior Lien Obligation and (ii) at the time such federal or state Governmental Authority has approved such Material Transaction, the application, filing or other action to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and obtain any such notation will not authorization or consent of any federal or state Governmental Authority required in order to cause any person to become a Guarantor shall promptly be made. Notwithstanding the foregoing, the guarantee of the QC Guarantors shall be a condition to the validity guarantee of any Guarantee.collection only and not a guarantee of performance or payment
Appears in 2 contracts
Sources: Indenture (Qwest Corp), Indenture (Qwest Corp)
Guarantees. (a) Subject to the provisions of this Article X, each Subsidiary Each Guarantor hereby jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, on as a senior basis, as guarantor primary obligor and not merely as a surety, with to each other Guarantor, Holder and to the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration acceleration, by redemption or otherwise, of all Obligations obligations of the Issuers Issuer under this Indenture (including obligations to the Trustee) and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the TrusteeNotes, whether for payment of principal of, premium, if any, or interest on or additional interest in respect of the NotesNotes and all other monetary obligations of the Issuer under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Issuer whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes (all such obligations guaranteed by such Subsidiary Guarantors the foregoing being herein hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it will each such Guarantor shall remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Guaranteed Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuers Issuer of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder 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 the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (ii) any extension or renewal of this Indenture, the Notes or any other agreement; (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 Guaranteed Obligations or any Guarantor; (v) the failure of any Holder or Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (vi) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
(c) Each Subsidiary Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Guarantors, such that such Guarantor’s obligations would be less than the full amount claimed. Each Guarantor hereby waives any right to which it may be entitled to have the assets of the Issuer first be used and depleted as payment of the Issuer’s or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder. Each Guarantor hereby waives any right to which it may be entitled to require that the Issuer be sued prior to an action being initiated against such Guarantor.
(d) Each Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee 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.
(de) Except as expressly set forth in Section 10.2 Sections 8.01, 9.01, 10.02 and Article VIII10.06, the obligations of each Subsidiary Guarantor hereunder will shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and will shall not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will shall not (to the extent lawful) be discharged or impaired or otherwise 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 the Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (ii) agreement, by any extension or renewal of any thereof; (iii) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenturethereof, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; obligations, or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such any Guarantor as a matter of law or equity.
(ef) Each Subsidiary Except as expressly set forth in Sections 8.01, 9.01 and 10.02, each Guarantor agrees that its Subsidiary Guarantee herein will shall remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee Obligations. Except as expressly set forth in compliance with Section 4.1Sections 8.01, Section 10.2 9.01 and Article VIII. Each Subsidiary 10.02, each Guarantor further agrees that its Subsidiary Guarantee herein will 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, premium, if any, of or interest on any of the Guaranteed Obligations Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuers Issuer or otherwise.
(fg) 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 any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers Issuer to pay the principal of or interest on any of the Guaranteed Obligations Obligation when and as the same will shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and willshall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations then due and owing and Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after iii) all other monetary obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating Issuer to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed Holders and the Trustee in such proceeding)respect of the Guaranteed Obligations.
(gh) Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between such Subsidiary Guarantorit, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee hereby may be accelerated as provided in this Indenture Article 6 for the purposes of its Subsidiary any Guarantee in this Guaranteeherein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee hereby, and (ii) in the event of any such declaration of acceleration of such Guaranteed ObligationsObligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) will shall forthwith become due and payable by the such Guarantor for the purposes of this Subsidiary GuaranteeSection.
(hi) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ feesfees and expenses) incurred by the Trustee or the Holders any Holder in enforcing any rights under this GuaranteeSection.
(ij) No Issuers Upon request of the Trustee, each Guarantor shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the Subsidiary Guarantors will purpose of this Indenture.
(k) Any Guarantee given by any Parent of the Issuer may be required to make a notation on the Notes to reflect released at any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition time upon written notice to the validity Trustee from such Parent of any Guaranteethe Issuer.
Appears in 2 contracts
Sources: Indenture (Intelsat LTD), Indenture (Intelsat CORP)
Guarantees. (a) Subject to the provisions of this Article XThe Guarantors, each Subsidiary Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior basisseverally guarantee, as guarantor a primary obligor and not as a surety, with each other Guarantorto the Lender and its permitted successors and assigns, the prompt payment in full and punctual payment when due, due (whether at Stated Maturityscheduled payment date, by acceleration required repayment or otherwise, all Obligations ) of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect Obligations from time to time owing to the Issuers, would have accrued on Lender by any Obligation, whether or not a claim is allowed against Guarantor under any Loan Document strictly in accordance with the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise terms thereof (all such obligations guaranteed by such Subsidiary Guarantors being herein collectively called the “"Guaranteed Obligations”"). Each Subsidiary The Guarantors hereby jointly and severally agree that if the Borrower or any other Guarantor agrees shall fail to pay in full when due (to the extent lawfulwhether at scheduled payment date, by required repayment or otherwise) that any of the Guaranteed Obligations may be extended or renewedObligations, the Guarantors will promptly pay the same in whole or in partcash, without any demand or notice or further assent from itwhatsoever, and that it will remain bound under this Article X notwithstanding in the case of any extension of time of payment or renewal of any Subsidiary Guarantor Obligationof the Guaranteed Obligations, the same will be promptly paid in full when due (whether at scheduled payment date, by requirement prepayment or otherwise) in accordance with the terms of such extension or renewal.
(b) Each Subsidiary Guarantor waives (The obligations of the Guarantors under Section 10.01(a) shall constitute a guaranty of payment and to the fullest extent lawful) presentation topermitted by applicable Law, demand ofare absolute, payment from irrevocable and protest unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Borrower and the Guarantors under this Agreement or any other agreement or instrument referred to the Issuers herein or therein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice Obligations, and, irrespective of any default under the Notes other circumstance whatsoever that might otherwise constitute a legal or the Guaranteed Obligations.
equitable discharge or defense of a surety or Guarantor (c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held except for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, it is agreed that the obligations occurrence of each Subsidiary Guarantor herein will any one or more of the following shall not (to alter or impair the extent lawful) be discharged or impaired or otherwise affected by liability of the Guarantors hereunder which shall remain absolute, irrevocable and unconditional under any and all circumstances as described above:
(i) at any time or from time to time, without notice to the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers or any other Person under this IndentureGuarantors, the Notes time for any performance of or compliance with any of the Guaranteed Obligations shall be extended, or such performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of this Agreement or any other agreement or otherwise; (ii) any extension instrument referred to herein or renewal of any thereof; therein shall be done or omitted;
(iii) any rescission, waiver, amendment or modification the scheduled payment date of any of the terms Guaranteed Obligations shall be accelerated, or provisions any of this Indenturethe Guaranteed Obligations shall be amended in any respect, or any right under the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement Transaction Documents or any other Notes Document; agreement or instrument referred to herein or therein shall be amended or waived in any respect or any other guarantee of any of the Guaranteed Obligations or any security therefor shall be released or exchanged in whole or in part or otherwise dealt with;
(iv) any Lien or security interest granted to, or in favor of, the Lender as security for any of the Guaranteed Obligations shall fail to be perfected; or
(v) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder other Guarantor pursuant to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding10.01(h).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 2 contracts
Sources: Loan Agreement (Raptor Pharmaceutical Corp), Loan Agreement (Raptor Pharmaceutical Corp)
Guarantees. (a) Subject to the provisions of this Article X, each Subsidiary Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, to the extent lawful, and the Trustee, the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration acceleration, by redemption or otherwise, all Obligations of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or and interest on the NotesNotes and all other Obligations of the Issuer under this Indenture and the Notes (including, expenseswithout limitation, indemnification interest accruing after the filing of any petition in bankruptcy, or otherwise the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all such obligations guaranteed by such Subsidiary Guarantors the foregoing being herein hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will shall remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Guarantor Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will shall not (to the extent lawful) be discharged or impaired or otherwise affected by (ia) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (iib) any extension or renewal of any thereof; (iiic) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Documentagreement; (ivd) the release of any security held by any Holder for the Guaranteed Guarantor Obligations or any of them; (ve) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vif) any change in the ownership of the IssuersIssuer; (viig) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Guarantor Obligations; or (viiih) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will shall remain in full force and effect until payment in full of all the Guaranteed Guarantor Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal ofprincipal, premium, if any, or interest on any of the Guaranteed Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers Issuer to pay any of the Guaranteed Guarantor Obligations when and as the same will shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and willshall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuers Issuer or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed by this Guarantee hereby may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guaranteeherein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed by this Guarantee hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Guarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) will shall forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this GuaranteeSection.
(i) No Issuers or Neither the Subsidiary Issuer nor the Guarantors will shall be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 2 contracts
Sources: Indenture (Mattel Inc /De/), Indenture (Mattel Inc /De/)
Guarantees. (a) Subject For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, subject to the provisions of this Article XSection 11.07, each of the Guarantors, together with each Subsidiary Guarantor of the Company which in accordance with Section 11.08 is required in the future to guarantee the Obligations of the Company and the Guarantors under the Securities, the Guarantees and this Indenture upon execution of a supplemental indenture, hereby jointly and severally, irrevocably, fully severally and irrevocably and unconditionally guaranteesguarantees to the Trustee and to each Holder of a Security authenticated and delivered by the Trustee irrespective of the validity or enforceability of this Indenture or the Securities or the Obligations of the Company and the Guarantors under this Indenture, that: (i) the principal of, premium, if any, and any interest, on the Securities (including, without limitation, any interest that accrues after the filing of a senior basisproceeding of the type described in Sections 6.01(g) and (h)) and any reasonable fees, as guarantor expenses and not as a surety, with each other Guarantor, the amounts owing under this Indenture will be duly and punctually paid in full and punctual payment when due, whether at Stated Maturity, by acceleration acceleration, call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase or otherwise, and interest on the overdue principal and (to the extent permitted by law) interest, if any, on the Securities and any other amounts due in respect of the Securities, and all other Obligations of the Issuers Company and the Guarantors to the Holders of the Securities under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any ObligationSecurities, whether now or not a claim is allowed against hereafter existing, will be promptly paid in full or performed, all strictly in accordance with the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from itterms hereof, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwiseSecurities; (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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event case of any such declaration extension of acceleration time of payment or renewal of any Securities or any of such Guaranteed other Obligations, such Guaranteed Obligations (the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration, call for redemption, upon Change of Control Offer, Asset Sale Offer, purchase or otherwise. If payment is not made when due of any amount so guaranteed for whatever reason, each Guarantor shall be jointly and severally obligated to pay the same individually whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees such failure to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guaranteehas become an Event of Default which could cause acceleration pursuant to Section 6.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 2 contracts
Sources: Indenture (Trend Drilling Co), Indenture (Nabors Industries Inc)
Guarantees. (a) Subject Vale hereby absolutely, unconditionally and irrevocably guarantees in favour of the Purchaser the payment of all monetary liabilities and obligations of the Seller under this Agreement including any damages or Losses owing by the Seller pursuant to this Agreement on account of a breach by the Seller of any of its representations or warranties given under this Agreement or pursuant to a certificate delivered pursuant hereto or a breach by Seller of its covenants or other obligations under this Agreement (collectively, the “Vale Guaranteed Obligations”). Vale agrees that all amounts owing by Vale under this Section 11.1(a) shall be payable by Vale to the Purchaser promptly after receipt of written demand from the Purchaser (a “Payment Demand”) following the occurrence of a Vale Entity Event of Default that is continuing. Vale shall not be required to make any such payments hereunder in respect of any amount owed by the Seller to the Purchaser pursuant to Section 2.5 which has been validly asserted and set off pursuant to Section 15.4.
(b) The Project Owner hereby absolutely, unconditionally and irrevocably guarantees in favour of the Purchaser the prompt and complete payment, observance and performance of all liabilities and obligations of the Seller under this Agreement including any damages or Losses owing by the Seller pursuant to this Agreement on account of a breach by the Seller of any of its representations or warranties given under this Agreement or pursuant to a certificate delivered pursuant hereto or a breach by Seller of its covenants or other obligations under this Agreement (collectively, the “Project Owner Guaranteed Obligations”). The Project Owner shall promptly upon demand by the Purchaser observe, pay and perform such Project Owner Guaranteed Obligations upon the default or non-performance thereof by the Seller pursuant to the provisions of this Article X, each Subsidiary Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with each other Guarantor, the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations Agreement.
(c) The foregoing agreements of the Issuers under this Indenture Guarantors are absolute, unconditional, present and the Notes Documents (including interest thatcontinuing and are in no way conditional or contingent upon any event, but for the filing of a petition circumstance, action or omission which might in any bankruptcy way discharge a guarantor or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, surety in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth Each Payment Demand shall identify the relevant breach by the Seller of its obligations under this Agreement; provided that failure by the Purchaser to provide such information shall not relieve Vale of its obligation to pay in accordance with Section 11.1(a).
(e) For greater certainty, the guarantee described in Section 10.2 11.1(a) is a guarantee of payment only, and not of performance. Nothing contained in this Article VIII11 shall oblige Vale to perform, or refrain from performing, or to procure the obligations performance or non-performance of each Subsidiary Guarantor hereunder will not be subject to the Guaranteed Obligations or any reduction, limitation, impairment or termination part thereof save for any reason (other than the payment of money in respect of the breach of the Guaranteed Obligations in fullaccordance with the terms of Section 11.1(a). Nothing contained in this Article 11 shall oblige Vale to carry out, discharge or perform, or procure the carrying-out, discharging or performance of, any other obligations of the Seller or the Project Owner to the Purchaser.
(f) Each Guarantor, as principal obligor and as a separate and independent obligation and liability from its obligations and liabilities under Section 11.1(a) or 11.1(b), including as applicable, agrees to indemnify and keep indemnified the Purchaser in full from and against all and any claim Losses suffered or incurred by the Purchaser arising out of, or in connection with:
(i) any failure of waiver, release, surrender, alteration the Seller to perform or compromise, and will not discharge the Guaranteed Obligations; or
(to the extent lawfulii) be subject to total or partial unenforceability of any defense of setoff, counterclaim, recoupment or termination whatsoever or Guaranteed Obligation by reason of illegality, incapacity, lack or exceeding of powers, ineffectiveness of execution or otherwise (a “Lack of Enforceability”), and each Guarantor agrees that all indemnified amounts owing by such Guarantor under this Section 11.1(f) shall be payable by such Guarantor to the invalidity, illegality or unenforceability Purchaser promptly upon demand by the Purchaser.
(g) The obligations of the Guaranteed Obligations or otherwise. Without Guarantors under this Section 11.1 are continuing, unconditional and absolute and, without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired released, discharged, limited or otherwise affected by (and each of the Guarantors hereby consents to or waives, as applicable, to the fullest extent permitted by Applicable Law):
(i) the failure any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination or release in respect of any Holder of the Guaranteed Obligations;
(ii) any modification or amendment of or supplement to assert the Guaranteed Obligations, including any claim increase or demand decrease in the amounts payable thereunder including any amendment to this Agreement (other than this Section 11.1) for which the Guarantors’ consent was not obtained;
(iii) any release, non-perfection or to enforce invalidity of any right direct or remedy against indirect security for any Guaranteed Obligations;
(iv) any Insolvency Event affecting the Issuers Seller, any Guarantor or any other Person under this Indentureor their property;
(v) any Change of Control of the Seller, the Notes any Guarantor or any other agreement Person, or otherwise; any Transfer of all of or any part of the Seller, the Project Owner or Vale’s interest in this Agreement or in any Guaranteed Obligations;
(iivi) subject to the right of the Guarantors under the proviso immediately following Section 11.1(g)(xxii),the existence of any claim, set off or other rights which the Guarantors may have at any time against the Seller, the Purchaser or any other Person;
(vii) any extension invalidity, illegality or renewal unenforceability relating to or against the Seller or any Guarantor or any provision of Applicable Law or regulation purporting to prohibit the payment by the Seller or any Guarantor of any thereof; amount in respect of the Guaranteed Obligations;
(iiiviii) any rescissionlimitation, waiverpostponement, amendment prohibition, subordination or modification other restriction on the rights of the Purchaser to payment of the Guaranteed Obligations;
(ix) any Transfer by the Project Owner of its right, title or interest in and to any of the terms or provisions of this IndentureProject Assets, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; action taken or not taken by the Project Owner;
(ivx) any release, substitution or addition of any co-signer, endorser or other guarantor of the Guaranteed Obligations except to the extent that this Agreement expressly provides for a release or replacement of the Guarantors from the Guaranteed Obligations in such circumstances;
(xi) any defence arising by reason of any failure of the Purchaser to make any presentment, demand for performance, notice of non-performance, protest or any other notice, including notice of acceptance of this Agreement, partial payment or non-payment of any Guaranteed Obligations or the existence, creation or incurring of new or additional Guaranteed Obligations;
(xii) any defence arising by reason of any failure of the Purchaser to proceed against the Seller, any Guarantor or any other Person, to apply or exhaust any security held by from the Seller, any Holder Guarantor or any other Person for the Guaranteed Obligations, or to pursue any other remedy of the Purchaser whatsoever;
(xiii) any Applicable Law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(xiv) any defence arising by reason of any incapacity, lack of authority, or other defence of the Seller, any Guarantor or any other Person, or by reason of any limitation, postponement, prohibition on the Purchaser’s right to payment of any Guaranteed Obligations, or by reason of the cessation from any cause whatsoever of the liability of the Seller, any Guarantor or any other Person in respect of any Guaranteed Obligations, or by reason of any act or omission of the Purchaser or others which directly or indirectly results in the discharge or release of the Seller, any Guarantor or any other Person or all or any part of the Guaranteed Obligations, or any security or guarantee therefor, whether by contract, operation of Applicable Law or otherwise;
(xv) any defence arising by reason of any failure by the Purchaser to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller, any Guarantor or any other Person, or by reason of any interest of the Purchaser in any property, whether as supplier thereof or the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Purchaser of any right to recourse or collateral;
(xvi) any defence arising by reason of the failure of the Purchaser to marshal any property;
(xvii) any defence based upon any failure of the Purchaser to give to the Seller, any Guarantor or any other Person notice of any sale or other disposition of any property securing any Guaranteed Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of them; (v) the any such property, or any failure of the Purchaser to comply with any Holder Applicable Law in enforcing any security interest in or lien upon any such property, including any failure by the Purchaser to exercise dispose of any right such property in a commercially reasonable manner;
(xviii) any dealing whatsoever with the Seller, any Guarantor or remedy against any other Guarantor; Person or any security, whether negligently or not, or any failure of the Purchaser to take any action;
(vixix) any change Transfer by the Seller or Purchaser of this Agreement or any Guaranteed Obligations, in the ownership whole or in part;
(xx) any consolidation, amalgamation with, merger with or into, Transfer of assets (whether all or partial), continuance, reorganization, reincorporation, reconstitution as another entity, by or in respect of the Issuers; Seller or any other similar matter undertaken by Seller;
(viixxi) any defaultdefence based upon or arising out of any bankruptcy, failure insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or delaydissolution proceeding commenced by or against the Seller, willful any Guarantor or otherwiseany other Person, including any discharge of, or bar against collecting, any Guaranteed Obligations, in the performance or as a result of the Guaranteed Obligationsany such proceeding; or or
(viiixxii) any other act or thing or omission to act or delay to do of any kind by any the Seller, any Guarantor, the Purchaser, or any other act Person or thing any other circumstance whatsoever, whether similar or dissimilar to the foregoing, which may might, but for the provisions of this paragraph, constitute a legal or might in any manner equitable discharge, limitation or to any extent vary reduction of the risk obligations of any Subsidiary Guarantor hereunder (other than the payment or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment performance in full of all of the Guaranteed Obligations), provided that, notwithstanding anything to the contrary herein, each Guarantor expressly reserves the right to assert any counterclaim or setoff which the Seller is or would have been entitled to assert (other than defenses in respect of Lack of Enforceability).
(h) Without limiting the generality of the foregoing and without releasing, discharging, limiting or otherwise affecting in whole or in part any Guarantor's liability hereunder, without obtaining the consent of or giving notice to any Guarantor, the Purchaser may:
(i) grant time, renewals, extensions, indulgences, releases and discharges to the Seller;
(ii) take or abstain from taking or enforcing securities or collateral from the Seller or from perfecting securities or collateral of the Seller; and
(iii) accept compromises from the Seller.
(i) The provisions of this Section 11.1 apply (and the waivers set out herein will be effective) even if the effect of any action (or failure to take action) by the Purchaser is to destroy or diminish any subrogation rights of any Guarantor or any rights of any Guarantor to proceed against the Seller or any other Person for reimbursement or to recover any contribution from any other guarantor or any other right or remedy of the Guarantors.
(j) The Purchaser shall not be bound to exhaust its recourse against the Seller, any Guarantor or any other Persons or to realize on any security it may hold in respect of the Guaranteed Obligations before being entitled to payment or performance from the Guarantors under this Section 11.1 and each of the Guarantors hereby renounces all benefits of discussion and division.
(k) In the event of a breach of any of the Guaranteed Obligations, the Purchaser is entitled to make claim and to pursue its remedies in respect thereof against any one or any combination of the Seller and Guarantors as described in Section 11.1(a), provided that in no event shall the obligations of the Guarantors under this Section 11.1 be interpreted to allow the Purchaser to recover more from the Guarantors, the Seller or any combination of the payments from such Subsidiary Guarantor is released parties, than it could have recovered from its Subsidiary Guarantee the Seller in compliance respect of such breach (or would have been recoverable in the absence of any Lack of Enforceability or any Insolvency Event applicable to the Seller), net of any set-off that would be permitted in accordance with Section 4.1, 15.4 in respect of such breach.
(l) This Section 10.2 11.1 shall continue and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue apply to any ultimate unpaid or unperformed balance of the Guaranteed Obligations and shall be effective or be reinstated, as the case may be, reinstated if at any time payment, payment or any part thereof, performance of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored returned or reversed by any Holder the Purchaser upon the bankruptcy occurrence of an Insolvency Event applicable to the Seller or reorganization of the Issuers any Guarantor or otherwisefor any other reason whatsoever, all as though such payment or performance had not been made.
(fm) In furtherance of the foregoing and not in limitation of event that the Purchaser shall receive any other right which any Holder has at law payments or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any performance on account of the Guaranteed Obligations when and as from the same will become dueGuarantors, whether at maturity, by acceleration, by redemption the realization of any security or otherwise, each Subsidiary Guarantor the Guarantors shall have no right to make any claims for repayment or contribution or to exercise any rights of subrogation against any Vale Entity, and all such rights are hereby promises to expressly waived, until the Guaranteed Obligations have been fully and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be completely paid, in cash, to the Trustee performed or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)otherwise satisfied.
(gn) Each Subsidiary In the event of an Insolvency Event applicable to the Seller or any Guarantor further agrees that, as between such Subsidiary Guarantor, on or in the one hand, and event that the Holders, on the other hand, (i) the maturity Seller or Guarantor shall make a bulk sale of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes any of its Subsidiary Guarantee assets within the bulk transfer provisions of any applicable legislation or any composition with creditors or scheme of arrangement, the Purchaser shall have the right to rank in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration priority to the Guarantors for its claim in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) to receive all dividends or other payments in respect thereof until the event Guaranteed Obligations have been fully and completely paid, performed or otherwise satisfied, all without prejudice to its claim against the Guarantors who shall continue to be liable for any remaining unpaid or unperformed balance of any such declaration of acceleration of such the Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(ho) Each Subsidiary Guarantor also agrees to pay guarantee in this Article 11 is a continuing guarantee which shall remain in full force and effect notwithstanding any and all reasonable costs and expenses (including attorneys’ fees) incurred intermediate or partial satisfaction or performance of the Guaranteed Obligations by the Trustee Seller, any Guarantor or the Holders in enforcing any rights under this Guaranteeother Person.
(ip) No Issuers The liability of each Guarantor under this Article 11 shall not be reduced, discharged or otherwise adversely affected by any act, omission, matter or thing which would have discharged or affected the Subsidiary Guarantors will be required liability of such Guarantor had it been a principal obligor instead of a guarantor, or indemnifier, or by anything done or omitted by any Person which, but for this provision, might operate or exonerate or discharge such Guarantor or otherwise reduce or extinguish its liability under this Article 11; except to make a notation on the Notes extent such matters reduce the Guaranteed Obligations as against the Seller.
(q) Each Guarantor waives any right it may have to reflect any Subsidiary Guarantee require the Purchaser (or any releasetrustee or agent on its behalf) to proceed against or enforce any other right or claim for payment against the Seller before claiming from such Guarantor under this Article 11.
(r) Each guarantee in this Article 11 is in addition to and shall not affect nor be affected by or merge with any other judgment, termination security, right or remedy obtained or held by the Purchaser from time to time in respect of the discharge thereof and any such notation will not be a condition performance of the Guaranteed Obligations by the Seller.
(s) Without prejudice to the validity of any Guarantee.sequence and time periods for making demands, the Guarantors expressly wai
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement
Guarantees. (a) Subject to the provisions of this Article X, each Subsidiary Each Guarantor hereby jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, on as a senior basis, as guarantor primary obligor and not merely as a surety, with to each other Guarantor, Holder and to the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration acceleration, by redemption or otherwise, of all Obligations obligations of the Issuers Company under this Indenture (including obligations to the Trustee) and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the TrusteeNotes, whether for payment of principal of, premium, if any, or interest on the NotesNotes and all other monetary obligations of the Company under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes (all such obligations guaranteed by such Subsidiary Guarantors the foregoing being herein hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it will each such Guarantor shall remain bound under this Article X 11 notwithstanding any extension or renewal of any Subsidiary Guarantor Guaranteed Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers Company of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the . The obligations of each Subsidiary Guarantor hereunder will shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise 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 the Issuers Company 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Documentagreement; (iv) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (v) the failure of any Holder or Trustee to exercise any right or remedy against any other Guarantorguarantor of the Guaranteed Obligations; or (vi) any change in the ownership of such Guarantor, except as provided in Section 11.02(b).
(c) Each Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Issuers; Guarantors, such that such Guarantor’s obligations would be less than the full amount claimed. Each Guarantor hereby waives any right to which it may be entitled to have the assets of the Company first be used and depleted as payment of the Company’s or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder. Each Guarantor hereby waives any right to which it may be entitled to require that the Company be sued prior to an action being initiated against such Guarantor.
(viid) Each Guarantor further agrees that its Guarantee herein 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) The Guarantee of each Guarantor and all amounts payable thereunder is, to the extent and in the manner set forth in Article 12, subordinated and subject in right of payment to the prior Payment in Full of all Senior Indebtedness of the relevant Guarantor and is made subject to such provisions of this Indenture.
(f) Except as expressly set forth in Sections 10.01 and 11.02, the obligations of each Guarantor hereunder 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein 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 wilful or otherwise, in the performance of the Guaranteed Obligations; obligations, or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such any Guarantor as a matter of law or equity.
(eg) Each Subsidiary Except as expressly set forth in Sections 10.01 and 11.02, each Guarantor agrees that its Subsidiary Guarantee herein will shall remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIIIObligations. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will 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, premium, if any, of or interest on any of the Guaranteed Obligations Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuers Company or otherwise.
(fh) 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 any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers Company to pay the principal of or interest on any of the Guaranteed Obligations Obligation when and as the same will shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and willshall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations then due and owing and Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) and (including interest accruing after iii) all other monetary obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating Company to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)Holders and the Trustee.
(gi) Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations and all obligations to which the Guaranteed Obligations are subordinated as provided in Article 12. Each Guarantor further agrees that, as between such Subsidiary Guarantorit, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee hereby may be accelerated as provided in this Indenture Article 7 for the purposes of its Subsidiary any Guarantee in this Guaranteeherein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee hereby, and (ii) in the event of any such declaration of acceleration of such Guaranteed ObligationsObligations as provided in Article 7, such Guaranteed Obligations (whether or not due and payable) will shall forthwith become due and payable by the such Guarantor for the purposes of this Subsidiary GuaranteeSection 11.01.
(hj) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ feesfees and expenses) incurred by the Trustee or the Holders any Holder in enforcing any rights under this GuaranteeSection 11.01.
(ik) No Issuers Upon request of the Trustee, each Guarantor shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity purpose of any Guaranteethis Indenture.
Appears in 2 contracts
Sources: Indenture (Broadwing Inc), Indenture (Broadwing Communications Inc)
Guarantees. (a) Subject Prior to the provisions Closing, Seller and Purchaser shall, and shall cause their respective Affiliates to, reasonably cooperate and shall use their respective reasonable best efforts to, effective as of this Article Xthe Closing, each Subsidiary Guarantor hereby jointly and severallyterminate or cause to be terminated, irrevocably, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with each other Guarantoror cause Purchaser or one of its Affiliates to be substituted in all respects for Seller or any of its Affiliates (collectively, the full “Seller Guarantors”) in respect of all liabilities and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations obligations of the Issuers under Seller Guarantors under, any Seller Guarantee listed on Schedule 5.7 to this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor ObligationAgreement.
(b) Each Subsidiary Guarantor waives With respect to any Seller Guarantees listed on Schedule 5.7 to this Agreement that are not terminated or for which Purchaser or one of its Affiliates has not been substituted in all respects for the applicable Seller Guarantor(s) as provided in Section 5.7(a), (to the extent lawfuli) presentation Seller and Purchaser shall, and shall cause their respective Affiliates to, demand continue to reasonably cooperate and use their respective reasonable best efforts to terminate, or cause Purchaser or one of its Affiliates to be substituted in all respects for the Seller Guarantors in respect of, payment from all obligations and protest liabilities under any such Seller Guarantees, and (ii) Purchaser shall (A) obtain and maintain in effect (including through any replacement letters of credit) one or more letters of credit, in a form and substance reasonably satisfactory to Seller and effective as of the Issuers of Closing, to backstop any of the Guaranteed Obligations Seller Guarantors’ liabilities or obligations under any such Seller Guarantee, and also waives (B) not, and shall not permit any of its Affiliates to, (1) renew or extend the term of, (2) increase its obligations under, (3) transfer to the extent lawfulanother third party, or (4) notice amend in any manner, except as contemplated pursuant to clause (i) of protest this Section 5.7(b) or otherwise required by this Agreement, any Contract or other obligation for nonpayment. Each Subsidiary Guarantor waives which Seller or any of its Affiliates (including any Seller Guarantor) is or would reasonably be expected to the extent lawful) notice of be liable under any default under the Notes or the Guaranteed Obligationssuch Seller Guarantee.
(c) Each Subsidiary To the extent that any Seller Guarantor further agrees that has performance obligations or any other Liability under or related to any Seller Guarantee listed on Schedule 5.7 to this Agreement, in each case, if and to the extent related to the conduct of the Business or the operation of the Transferred Assets after the Closing, Purchaser shall (i) perform, pay and discharge, or cause one or more of its Subsidiary Guarantee herein constitutes a Guarantee Affiliates to perform, pay and discharge in all respects such obligations on behalf of payment when due such Seller Guarantor or (ii) otherwise use reasonable best efforts to take such actions as reasonably requested by Seller so as to put such Seller Guarantor in the same position as if Purchaser or one or more of its Affiliates, and not a Guarantee of collection) and waives any right to require that any resort be such Seller Guarantor, had by any Holder to any security held for payment of the Guaranteed Obligationsperformed or were performing such obligations.
(d) Except as set forth in For purposes of this Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise5.7, and will for the avoidance of doubt, “reasonable best efforts” shall not (to the extent lawful) be subject to any defense of setoffrequire Seller or Purchaser to, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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 cause any of the terms or provisions of this Indenture, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other handAffiliates to, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee make or accelerate any payment under any Indebtedness, Contract or other obligation for which a Seller Guarantor is or may be accelerated as provided in this Indenture for the purposes of its Subsidiary liable under any Seller Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee other amounts, provide other consideration or the Holders in enforcing otherwise grant any rights under this Guaranteeaccommodation to any third party.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Amgen Inc), Asset Purchase Agreement (Celgene Corp /De/)
Guarantees. 21.1 The US Guarantor hereby irrevocably guarantees to the Sellers the fulfilment of all of the Purchaser’s obligations under this agreement, should the Purchaser not fulfil them when due.
21.2 The obligations of the US Guarantor under this clause 21 shall survive termination of this agreement (a) Subject as to any obligations of the Sellers or the Purchaser (as relevant) which survive termination of this agreement, and (b) as to any obligations of the Sellers or the Purchaser (as relevant) which remained unsatisfied as of the termination of this agreement.
21.3 The US Guarantor hereby represents and warrants to the provisions of Sellers that
(a) the US Guarantor has the power to execute this Article X, each Subsidiary Guarantor hereby jointly agreement and severally, irrevocably, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with each other Guarantor, the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such validly perform its obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.hereunder;
(b) Each Subsidiary the US Guarantor waives (to is a corporation duly organized and validly existing under the extent lawful) presentation to, demand of, payment from and protest to the Issuers of any laws of the Guaranteed Obligations and also waives (to the extent lawful) notice State of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice Delaware, United States of any default under the Notes or the Guaranteed Obligations.America;
(c) Each Subsidiary the execution, delivery and performance by the US Guarantor further agrees that of its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers or any other Person under this Indenture, the Notes agreement do not violate or any other agreement or otherwise; (ii) any extension or renewal of any thereof; (iii) any rescission, waiver, amendment or modification of conflict with any of the terms or provisions of this Indenture, the Notes, certificate of incorporation or by-laws of the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; US Guarantor;
(ivd) the release execution, delivery and performance of any security held this agreement and the other documents contemplated hereby are within the corporate power and authority of the US Guarantor, have been duly authorized by any Holder all necessary corporate action on the part of the US Guarantor and constitute a valid and binding agreements for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy US Guarantor, enforceable against any other Guarantor; (vi) any change it in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.accordance with its terms;
(e) Each Subsidiary there is no claim, action, lawsuit, arbitration, judicial or administrative proceeding pending or, to the knowledge of the US Guarantor, threatened against the US Guarantor, which questions the valid execution, delivery or performance by the US Guarantor agrees that of its Subsidiary Guarantee herein will remain in full force obligations under this agreement or any of the other documents referred to herein, or the consummation by the US Guarantor of the transaction contemplated hereby.
(f) the US Guarantor has filed or furnished, as applicable, all required registration statements, prospectuses, reports, schedules, forms, statements and effect until payment in full of other documents (including exhibits and all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue other information incorporated by reference) required to be effective filed or be reinstatedfurnished, as applicable, by it with the US Securities and Exchange Commission (the SEC) since December 1, 2007. All such required registration statements, prospectuses, reports, schedules, forms, statements and other documents (including those that Parent may file subsequent to the date hereof until the Effective Time) are referred to herein as the SEC Reports. As of their respective dates, the SEC Reports (i) were prepared in accordance with and complied in all material respects with the requirements of the US Securities Act of 1933, as amended, or the US Securities Exchange Act of 1934, as amended (the Exchange Act), as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any and the rules and regulations of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereofSEC thereunder applicable to such SEC Reports, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing did not at the time they were filed (but only or if amended or superseded by a filing prior to the extent date of this Agreement then on the date of such filing) contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not prohibited by law) (including interest accruing after misleading. None of US Guarantor’s subsidiaries is required to file any forms, reports or other documents with the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).SEC;
(g) Each Subsidiary the financial statements of the US Guarantor further agrees thatincluded in the SEC Reports, as between such Subsidiary Guarantorof their respective dates, on the one hand, comply as to form in all material respects with applicable accounting requirements and the Holders, on the other hand, (i) the maturity published rules and regulations of the Guaranteed Obligations guaranteed SEC with respect thereto, have been prepared in accordance with United States generally accepted accounting principles (US GAAP) (except, in the case of unaudited statements, as permitted by this Guarantee Form 10-Q of the SEC) applied on a consistent basis throughout the periods indicated (except as may be accelerated indicated in the notes thereto) and fairly present the consolidated financial position of the US Guarantor and its consolidated subsidiaries as provided in this Indenture of the dates thereof and the consolidated results of their operations and cash flows for the purposes of its Subsidiary Guarantee in this Guaranteeperiods then ended (subject, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event case of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.unaudited statements to normal year-end adjustments);
(h) Each Subsidiary the US Guarantor also agrees has no material liabilities of the type required by US GAAP to pay any and all reasonable costs and expenses be reported in a balance sheet included in a Quarterly Report on Form 10-Q or Annual Report on Form 10-K other than (i) those required to be set forth or adequately provided for in the balance sheet included in the US Guarantor’s most recently filed Quarterly Report on Form 10-Q (including attorneys’ feesthe notes thereto, the “Balance Sheet”), or (ii) those incurred by in the Trustee or ordinary course of business since the Holders in enforcing any rights under this Guarantee.date of the Balance Sheet, consistent with past practices;
(i) No Issuers Except as disclosed in the SEC Reports, since the date of the most recent unaudited financial statements included in the SEC Reports and through the date of this agreement, there has not been (i) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the US Guarantor’s capital stock, (ii) any amendment of any provision of the certificate of incorporation or bylaws of, or of any material term of any outstanding security issued by, the US Guarantor, (iii) any material change in any method of accounting or accounting practice by the US Guarantor except for any such change required by a change in US GAAP, or (iv) any split, combination or reclassification of any of its capital stock or any issuance or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity authorization of any Guaranteeissuance of any other securities in respect of, in lieu of, or in substitution for shares of its capital stock..
21.4 The US Guarantor covenants and agrees that it shall not cancel the trading of its common stock on AIM prior to December 31, 2008.
21.5 The US Guarantor shall indemnify the Sellers against any Losses suffered by the Sellers resulting from any of the US Guarantor’s warranties being untrue or inaccurate.
Appears in 2 contracts
Sources: Agreement for the Sale and Purchase of Share Capital (Research Pharmaceutical Services, Inc.), Agreement for the Sale and Purchase of Share Capital (Research Pharmaceutical Services, Inc.)
Guarantees. (a) Subject The Company shall from time to the provisions of this Article X, time (i) cause each Subsidiary Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guaranteesof the Company that is not an Excluded Subsidiary to become, on a senior basisthe Issue Date or, as guarantor and if such Subsidiary is acquired or created after the Issue Date or such Subsidiary was an Excluded Subsidiary but thereafter is not as a suretyan Excluded Subsidiary, with each other Guarantor, at the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations later of (A) the time of the Issuers acquisition, creation or change in status of such Subsidiary and (B) the time at which such Subsidiary Incurs Indebtedness or such Subsidiary guarantees or secures any Indebtedness of the Company, a guarantor of the obligations of the Company under this Indenture and the Notes Documents by executing this Indenture (including interest that, but for directly or by supplemental indenture) as a Subsidiary Guarantor or by executing a Guarantee in substantially the filing form of Article 15 (provided that the provision of a petition in Guaranty by a Subsidiary after the Issue Date shall be subject to compliance with any bankruptcy or other insolvency proceeding with respect applicable Gaming Laws and the Company agrees that (subject to Section 12.7(b)) it shall not have any such Subsidiary that is not an Excluded Subsidiary unless it is permitted to give such Guarantee under applicable Gaming Laws) and (ii) deliver to the IssuersTrustee an Opinion of Counsel, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) form reasonably satisfactory to the Holders and the Trustee, whether for payment that such Guarantee is the valid, binding and enforceable obligation of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (Guarantor, subject to the extent lawful) that the Guaranteed Obligations may be extended or renewedcustomary exceptions for bankruptcy, in whole or in part, without notice or further assent from it, fraudulent transfer and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligationequitable principles.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as The actions set forth in Section 10.2 and Article VIII12.7(a) shall be taken within 10 days of the time on which any Person is required to become a Subsidiary Guarantor, provided that if such Person is not permitted to give a Guarantee under applicable Gaming Laws, then, unless such Person has become a guarantor of the obligations Credit Facilities, any Existing Senior Notes or any Additional Notes, such period shall be extended as long as the Company continues to use best efforts to obtain the requisite consents for such Guarantee from the applicable Gaming Authority. Each Note issued after the date of each execution by any additional Subsidiary Guarantor hereunder will not of a Guarantee shall be subject to any reductionendorsed with a form of Guarantee that has been executed by such Subsidiary Guarantor. However, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder Note to assert have endorsed thereon a Guarantee executed by such Subsidiary Guarantor shall not affect the validity or enforceability of such Guarantee. In the case of a Subsidiary that becomes a Subsidiary Guarantor after the Issue Date as a result of its guarantee of Indebtedness of the Company (and not as a result of its Incurrence of Indebtedness), if such Subsidiary thereafter no longer guarantees any claim or demand or Indebtedness and has not Incurred any Indebtedness, then, upon delivery by the Company to enforce any right or remedy against the Issuers or any other Person under this IndentureTrustee of an Officers' Certificate and an Opinion of Counsel, to the effect that such conditions to release of the Subsidiary Guarantee by such Subsidiary have been satisfied, the Notes or Trustee shall execute 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) documents reasonably required in order to evidence the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that Obligations under its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 2 contracts
Sources: Indenture (MGM Mirage), Indenture (MGM Mirage)
Guarantees. (a) Subject to Each of the provisions of this Article XGuarantors, each Subsidiary Guarantor as primary obligor and not merely as surety, hereby jointly and severally, irrevocably, irrevocably and fully and unconditionally guaranteesguarantee to each Holder of the Senior Notes and to the Trustee and its successor and assigns (each, a "Guarantee") on a senior basisan unsecured, as guarantor unsubordinated basis and not as a suretyequal in right of payment to all existing and future unsecured, with each other unsubordinated indebtedness of such Guarantor, the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, due of all Obligations monetary obligations of the Issuers Company under this the Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceedingSenior Notes) to the Holders and the TrusteeSenior Notes, whether for payment principal of principal of, premium, if any, or interest on the Senior Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary The obligations of each Guarantor waives (shall be limited to the extent lawful) presentation tomaximum amount as shall, demand of, payment after giving effect to all other contingent and fixed liabilities of such Guarantor and after giving effect to any collections from and protest to the Issuers or payments made by or on behalf of any other Guarantor in respect of the Guaranteed Obligations and also waives (to obligations of such other Guarantor under its Guarantee, result in the extent lawful) notice obligations of protest for nonpayment. Each Subsidiary such Guarantor waives (to the extent lawful) notice of any default under the Notes Guarantee not constituting a fraudulent conveyance or the Guaranteed Obligationsfraudulent transfer under applicable law, or being void or unenforceable under any law relating to insolvency of debtors.
(c) Each Subsidiary Guarantor further agrees that (to the fullest extent permitted by law) its Subsidiary Guarantee herein constitutes a Guarantee obligations hereunder shall be unconditional, irrespective of payment when due (and not a Guarantee the validity, regularity or enforceability of collection) and waives the Indenture, the Senior Notes or the obligations of the Company or any right other Guarantor hereunder or thereunder, the absence of any action to require that enforce the same, any resort be had waiver or consent by any Holder with respect to any security held for payment provisions hereof or thereof, any release of any other Guarantor, the Guaranteed Obligationsrecovery of any judgment against the Company, any action to enforce the same, or any other circumstance that might otherwise constitute a legal or equitable discharge or defense of a Guarantor.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Each Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not hereby waives (to the fullest extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited permitted by law) (including interest accruing after the benefit of diligence, presentment, demand of payment, filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not claims with a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) court in the event of insolvency or bankruptcy of the Company, any such declaration of acceleration of such Guaranteed Obligationsright to require a proceeding first against the Company, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any protest, notice and all reasonable costs demands whatsoever and expenses covenants that (including attorneys’ feesexcept as otherwise provided in Section 4.03) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary its Guarantee or any release, termination or discharge thereof and any such notation will shall not be discharged except by complete performance of the obligations contained in the Senior Notes, the Indenture and the Guarantee. Such Guarantee is a condition to the validity guarantee of any Guaranteepayment and not of collection.
Appears in 2 contracts
Sources: Supplemental Indenture (Cigna Corp), Supplemental Indenture (Halfmoon Parent, Inc.)
Guarantees. (a) Subject to the provisions of this Article X, each Subsidiary Each Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, irrevocably, fully to each Holder and unconditionally guaranteesto the Trustee and its successors and assigns as primary obligor and not merely as a surety, on a senior basis, as guarantor and not as a surety, with each other Guarantor, the full performance and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, of all Obligations obligations of the Issuers Terra Capital under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, of or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary the Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (The Guarantors will agree to pay, in addition to the extent lawfulamount stated above, any and all expenses (including reasonable counsel fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under the Guarantees. Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, such Guarantor and that it such Guarantor will remain bound under this Article X 10 notwithstanding any extension or renewal of any Subsidiary Guarantor Guaranteed Obligation.
(b) . Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers Terra Capital of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
. The obligations of each Guarantor hereunder shall not be affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Terra Capital or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (f) any change in the ownership of such Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee 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.
(d) . Except as expressly set forth in Section Sections 8.2, 10.2 and Article VIII10.6, the obligations of each Subsidiary Guarantor hereunder will shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and will shall not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will shall not (to the extent lawful) be discharged or impaired or otherwise 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 the Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (ii) agreement, by any extension or renewal of any thereof; (iii) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenturethereof, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; , or (viii) 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 any Subsidiary such Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will 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, premium, if any, or interest on any of the Guaranteed Obligations Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuers Terra Capital or otherwise.
(f) . 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 any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers Terra Capital to pay any of the Guaranteed Obligations Obligation when and as the same will shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) and (including interest accruing after iii) all other monetary Guaranteed Obligations of Terra Capital to the filing Holders and the Trustee. Each Guarantor agrees that it shall not be entitled to any right of subrogation in respect of any petition Guaranteed Obligations guaranteed hereby until payment in bankruptcy or the commencement full of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) all Guaranteed Obligations. Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantorit, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (ix) the maturity of the Guaranteed Obligations guaranteed by this Guarantee hereby may be accelerated as provided in this Indenture Article 6 for the purposes of its Subsidiary such Guarantor’s Guarantee in this Guaranteeherein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee Obligations, and (iiy) in the event of any such declaration of acceleration of such Guaranteed ObligationsObligations as provided in Article 6, such Guaranteed the Obligations (whether or not due and payable) will shall forthwith become due and payable by the such Guarantor for the purposes of this Subsidiary Guarantee.
(h) Section. Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders any Holder in enforcing any rights under this GuaranteeSection.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 2 contracts
Sources: Indenture (Terra Investment Fund LLC), Indenture (Terra Industries Inc)
Guarantees. (a) Subject 15.1 In consideration of the Purchaser entering into this Agreement the Eltrax Guarantor hereby guarantees the due and full performance by the Vendor of its duties obligations and undertakings under this Agreement and hereby undertakes to the provisions Purchaser that if the Vendor shall fail in any respect to fulfil or shall be in breach of this Article X, each Subsidiary any of its duties obligations Warranties representations covenants or undertakings the Purchaser shall be at liberty to act and the Eltrax Guarantor shall be liable as if it were the party principally bound thereby
15.2 In consideration as aforesaid the Eltrax Guarantor hereby covenants with the Purchaser that it will indemnify and at all times hereafter keep the Purchaser fully indemnified against all losses damages costs and expenses which may be incurred or suffered by it by reason of any default on the part of the Vendor in making the payments and in performing and observing the agreements and conditions on its part herein contained
15.3 The Eltrax Guarantor hereby agrees that any duty obligation covenant Warranty agreement or undertaking expressed in this Agreement or in the Schedules to be a duty obligation covenant Warranty agreement or undertaking of the Vendor shall be and be construed as a duty obligation covenant Warranty agreement and undertaking of the Eltrax Guarantor and the Vendor jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with each other Guarantor, the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations
15.4 In consideration of the Issuers Vendor entering into this Agreement the Purchaser's Parent Company hereby guarantees the due and full performance by the Purchaser of its duties obligations and undertakings under this Indenture Agreement and hereby undertakes to the Vendor that if the Purchaser shall fail in any respect to fulfil or shall be in breach of any of its duties obligations representations covenants or undertakings the Vendor shall be at liberty to act and the Notes Documents (including interest that, but for Purchaser's Parent Company shall be liable as if it were the filing of a petition in any bankruptcy or other insolvency proceeding party principally bound thereby.
15.5 In consideration as aforesaid the Purchaser's Parent Company hereby covenants with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and Vendor that it will remain bound under this Article X notwithstanding any extension indemnify and at all times hereafter keep the Vendor fully indemnified against all losses damages costs and expenses which may be incurred or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice suffered by it by reason of any default under on the Notes or part of the Guaranteed ObligationsPurchaser in making the payments and in performing and observing the agreements and conditions on its part herein contained.
(c) Each Subsidiary Guarantor further 15.6 The Purchaser's Parent Company hereby agrees that its Subsidiary Guarantee herein constitutes any duty obligation covenant agreement or undertaking expressed in this Agreement or in the Schedules to be a Guarantee duty obligation covenant agreement or undertaking of payment when due (the Purchaser shall be and be construed as a duty obligation covenant agreement and undertaking of the Purchaser's Parent Company and the Purchaser jointly and severally.
15.7 The guarantees, covenants and agreements contained in this clause 15 shall be a continuing security and shall not a Guarantee of collection) and waives any right to require that any resort be had affected by any Holder time or indulgence granted by the Purchaser to any security held for payment of the Guaranteed ObligationsVendor or by the Vendor to the Purchaser.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (15.8 Each reference herein to the extent lawful) Eltrax Guarantor and the Purchaser's Parent Company shall be subject deemed to any defense include their respective successors all of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) whom shall be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand bound by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.provision hereof
Appears in 1 contract
Sources: Asset Sale and Purchase Agreement (Aremissoft Corp /De/)
Guarantees. (a) Subject to The payment by the provisions Company of this Article X, each Subsidiary Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with each other Guarantor, the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding amounts due with respect to the IssuersNotes and the performance by the Company of its obligations under this Agreement and the Other Agreements will be absolutely and unconditionally guaranteed by American Sterilizer Company, would have accrued on a Pennsylvania corporation, STERIS Europe, Inc., a Delaware corporation, STERIS Inc., a Delaware corporation, HTD Holding Corp., a Delaware corporation, HSTD LLC, a Delaware limited liability company, Hausted, Inc., a Delaware corporation, Isomedix Inc., a Delaware corporation, Isomedix Operations Inc., a Delaware corporation, SterilTek, Inc. a Nevada corporation, SterilTek Holdings, Inc. , a Delaware corporation, STERIS Isomedix Services, Inc., a Delaware corporation, and Strategic Technology Enterprises, Inc., a Delaware corporation (together with any Obligationadditional Subsidiary who delivers a guaranty pursuant to Section 9.7, whether or not a claim is allowed against the Issuers for such interest “Subsidiary Guarantors”) pursuant to the guaranty agreement substantially in the related bankruptcy proceedingform of Exhibit 2.2(a) to attached hereto and made a part hereof (as the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations same may be amended, modified, extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any the “Subsidiary Guarantor ObligationGuaranty”).
(b) Each Any pledge agreements, instruments, documents and agreements pursuant to which the Company or any Subsidiary Guarantor waives (agrees to the extent lawful) presentation to, demand of, payment from and protest to the Issuers of any grant Liens in favor of the Guaranteed Obligations KeyBank National Association or a replacement or substitute national banking association, as collateral agent (the “Collateral Agent”) for the ratable benefit of the Creditors are hereinafter referred to as the “Collateral Documents”. The Collateral Documents and also waives (the Subsidiary Guaranty are hereinafter collectively referred to as the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations“Security Documents.”
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment The enforcement of the Guaranteed Obligationsrights and benefits in respect of the Security Documents and the allocation of proceeds thereof will be subject to an amended and restated intercreditor agreement dated as of August 15, 2008 entered into by the Agent on behalf of the Banks, a majority in aggregate principal amount of the 2003 Noteholders, the Collateral Agent, you and the Other Purchasers, substantially in the form of Exhibit 2.2(c) attached hereto and made a part hereof (as the same may be further amended, supplemented, restated or otherwise modified or replaced from time to time, the “Intercreditor Agreement”).
(d) Except as set forth in Section 10.2 and Article VIIIIf at any time the Company or any Subsidiary shall grant to any one or more of the Agent, the obligations Banks or the 2003 Noteholders security of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment kind or termination for provide any reason (other than payment one or more of the Guaranteed Obligations in full)Agent, including the Banks or the 2003 Noteholders with additional guaranties or other credit support of any claim of waiver, release, surrender, alteration or compromise, and will not (kind pursuant to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason requirements of the invalidityBank Credit Agreement or the 2003 Note Purchase Agreements, illegality then the Company or unenforceability such Subsidiary shall grant to the holders of the Guaranteed Obligations Notes the same security or otherwise. Without limiting guaranty so that the generality holders of the foregoing, Notes shall at all times be secured on an equal and pro rata basis with the obligations Banks and the holders of each Subsidiary Guarantor herein will not (the 2003 Notes pursuant to the extent lawful) Intercreditor Agreement. All such additional guaranties shall be discharged or impaired or otherwise affected by (i) given to the failure holders of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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 pursuant to Section 9.7 of this Indenture, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each The holders of the Notes agree that the obligations of any Subsidiary Guarantor agrees that its under the Subsidiary Guarantee herein will remain Guaranty and the Liens of the Collateral Documents in full force and effect until payment in full respect of all or any part of the Guaranteed Obligations Collateral therein described shall be automatically released and discharged without the necessity of further action on the part of the holders of the Notes if, and to the extent, the corresponding guaranty or such Subsidiary Guarantor Lien given pursuant to the terms of the Bank Credit Agreement and the 2003 Note Purchase Agreements is released from its and discharged, provided that in the event the Company or any Subsidiary Guarantee in compliance shall again become obligated under or with Section 4.1, Section 10.2 and Article VIII. Each respect to the previously discharged Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective Guaranty or be reinstatedagain grant the discharged Lien, as the case may be, if at any time paymentpursuant to the terms and provisions of the Subsidiary Guaranty, a Collateral Document, the Bank Credit Agreement or the 2003 Note Purchase Agreements or any part thereofadditional bank loan agreement entered into by the Company pursuant to which such lenders make available to the Company credit facilities which are pari passu with the Notes, then the Lien granted by the Company or its Subsidiaries under a Collateral Document or obligations of principal ofsuch Subsidiary under the Subsidiary Guaranty, premiumas the case may be, if anyshall be reinstated and any release thereof previously given shall be deemed null and void, or interest on any and such Subsidiary Guaranty shall again benefit the holders of the Guaranteed Obligations is rescinded or must otherwise Notes on an equal and pro rata basis and such reinstated Lien and Subsidiary Guaranty shall once again be restored by any Holder upon subject to the bankruptcy or reorganization terms of the Issuers or otherwise.
(f) In furtherance Intercreditor Agreement. Any release by the holders of the foregoing Notes under this Section 2.2(e) shall be deemed to have occurred concurrently with the release and not in limitation discharge under the Bank Credit Agreement. Further, any reinstatement of a Subsidiary Guaranty or Lien pursuant to the terms hereof shall comply with the terms of Sections 9.7 and 9.8 hereof. The Company shall promptly notify the holders of the Notes of any other right which any Holder has at law or in equity against any release of a Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers Guaranty pursuant to pay any of the Guaranteed Obligations when this Section 2.2(e) and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing shall deliver evidence of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination release or discharge thereof and any such notation will not be of a condition to the validity of any Guaranteeguaranty or Lien in customary form.
Appears in 1 contract
Guarantees. In the event that (ai) Subject any Wholly Owned Domestic Subsidiary existing on the Effective Date has not previously executed the Guarantee Agreement, (ii) any Subsidiary that Guarantees the Existing Notes or future Material Indebtedness of Borrower and has not previously executed the Guarantee Agreement or (iii) any Person becomes a direct or indirect Wholly Owned Domestic Subsidiary after the Effective Date (and remains a Wholly Owned Domestic Subsidiary as of the Designation End Date), Borrower shall, within thirty (30) days (or such longer time period as may be acceptable to the provisions Collateral Agent) (the last day of such period, the “Designation End Date”), cause such Subsidiary to execute and deliver to the Administrative Agent a counterpart of the Guarantee Agreement and deliver to the Collateral Agent a counterpart of the applicable Pledge Agreements and to take all such further actions and execute all such further documents and instruments (including actions, documents and certificates comparable to those described in Section 4.01(m)) as may be necessary under applicable law to create in favor of the Collateral Agent, for the benefit of itself and of the Secured Parties, a valid and perfected first priority Lien on all of the Property and assets of such Subsidiary described in the applicable forms of the Pledge Agreements. Notwithstanding the foregoing (or anything in any other Loan Document to the contrary), Borrower may request from time to time that a Subsidiary Loan Party, other than one required to be a Subsidiary Loan Party pursuant to clause (ii) of this Article X, each Section 5.14 (unless such Subsidiary Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with each other Guarantor, the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding is released from its guarantee obligations with respect to the IssuersExisting Notes and/or Material Indebtedness prior to or simultaneous with the release hereunder), would have accrued on be released from its obligations under the Guarantee Agreement and the applicable Pledge Agreement (and upon such request the Administrative Agent and Collateral Agent shall promptly execute such documentation evidencing such release as may be reasonably requested by Borrower and the Lenders hereby authorize each Agent to do so) or, at any Obligation, whether or not time prior to such Subsidiary becoming a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) party to the Holders Guarantee Agreement and the Trusteeapplicable Pledge Agreement, whether for payment of principal ofBorrower may designate such Subsidiary, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (one required to the extent lawful) be subject a Subsidiary Loan Party pursuant to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; clause (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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; Section 5.14 (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or unless such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance guarantee obligations with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue respect to be effective the Existing Notes and/or Material Indebtedness prior to or be reinstatedsimultaneous with the release hereunder), as a Non-Loan Party, so long as, in either case, after giving effect to such request or designation, as applicable, Wholly Owned Domestic Subsidiaries that are not Subsidiary Loan Parties, in the case may beaggregate, do not exceed 10% of Consolidated Total Assets immediately prior to the date of such request or designation (calculated as of the last day of the then most recently ended fiscal quarter); and, if at any time paymentsuch release is in connection with an Asset Sale, or any part thereof, of principal of, premium, if any, or interest on any of such Asset Sale is permitted pursuant to Section 6.05 and the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing Net Proceeds thereof are applied as and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating required pursuant to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceedingSection 2.05(c)(ii).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.”
Appears in 1 contract
Guarantees. (a) Subject to the provisions of this Article X, each Subsidiary Each Guarantor hereby jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety on a senior basis, as guarantor to each Holder and not as a surety, with each other Guarantor, to the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration acceleration, by redemption or otherwise, of all Obligations obligations of the Issuers Issuer (including obligations to the Trustee and the Notes Collateral Trustee) under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the TrusteeNotes, whether for payment of principal of, premium, if any, or interest on the Notes and all other monetary obligations of the Issuer under this Indenture, the Notes, the Security Documents and the Intercreditor Agreement and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Issuer whether for fees, expenses, indemnification or otherwise under this Indenture, the Notes, the Security Documents and the Intercreditor Agreement (all such obligations guaranteed by such Subsidiary Guarantors the foregoing being herein hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it will each such Guarantor shall remain bound under this Article X 10 notwithstanding any extension or renewal of any Subsidiary Guaranteed Obligation. The Guaranteed Obligations of a Guarantor Obligationwill be secured by security interests in the Collateral owned by such Guarantor to the extent provided for in the Security Documents and as required pursuant to Sections 4.10 and 4.11.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuers Company of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (i) the failure of any Holder, the Trustee or the Notes Collateral Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes, any Security Document, or any other agreement or otherwise; (ii) any extension or renewal of this Indenture, the Notes, any Security Document or any other agreement; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes, any Security Document or any other agreement; (iv) the release of any security held by any Holder, the Trustee or the Notes Collateral Trustee for the Guaranteed Obligations or any Guarantor; (v) the failure of any Holder, the Trustee or the Notes Collateral Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (vi) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
(c) Subject to Section 10.02(a), each Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Guarantors, such that such Guarantor’s obligations would be less than the full amount claimed. Each Subsidiary Guarantor hereby waives any right to which it may be entitled to have the assets of the Company or any other Guarantor first be used and depleted as payment of the Company’s or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder. Each Guarantor hereby waives any right to which it may be entitled to require that the Company be sued prior to an action being initiated against such Guarantor.
(d) Each Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee guarantee of collection) and waives any right to require that any resort be had by any Holder Holder, the Trustee or the Notes Collateral Trustee to any security held for payment of the Guaranteed Obligations.
(de) Except as expressly set forth in Section 10.2 Sections 8.01, 10.02 and Article VIII10.06, the obligations of each Subsidiary Guarantor hereunder will shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and will shall not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will shall not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder Holder, the Trustee or the Notes Collateral Trustee to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement any Security Document or any other Notes Document; (iv) the release agreement, by any waiver or modification of any security held thereof, by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; obligations, or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such any Guarantor as a matter of law or equity.
(ef) Each Subsidiary Except as expressly set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Subsidiary Guarantee herein will shall remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee Obligations. Except as expressly set forth in compliance with Section 4.1Sections 8.01 and 10.02, Section 10.2 and Article VIII. Each Subsidiary each Guarantor further agrees that its Subsidiary Guarantee herein will 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, premium, if any, of or interest on any of the Guaranteed Obligations Obligation is rescinded or must otherwise be restored by any Holder Holder, the Trustee or the Notes Collateral Trustee upon the bankruptcy or reorganization of the Issuers Issuer or otherwise.
(fg) In furtherance of the foregoing and not in limitation of any other right which any Holder Holder, the Trustee or the Notes Collateral Trustee has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers Company to pay the principal of or interest on any of the Guaranteed Obligations Obligation when and as the same will shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and willshall, upon receipt of written demand by the TrusteeTrustee in accordance with this Indenture, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or the Notes Collateral Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations then due and owing and Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after iii) all other monetary obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating Issuer then due to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed Holders, the Trustee and the Notes Collateral Trustee in such proceeding)respect of the Guaranteed Obligations.
(gh) Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between such Subsidiary Guarantorit, on the one hand, and the Holders, the Trustee and the Notes Collateral Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee hereby may be accelerated as provided in this Indenture Article 6 for the purposes of its Subsidiary any Guarantee in this Guaranteeherein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee hereby, and (ii) in the event of any such declaration of acceleration of such Guaranteed ObligationsObligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) will shall forthwith become due and payable by the such Guarantor for the purposes of this Subsidiary GuaranteeSection 10.01.
(hi) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ feesfees and expenses) incurred by the Trustee Trustee, or the Holders Notes Collateral Trustee, or any Holder in enforcing any rights under this GuaranteeSection 10.01.
(j) Upon request of the Trustee, each Guarantor shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
(k) All Guarantors desire to allocate among themselves (collectively, the “Contributing Guarantors”), in a fair and equitable manner, the economic consequences resulting from the performance of their respective obligations arising under this Indenture. Accordingly, in the event any payment or distribution is made on any date by a Guarantor (a “Funding Guarantor”) under its Guarantee such that its Aggregate Payments exceed its Fair Share as of such date, such Funding Guarantor shall be entitled to a contribution from each of the other Contributing Guarantors in an amount sufficient to cause each Contributing Guarantor’s Aggregate Payments to equal its Fair Share as of such date. “Fair Share” means, with respect to a Contributing Guarantor as of any date of determination, an amount equal to (a) the ratio of (i) No Issuers the Fair Share Contribution Amount with respect to such Contributing Guarantor, to (ii) the aggregate of the Fair Share Contribution Amounts with respect to all Contributing Guarantors, multiplied by (b) the aggregate amount paid or distributed on or before such date by all Funding Guarantors under their respective Guarantees in respect of the Subsidiary Guarantors will be required obligations guaranteed. “Fair Share Contribution Amount” means, with respect to make a notation on Contributing Guarantor as of any date of determination, the Notes maximum aggregate amount of the obligations of such Contributing Guarantor under its Guarantee that would not render its obligations hereunder or thereunder subject to reflect any Subsidiary Guarantee avoidance as a fraudulent transfer or conveyance under Section 548 of the Bankruptcy Code or any releasecomparable applicable provisions of state law; provided that solely for purposes of calculating the Fair Share Contribution Amount with respect to any Contributing Guarantor for purposes of this Section 10.01, termination any assets or discharge thereof and liabilities of such Contributing Guarantor arising by virtue of any such notation will rights to subrogation, reimbursement or indemnification or any rights to or obligations of contribution hereunder shall not be considered as assets or liabilities of such Contributing Guarantor. “Aggregate Payments” means, with respect to a condition Contributing Guarantor as of any date of determination, an amount equal to (1) the aggregate amount of all payments and distributions made on or before such date by such Contributing Guarantor in respect of its Guarantee (including in respect of this Section 10.01), minus (2) the aggregate amount of all payments received on or before such date by such Guarantor from the other Contributing Guarantors as contributions under this Section 10.01. The amounts payable as contributions hereunder shall be determined as of the date on which the related payment or distribution is made by the applicable Funding Guarantor. Each Contributing Guarantor is a third party beneficiary to the validity contribution agreement set forth in this Section 10.01(k). For the avoidance of any doubt, nothing in this Section 10.01(k) shall limit or impair, by implication or otherwise, each Guarantor’s obligations under its Guarantee.
Appears in 1 contract
Guarantees. (a) Subject TWC hereby unconditionally and irrevocably guarantees to the provisions Administrative Agent, for the ratable benefit of this Article Xthe Lenders and their respective successors, each Subsidiary Guarantor hereby jointly indorsees, transferees and severally, irrevocably, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with each other Guarantorassigns, the full prompt and punctual complete payment and performance by TWE as and when due, due (whether at Stated Maturitythe stated maturity, by acceleration or otherwise, all ) of the Obligations of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor ObligationTWE.
(b) Each Subsidiary Guarantor waives (TWE hereby unconditionally and irrevocably guarantees to the extent lawful) presentation toAdministrative Agent, demand of, payment from and protest to for the Issuers of any ratable benefit of the Guaranteed Lenders and their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by TWC as and when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed ObligationsTWC.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary This Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will shall remain in full force and effect until payment the Obligations are paid in full and the Commitments are terminated, notwithstanding that from time to time prior thereto either one or both of all the Guaranteed Obligations or such Subsidiary Borrowers may be free from any Obligations.
(d) Each Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstatedwhenever, as the case may be, if at any time paymenttime, or from time to time, it shall make any part thereofpayment to the Administrative Agent or any Lender on account of its liability hereunder, it will notify the Administrative Agent and such Lender in writing that such payment is made under this Guarantee for such purpose.
(e) Anything herein or in any other Credit Document to the contrary notwithstanding, the maximum liability of principal of, premium, if any, or interest on any each Guarantor hereunder and under the other Credit Documents shall in no event exceed the amount which can be guaranteed by such Guarantor under applicable federal and state laws relating to the insolvency of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwisedebtors.
(f) In furtherance No payment or payments made by either of the foregoing and not in limitation Borrowers, either of the Guarantors, any other guarantor or any other Person or received or collected by the Administrative Agent or any Lender from either of the Borrowers, either of the Guarantors, any other guarantor or any other Person by virtue of any other right which action or proceeding or any Holder has at law setoff or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure appropriation or payment of the Issuers Obligations shall be deemed to pay any of modify, reduce, release or otherwise affect the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing liability of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guaranteehereunder who shall, notwithstanding any stay, injunction such payment or payments (other prohibition preventing than payments made by such acceleration Guarantor in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) or payments received or collected from such Guarantor in respect of the event of any such declaration of acceleration Obligations), remain liable for the Obligations, up to the maximum liability of such Guaranteed Obligations, such Guaranteed Guarantor hereunder until the Obligations (whether or not due are paid in full and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary GuaranteeCommitments are terminated.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 1 contract
Sources: Credit Agreement (Time Warner Inc)
Guarantees. (To guarantee full discharge of all obligations, principal and accessory, that the DEBTOR assumes in this Contract, as well as the penalties, judicial or extrajudicial costs and expenses, taxes, and similar charges that the LENDER incurs and/or may incur for covering its credit, the DEBTOR delivers and/or will deliver to the LENDER:
a) Subject Promissory Notes in the form of Annex B of this Contract, duly signed by the authorized signatory of the DEBTOR and endorsed by ▇▇▇ das Contas Produtora de Petróleo LTDA ("Promissory Notes) to be included and indicated in Table III, in the capacity of GUARANTOR(S), CO-OBLIGOR(S) jointly and severally with the DEBTOR for all obligations under this Contract and Request for Disbursement by the DEBTOR, and who may at any time be called upon to honor the obligations here assumed, in the event that the DEBTOR for any reason, fails to make timely payments of what is owed, waiving any benefit of order and division.
b) Addendum to this Contract through which Rio das Contas Produtora de Petróleo LTDA will be constituted as joint debtor in the Contract, such that the same, irrevocably and irreversibly, declares agreement to the provisions terms and conditions of the Contract, ratifying it in its entirety and taking joint responsibility for all obligations assumed by the DEBTOR in the Contract ("Amendment to the Contract").
c) Further Assurances in Annexed Instruments properly defined, described, and characterized in Table VI. Paragraph One -- The Promissory Notes and Amendment to the Contract, as described in items "a" and "b" above, will be submitted to the LENDER within 15 (fifteen) days from the date this Contract is signed, under penalty of the transaction’s coming due early. Paragraph Two -- The formalization and registration of the guarantee for Assignment of Credit Rights arising in the Natural Gas Purchase and Sale Contract No. 48000.003518/97-82 signed between Rio das Contas Produtora de Petróleo LTDA and Petróleo Brasileiro SA - Petrobrás, through applicable contractual or statutory devices for its proper formalization, described in Table VI, must occur within 30 days from the date of signing of this Article X, each Subsidiary Guarantor hereby jointly Contract. If the guarantee for Assignment of Credit Rights arising in Natural Gas Purchase and severally, irrevocably, fully Sale Contract No. 48000.003518/97-82 signed between Rio das Contas Produtora de Petróleo LTDA and unconditionally guarantees, on a senior basisPetróleo Brasileiro SA - Petrobrás, as guarantor described in Table VI and not as a surety, with each other Guarantor, the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect subject to the Issuersconditions established in this Contract, would have accrued on any Obligationis not lodged within the period prescribed in this Clause 17 or depreciates and/or gets lost, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) so as to the Holders and the Trusteebecome awkward, whether for payment of principal of, premium, if anyinappropriate, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (insufficient to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, secure the obligations of each Subsidiary Guarantor hereunder the DEBTOR in this Contract, it is hereby certain and agreed that the DEBTOR and/or guaranteeing third parties will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment constitute the Assignment of Credit Rights in favor of the Guaranteed Obligations in full)LENDER, including any claim by contractual or legal provisions applicable to its proper formalization and registration, ensuring Assignment of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason Shares of the invaliditycompany Rio das Contas Produtora de Petróleo LTDA within 15 days from the referred-to nonformalization or depreciation, illegality or unenforceability and/or loss of collateral, under penalty of early termination of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equitytransaction.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 1 contract
Guarantees. (a) Subject This Section 13.01 and Section 13.02 apply to the provisions Debt Securities of this Article X, each Subsidiary any series of BFC to the extent that the form of the Guarantees to be endorsed on such Securities is not otherwise established as contemplated by Section 2.01. The Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on guarantees to each holder of a senior basis, as guarantor Debt Security of each series issued by BFC and not as a surety, with each other Guarantorauthenticated and delivered by the Trustee, the full due and punctual payment when dueof the principal (including any amount due in respect of original issue discount) of and any premium and interest on such Debt Security, and the due and punctual payment of any sinking fund payments provided for pursuant to the terms of such Debt Security, then and as the same shall become due and payable, whether at the Stated Maturity, by acceleration declaration of acceleration, call for redemption or otherwise, all Obligations in accordance with the terms of such Debt Security and of this Indenture. The Guarantor hereby agrees that in the event of an Event of Default its obligations hereunder shall be as if it were a principal debtor and not merely a surety, and shall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of any Debt Security of any series or this Indenture, any failure to enforce the provisions of any Debt Security of any series or this Indenture, any waiver, modification or indulgence granted to BFC with respect thereto, by the Holder of any Debt Security of any series of BFC or the Trustee, or any other circumstances which may otherwise constitute a legal or equitable discharge of a surety or guarantor; provided, however, that, notwithstanding the foregoing, no such waiver, modification or indulgence shall, without the consent of the Issuers Guarantor, increase the principal amount of any Debt Security of BFC or the interest rate thereon or increase any premium payable upon redemption thereof. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger or bankruptcy of BFC, any right to require a proceeding first against BFC, the benefit of discussion, protest or notice with respect to any Debt Security of BFC or the indebtedness evidenced thereby or with respect to any sinking fund payment required pursuant to the terms of such Debt Security issued under this Indenture and the Notes Documents (including interest thatall demands whatsoever, but for the filing of a petition in any bankruptcy or other insolvency proceeding and covenants that this Guarantee will not be discharged with respect to such Debt Security except by payment in full of the Issuersprincipal thereof and any premium and interest thereon or as provided in Article XI or Section 10.01. If any Holder or 109 109 the Trustee is required by any court or otherwise to return to BFC, would have accrued on the Guarantor, or any Obligationcustodian, whether trustee, liquidator or not a claim is allowed against other similar official acting in relation to BFC or the Issuers for such interest in Guarantor any amount paid by BFC or the related bankruptcy proceeding) Guarantor to the Holders and the TrusteeTrustee or such Holder, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (this Guarantee to the extent lawful) that the Guaranteed Obligations may theretofore discharged, shall be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain reinstated in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIIIeffect. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary The Guarantor further agrees that, as between such Subsidiary the Guarantor, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (i) the maturity stated Maturity of the Guaranteed Obligations obligations guaranteed by this Guarantee hereby may be accelerated as provided in this Indenture Article 6.01 hereof for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the hereby. The Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees' fees and expenses) incurred by the Trustee or the any Holders in enforcing any rights under this Guarantee.
(i) No Issuers . The Guarantor hereby fully and unconditionally guarantees to the Trustee the due and punctual payment of all fees and expenses under Section 7.06. The Guarantor hereby waives any right of setoff which the Guarantor may have against the Holder of any Debt Security of BFC in respect of any amounts which are or may become payable by such Holder to BFC. The Guarantor shall be subrogated to all rights of the Subsidiary Guarantors will be required Holders of any series of Debt Securities and the Trustee against BFC in respect of any amounts paid to make a notation on such Holders and the Notes Trustee by the Guarantor pursuant to reflect any Subsidiary Guarantee or any releasethe provisions of the Guarantees; provided, termination or discharge thereof and any such notation will however, that the 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 of the Debt Securities of such series shall have been paid in full. No past, present or future stockholder, officer, director, employee or incorporator of the Guarantor shall have any personal liability under the Guarantees set forth 110 in this Section 13.01 by reason of his or its status as such stockholder, officer, director, employee or incorporator. The Guarantees set forth in this Section 13.01 shall not be valid or become obligatory for any purpose with respect to a condition to Debt Security until the validity certificate of any Guaranteeauthentication on such Debt Security shall have been signed by or on behalf of the Trustee.
Appears in 1 contract
Sources: Indenture (H&r Block Inc)
Guarantees. (a) Subject to the provisions of this Article X, each Subsidiary Each Guarantor hereby jointly and severally, irrevocably, fully severally irrevocably and unconditionally guarantees, guarantees as a primary obligor and not merely as a surety on a senior basis, as guarantor basis to each Holder and not as a surety, with each other Guarantor, to the Indenture Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturitythe Final Maturity Date, by acceleration acceleration, by redemption or otherwise, of all Obligations obligations of the Issuers Issuer under this Indenture (including obligations to the Indenture Trustee and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the TrusteeNotes, whether for payment of principal of, or premium, if any, or interest on on, the Notes and all other monetary obligations of the Issuer under this Indenture and the Notes, and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Issuer, whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes (all such obligations guaranteed by such Subsidiary Guarantors the foregoing being herein hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it will each such Guarantor shall remain bound under this Article X 9 notwithstanding any extension or renewal of any Subsidiary Guaranteed Obligation. The Guaranteed Obligations of a Guarantor Obligationwill be secured by security interests (subject to Permitted Liens) in the Collateral owned by such Guarantor to the extent provided for in the Security Documents and as required pursuant to Sections 4.08 and 4.09.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuers Issuer of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (i) the failure of any Holder or the Indenture Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes, any Security Document, or any other agreement or otherwise; (ii) any extension or renewal of this Indenture, the Notes, any Security Document or any other agreement; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes, any Security Document or any other agreement; (iv) the release of any security held by any Holder or the Indenture Trustee for the Guaranteed Obligations or any Guarantor; (v) the failure of any Holder or the Indenture Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (vi) any change in the ownership of such Guarantor, except as provided in Section 9.02(b).
(c) Each Subsidiary Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Guarantors, such that such Guarantor’s obligations would be less than the full amount claimed. Each Guarantor hereby waives any right to which it may be entitled to have the assets of the Issuer or any other Guarantor first be used and depleted as payment of the Issuer’s or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder. Each Guarantor hereby waives any right to which it may be entitled to require that the Issuer be sued prior to an action being initiated against such Guarantor.
(d) Each Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee guarantee of collection) and waives any right to require that any resort be had by any Holder or the Indenture Trustee to any security held for payment of the Guaranteed Obligations.
(de) Except as expressly set forth in Section 10.2 Sections 7.01 and Article VIII9.02, the obligations of each Subsidiary Guarantor hereunder will shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and will shall not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will shall not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder or the Indenture Trustee to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement any Security Document or any other Notes Document; (iv) the release agreement, by any waiver or modification of any security held thereof, by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; obligations, or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such any Guarantor as a matter of law or equity.
(ef) Each Subsidiary Except as expressly set forth in Sections 7.01 and 9.02, each Guarantor agrees that its Subsidiary Guarantee herein will shall remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee Obligations. Except as expressly set forth in compliance with Section 4.1Sections 7.01 and 9.02, Section 10.2 and Article VIII. Each Subsidiary each Guarantor further agrees that its Subsidiary Guarantee herein will 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, premium, if any, of or interest on any of the Guaranteed Obligations Obligation is rescinded or must otherwise be restored by any Holder or the Indenture Trustee upon the bankruptcy or reorganization of the Issuers Issuer or otherwise.
(fg) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Indenture Trustee has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers Issuer to pay the principal of or interest on any of the Guaranteed Obligations Obligation when and as the same will shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and willshall, upon receipt of written demand by the TrusteeIndenture Trustee in accordance with this Indenture, forthwith pay, or cause to be paid, in cash, to the Trustee Holders or the Indenture Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations then due and owing and Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after iii) all other monetary obligations of the filing of any petition in bankruptcy Issuer then due to the Holders or the commencement Indenture Trustee in respect of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)Guaranteed Obligations.
(gh) Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between such Subsidiary Guarantorit, on the one hand, and the HoldersHolders and the Indenture Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee hereby may be accelerated as provided in this Indenture Article 5 for the purposes of its Subsidiary any Guarantee in this Guaranteeherein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee hereby, and (ii) in the event of any such declaration of acceleration of such Guaranteed ObligationsObligations as provided in Article 5, such Guaranteed Obligations (whether or not due and payable) will shall forthwith become due and payable by the such Guarantor for the purposes of this Subsidiary GuaranteeSection 9.01.
(hi) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ feesfees and expenses) incurred by the Indenture Trustee or the Holders any Holder in enforcing any rights under this GuaranteeSection 9.01.
(ij) No Issuers Upon request of the Indenture Trustee, each Guarantor shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity purpose of any Guaranteethis Indenture.
Appears in 1 contract
Sources: Indenture (Imperial Holdings, Inc.)
Guarantees. (a) Subject Each of America Online and Time Warner, as primary obligor and not merely as surety, will fully, irrevocably and unconditionally guarantee, to each Holder of Securities (including each Holder of Securities issued under the Indenture after the date of this Indenture) and to the provisions of this Article X, each Subsidiary Guarantor hereby jointly Trustee and severally, irrevocably, fully its successors and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with each other Guarantor, assigns (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or of and interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment Securities when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises and all other monetary obligations of the Company under this Indenture (including obligations to and will, upon receipt of written demand by the Trustee) and the Securities and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Securities.
(b) Each of TBS and TWC, forthwith payas primary obligor and not merely as surety, will fully, irrevocably and unconditionally guarantee, to each Holder of Securities (including each Holder of Securities issued under the Indenture after the date of this Indenture) and to the Trustee and its successors and assigns (i) the full and punctual payment of all monies due under the Guarantee of Time Warner, and all other monetary obligations of Time Warner under this Indenture (including obligations to the Trustee) and (ii) the full and punctual performance within applicable grace periods of all other obligations of Time Warner under this Indenture and its Guarantee.
(c) Each of the Guarantors further agrees that its obligations hereunder shall be unconditional irrespective of the absence or existence of any action to enforce the same, the recovery of any judgment against the Company or any other Guarantor (except to the extent such judgment is paid) or any waiver or amendment of the provisions of this Indenture or the Securities to the extent that any such action or any similar action would otherwise constitute a legal or equitable discharge or defense of a guarantor (except that each such waiver or amendment shall be effective in accordance with its terms).
(d) Each of the Guarantors further agrees that each Guarantee constitutes a guarantee of payment, performance and compliance and not merely of collection.
(e) Each of the Guarantors further agrees to waive presentment to, demand of payment from and protest to the Company or any other Person, and also waives diligence, notice of acceptance of its Guarantee, presentment, demand for payment, notice of protest for nonpayment, the filing of claims with a court in the event of merger or bankruptcy of the Company or any other Person and any right to require a proceeding first against the Company or any other Person. The obligations of the Guarantors shall not be affected by any failure or policy on the part of the Trustee to exercise any right or remedy under this Indenture or the Securities of any series.
(f) The obligation of each Guarantor to make any payment hereunder may be satisfied by causing the Company or any other Person to make such payment. If any Holder of any Security or the Trustee is required by any court or otherwise to return to the Company or any Guarantor, or cause any custodian, trustee, liquidator or other similar official acting in relation to be paidany of the Company or any Guarantor, in cash, any amount paid by any of them to the Trustee or such Holder, the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount Guarantee of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only Guarantor, to the extent not prohibited by law) (including interest accruing after the filing of any petition theretofore discharged, shall be reinstated in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)full force and effect.
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ ' fees) incurred by the Trustee or the Holders any Holder of Securities in enforcing any of their respective rights under this Guaranteeits Guarantees.
(ih) No Issuers Any term or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition provision of this Indenture to the validity contrary notwithstanding, the maximum aggregate amount of any Guaranteeeach of the Guarantees shall not exceed the maximum amount that can be guaranteed by the relevant Guarantor without rendering the relevant Guarantee under this Indenture voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally.
Appears in 1 contract
Sources: Indenture (Aol Time Warner Inc)
Guarantees. No Obligor shall, and the Company shall ensure that no member of the Group shall, incur or allow to remain outstanding any guarantee in respect of any obligation of any person, except:
(a) Subject to guarantees given in the provisions ordinary course of this Article X, each Subsidiary Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on business including (without limitation) any performance or similar bond guaranteeing performance by a senior basis, as guarantor and not as a surety, with each other Guarantor, the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations member of the Issuers Group under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest contract entered into in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment ordinary course of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.business;
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers of any guarantee given in respect of the Guaranteed Obligations and also waives netting or set-off arrangements permitted pursuant to paragraph (to the extent lawfulc)(i) notice of protest for nonpayment. Each Subsidiary Guarantor waives Clause 23.4 (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.Negative pledge);
(c) Each Subsidiary Guarantor further agrees any customary indemnity given in respect of a disposal permitted under paragraph (b) of Clause 23.5 (Disposals) but only where the amount payable under such indemnity is limited to no more than the consideration received in respect of that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.disposal;
(d) Except as set forth any guarantee in Section 10.2 and Article VIIIrespect of Financial Indebtedness of Obligors permitted to be incurred by this Agreement;
(e) a guarantee, the obligations of each Subsidiary Guarantor hereunder will not be subject to bond or indemnity given by any reduction, limitation, impairment or termination for any reason (other than payment member of the Guaranteed Obligations Group in full), including respect of Financial Indebtedness of any claim of waiver, release, surrender, alteration or compromise, and will not non-Obligor permitted under this Agreement;
(to the extent lawfulf) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or guarantee given by reason a member of the invalidity, illegality ▇▇▇▇▇▇▇▇▇ Group in connection with the ▇▇▇▇▇▇▇▇▇ Notes or unenforceability any guarantee given by any member of the Guaranteed Obligations or otherwise. Without limiting the generality ▇▇▇▇▇▇▇▇▇ Group in connection with a Notes Covenant Suspension, in each case until prepayment and cancellation of the foregoing▇▇▇▇▇▇▇▇▇ Notes in full with the proceeds of the Loans;
(g) on or after the date the 75% Condition is satisfied, any guarantee given by a member of the obligations Melrose Group in connection with the ▇▇▇▇▇▇▇▇▇ Notes as part of each Subsidiary Guarantor herein will not a Notes Covenant Suspension;
(to h) any guarantee given by the extent lawful) be discharged or impaired ▇▇▇▇▇▇▇▇▇ Group in connection with the Existing ▇▇▇▇▇▇▇▇▇ Facilities Agreement or otherwise affected by outstanding on the Closing Date;
(i) the failure ▇▇▇▇▇▇▇▇▇ Pension Plan Guarantee as varied by the ▇▇▇▇▇▇▇▇▇ Pension Plan Guarantee Deed of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstatedVariation and, as the case may be, if the ▇▇▇▇▇▇▇▇▇ Pension Plan Deed of Amendment;
(j) any other guarantees, bonds or indemnities not permitted by the preceding paragraphs and the outstanding principal amount of which, when aggregated with the principal amount of any Financial Indebtedness permitted under paragraph (e) Clause 23.17 (Loans), does not exceed £100,000,000 (or its equivalent in other currencies) in aggregate for the Group at any time payment, or time;
(k) any part thereof, of principal of, premium, if any, or interest on any guarantee given by a member of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon Group in connection with the bankruptcy or reorganization Existing Facility Agreement until prepayment and cancellation of the Issuers or otherwise.facilities thereunder with the proceeds of the Loans, provided that, prior to the ▇▇▇▇▇▇▇▇▇ Upstream Guarantee Date, no Obligor that is a member of the Melrose Group shall guarantee Financial Indebtedness of any member of the ▇▇▇▇▇▇▇▇▇ Group other than:
(fA) In furtherance under the Facilities (and any Ancillary Facility);
(B) in respect of any counter-indemnity for surety bonds or performance guarantees outstanding on the Closing Date and issued pursuant to bonding or guarantee facilities available to a member of the foregoing and ▇▇▇▇▇▇▇▇▇ Group on the Closing Date or permitted replacements thereof provided that the maximum contingent liability under those counter-indemnities does not exceed $90,000,000 (or its equivalent in limitation of other currencies) at any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of time);
(iC) the unpaid amount ▇▇▇▇▇▇▇▇▇ Notes as part of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition a Notes Covenant Suspension in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
accordance with paragraph (g) Each Subsidiary Guarantor further agrees thatabove; or
(D) for the avoidance of doubt, as between such Subsidiary Guarantor, on any non-binding comfort or support letters (which are not guarantees) issued at the one hand, and the Holders, on the other hand, (i) the maturity request of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect auditors of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in Group or the event relevant Obligor or required to be issued as part of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether Group reorganisation or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guaranteerestructuring.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 1 contract
Sources: Senior Term and Revolving Facilities Agreement (Melrose PLC)
Guarantees. The Borrower will not and will not permit any Subsidiary to pledge its credit or property in any manner for the payment or other performance of any Indebtedness, contract or other obligation of another (including, without limitation, the Indebtedness of the Parent under any of the Senior Notes), whether as guarantor (whether of payment or of collection), surety, co‑maker, endorser or by agreeing conditionally or otherwise to make any purchase, loan or investment in order thereby to enable another to prevent or correct a default of any kind, or otherwise, except for:
(a) Subject to the provisions endorsements of this Article X, each Subsidiary Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with each other Guarantor, the full and punctual payment when due, whether at Stated Maturity, by acceleration negotiable instruments for deposit or otherwise, all Obligations of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy collection or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest similar transactions in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment normal course of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.business;
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.guarantee set forth on Schedule 9.22 attached hereto;
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes any indemnity or guarantee of a Guarantee of payment when due (and not surety bond for the performance by a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment customer of the Guaranteed Obligations.Borrower or any Subsidiary of such customer’s obligations under a land development contract;
(d) Except as set forth in Section 10.2 and Article VIII, any unsecured guarantee by the obligations Borrower or any of each its Subsidiaries of the equity investment or performance of a Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge Indebtedness of such Guarantor Subsidiary incurred for borrowed money) in connection with a real estate project solely in favor of a partner or a member, or a partnership or limited liability company in which such Subsidiary is a general partner or a member, as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all applicable, when the Guaranteed Obligations Borrower or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstatedSubsidiary, as the case may be, if at deems it to be in its best interest not to be a partner, a member or have a direct interest in the partnership or the limited liability company, as applicable;
(e) any time paymentguarantee or indemnity by the Borrower or any of its Subsidiaries for fraud, misappropriation, misapplication or environmental problems, or as are otherwise usual and customary for non-recourse carve-out guaranties given in commercial mortgage loan transactions entered into by the Borrower and/or its Subsidiaries, provided that such a guarantee or indemnity may be given by the Borrower or a Subsidiary, but not both (unless such Subsidiary is also the borrower in the particular commercial mortgage loan transaction), in connection with any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.particular commercial mortgage loan transaction;
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand guarantee by the Trustee, forthwith pay, or cause to be paid, in cash, to Borrower of an unsecured hedge agreement entered into by a Subsidiary and with a maturity date of not more than twelve (12) months following the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount date of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).hedge agreement; and
(g) Each Subsidiary Guarantor further agrees thatsubject to the limitations set forth in Section 8.04(c) hereof, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable guarantee entered into by the Guarantor for the purposes of this Borrower or a Subsidiary Guaranteein connection with a Hedge Agreement permitted under such Section 8.04(c).
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 1 contract
Guarantees. (a) Subject to the provisions of this Article X, each Subsidiary Each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guaranteesguarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, on a senior basis, as guarantor and not as a surety, with each other Guarantor, the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations irrespective of the Issuers under this Indenture validity and the Notes Documents (including interest that, but for the filing enforceability of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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 the obligations of the terms Company hereunder or provisions thereunder, that: (a) the principal of this Indenture, the Notes, and interest on the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain be promptly paid in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary and interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, such Guarantor will be obligated to pay the same immediately. Each Guarantor hereby promises agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and willall demands whatsoever and covenant that its Guarantee will not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company or the Guarantors, upon receipt of written demand by the or any Custodian, Trustee, forthwith payliquidator or other similar official acting in relation to either the Company or the Guarantors, or cause to be paid, in cash, any amount paid by any such entity to the Trustee or such Holder, the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not prohibited by law) (including interest accruing after be entitled to any right of subrogation in relation to the filing Holders in respect of any petition obligations guaranteed hereby until payment in bankruptcy or the commencement full of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) all obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantorthe Guarantors, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (ix) the maturity of the Guaranteed Obligations obligations guaranteed by this Guarantee hereby may be accelerated as provided in this Indenture Article 6 for the purposes of its Subsidiary Guarantee in this Guaranteethe Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations obligations guaranteed by this Guarantee hereby, and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligationsobligations as provided in Article 6, such Guaranteed Obligations obligations (whether or not due and payable) will shall forthwith become due and payable by the Guarantor Guarantors for the purposes purpose of this Subsidiary Guarantee.
(h) Each Subsidiary the Guarantees. The Guarantors shall have the right to seek contribution from any non-paying Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by so long as the Trustee or exercise of such right does not impair the rights of the Holders in enforcing any rights under this Guaranteethe Guarantees.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 1 contract
Sources: Indenture (Desa Holdings Corp)
Guarantees. There shall be included in determining Consolidated EBITDA for any period, without duplication, (aA) Subject to the provisions Acquired EBITDA of this Article Xany Person, each property, business or asset acquired by the Borrower or any Restricted Subsidiary Guarantor hereby jointly and severallyduring such period (but not the Acquired EBITDA of any related Person, irrevocablyproperty, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with each other Guarantor, the full and punctual payment when due, whether at Stated Maturity, by acceleration business or otherwise, all Obligations of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (assets to the extent lawful) that the Guaranteed Obligations may be extended or renewednot so acquired), in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation tonot subsequently sold, demand transferred or otherwise disposed by the Borrower or such Restricted Subsidiary during such period (each such Person, property, business or asset acquired and not subsequently so disposed of, payment from an “Acquired Entity or Business”) and protest to the Issuers Acquired EBITDA of any Unrestricted Subsidiary that is converted into a Restricted Subsidiary during such period (each, a “Converted Restricted Subsidiary”), based on the actual Acquired EBITDA of such Acquired Entity or Business or Converted Restricted Subsidiary for such period (including the portion thereof occurring prior to such acquisition) and (B) for the purposes of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment definition of the Guaranteed Obligations.
(d) Except as term “Permitted Acquisition,” compliance with the covenant set forth in Section 10.2 7.11 and Article VIIIthe calculation of the Consolidated First Lien Net Leverage Ratio, the obligations Consolidated Secured Net Leverage Ratio, the Consolidated Total Net Leverage Ratio, and the Consolidated Interest Coverage Ratio, an adjustment in respect of each Subsidiary Guarantor hereunder will not Acquired Entity or Business equal to the amount of the Pro Forma Adjustment with respect to such Acquired Entity or Business for such period (including the portion thereof occurring prior to such acquisition) as specified in a certificate executed by a Responsible Officer and delivered to the Lenders and the Administrative Agent. There shall be subject to any reduction, limitation, impairment or termination excluded in determining Consolidated EBITDA for any reason period the Disposed EBITDA of any Person, property, business or asset (other than payment an Unrestricted Subsidiary) sold, transferred or otherwise disposed of or, closed or classified as discontinued operations (but if such operations are classified as discontinued due to the Guaranteed Obligations in full)fact that they are subject to an agreement to dispose of such operations, including any claim of waiver, release, surrender, alteration or compromise, only when and will not (to the extent lawfulsuch operations are actually disposed of) be subject to by the Borrower or any defense of setoffRestricted Subsidiary during such period (each such Person, counterclaimproperty, recoupment business or termination whatsoever asset so sold or by reason of disposed of, a “Sold Entity or Business”) and the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure Disposed EBITDA of any Holder to assert any claim or demand or to enforce any right or remedy against Restricted Subsidiary that is converted into an Unrestricted Subsidiary during such period (each a “Converted Unrestricted Subsidiary”), based on the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge actual Disposed EBITDA of such Guarantor as a matter of law Sold Entity or equity.
(e) Each Business or Converted Unrestricted Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or for such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) period (including interest accruing after the filing of any petition in bankruptcy portion thereof occurring prior to such sale, transfer or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceedingdisposition).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 1 contract
Guarantees. (a) Subject to the provisions of this Article X, each Subsidiary Guarantor hereby Guarantor, jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, on a senior basis, as guarantor guarantees to each Holder of Notes and not as a surety, with each other Guarantor, the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of Holders:
(i) the unpaid amount of such Guaranteed Obligations then due and owing punctual payment in full of principal of and interest on the Notes when due, whether at stated maturity, upon acceleration, redemption or otherwise;
(ii) accrued the due and unpaid punctual payment in full of interest on such Guaranteed Obligations then due and owing (but only the overdue principal of and, to the extent not prohibited permitted by law, interest on the Notes; and
(iii) (including interest accruing after the filing due and punctual payment of any petition in bankruptcy all other Obligations of the Company and the other Guarantors to the Holders or the commencement Trustee hereunder or under the Notes, including, without limitation, the payment of fees, expenses, indemnification or other amounts. In case of the failure of the Company punctually to make any insolvency, reorganization such principal or like proceeding relating to interest payment or the Issuers failure of the Company or any Subsidiary other Guarantor to pay any such other Obligation, each Guarantor agrees to cause any such payment to be made punctually when due, whether at stated maturity, upon acceleration, redemption or not a claim for post-filing or post-petition interest is allowed in otherwise, and as if such proceeding).
(g) payment were made by the Company and to perform any such other Obligation of the Company immediately. Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ feesreasonable counsel fees -45- 53 and expenses) incurred by the Trustee or the Holders in enforcing any rights under these Guarantees. The Guarantees under this GuaranteeArticle X are guarantees of payment and not of collection.
(ib) No Issuers Each of the Company and the Guarantors waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, insolvency or bankruptcy of the Subsidiary Guarantors will be required Company or any other Guarantor, any right to make require a notation on proceeding first against the Company or any other Guarantor, protest or notice with respect to the Notes to reflect any Subsidiary Guarantee or any releaseand all demands whatsoever, termination or discharge thereof and any such notation will covenants that these Guarantees shall not be a condition to discharged except by complete performance of the validity of any GuaranteeObligations contained in the Notes and in this Indenture, or as otherwise specifically provided therein or herein.
Appears in 1 contract
Guarantees. (a) Subject to the provisions of this Article X, each Subsidiary Guarantor hereby Guarantor, jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, guarantees to each Holder of Notes and to the Trustee on a senior basis, as guarantor and not as a surety, with each other Guarantor, behalf of the full Holders:
(i) the due and punctual payment in full of all amounts payable in respect of the Notes when due, whether at Stated Maturitystated maturity, by acceleration upon acceleration, redemption, repurchase or otherwise;
(ii) the due and punctual payment in full of interest on the overdue principal amounts and, all Obligations of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuersextent permitted by law, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes; and
(iii) the due and punctual payment of all other Obligations of the Company and the other Guarantors to the Holders or the Trustee hereunder or under the Notes, including, without limitation, the payment of fees, expenses, indemnification or otherwise (all other amounts. In case of the failure of the Company punctually to make any such obligations guaranteed payment or the failure of the Company or any other Guarantor to pay any such other Obligation, each Guarantor agrees to cause any such payment to be made punctually when due, whether at stated maturity, upon acceleration, redemption, repurchase or otherwise, and as if such payment were made by the Company and to perform any such Subsidiary Guarantors being herein called other Obligation of the “Guaranteed Obligations”)Company immediately. Each Subsidiary Guarantor further agrees to pay any and all expenses (to including reasonable counsel fees and expenses) incurred by the extent lawful) that Trustee or the Guaranteed Obligations may be extended or renewed, Holders in whole or in part, without notice or further assent from it, and that it will remain bound enforcing any rights under these Guarantees. The Guarantees under this Article X notwithstanding any extension or renewal are guarantees of any Subsidiary Guarantor Obligationpayment and not of collection.
(b) Each Subsidiary Guarantor of the Company and the Guarantors waives (diligence, presentment, demand of payment, filing of claims with a court in the event of merger, insolvency or bankruptcy of the Company or any other Guarantor, any right to require a proceeding first against the Company or any other Guarantor, protest or notice with respect to the extent lawful) presentation toNotes and all demands whatsoever, demand of, payment from and protest to the Issuers of any covenants that these Guarantees shall not be discharged except by complete performance of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under contained in the Notes and in this Indenture, or the Guaranteed Obligationsas otherwise specifically provided therein or herein.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due waives and relinquishes:
(and not a Guarantee of collectioni) and waives any right to require that the Trustee, the Holders or the Company (each, a "Benefited Party") to proceed against the Company, the Subsidiaries of the Company or any resort be had by any Holder other Person or to proceed against or exhaust any security held for payment by a Benefited Party at any time or to pursue any other remedy in any secured party's power before proceeding against the Guarantors;
(ii) any defense that may arise by reason of the Guaranteed Obligationsincapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons;
(iii) demand, protest and notice of any kind (except as expressly required by this Indenture), including, but not limited to, notice of the existence, creation or incurrence of any new or additional indebtedness or obligation or of any action or non-action on the part of the Guarantors, the Company, the Subsidiaries of the Company, any Benefited Party, any creditor of the Guarantors, the Company or the Subsidiaries of the Company or on the part of any other Person whomsoever in connection with any obligations the performance of which are hereby guaranteed;
(iv) any defense based upon an election of remedies by a Benefited Party, including but not limited to an election to proceed against the Guarantors for reimbursement;
(v) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal;
(vi) any defense arising because of a Benefited Party's election, in any proceeding instituted under the Bankruptcy Law, of the application of Section 1111(b)(2) of the U.S. Bankruptcy Code; and
(vii) any defense based on any borrowing or grant of a security interest under Section 364 of the U.S. Bankruptcy Code.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and Holders and the HoldersTrustee, on the other hand, :
(i) for purposes of the relevant Guarantee, the maturity of the Obligations Guaranteed Obligations guaranteed by this such Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this GuaranteeArticle VI, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and thereby, and
(ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will such Obligations shall forthwith become due and payable by the such Guarantor for the purposes of this Subsidiary such Guarantee.
(he) Each Subsidiary Guarantor also agrees The Guarantees shall continue to pay be effective or shall be reinstated, as the case may be, if at any and all reasonable costs and expenses (including attorneys’ fees) incurred time any payment, or any part thereof, on any of the Notes is rescinded or must otherwise be returned by the Trustee Holders or the Holders in enforcing Trustee upon the insolvency, bankruptcy or reorganization of the Company or any rights under this Guaranteeof the Guarantors, all as though such payment had not been made.
(if) No Issuers Each Guarantor shall be subrogated to all rights of the Holders against the Company in respect of any amounts paid by such Guarantor pursuant to the provisions of the Guarantees or the Subsidiary Guarantors will be required to make this Indenture; provided, however, that a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will Guarantor shall not be a condition entitled to the validity enforce or to receive any payments until all amounts payable in respect of any Guaranteeall Notes issued hereunder shall have been paid in full.
Appears in 1 contract
Sources: Indenture (Lear Corp /De/)
Guarantees. Concurrently with the effective time of the Holdings Merger, and with KH LLC having received a written opinion of a nationally recognized valuation firm affirming the solvency of KGI (a) Subject taking into consideration and having given effect to the provisions consummation of the transactions contemplated by Article II other than this Article XSection 2.3(d)), which opinion is a requirement to the consummation of the financing transactions described in this Section 2.3, KH LLC shall execute and deliver the following guarantees and pledge agreements, each Subsidiary Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with each other Guarantor, the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will shall remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand replaced by the Trustee, forthwith pay, or cause to be paid, guarantees and pledge agreements set forth in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes Section 3.9 of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.Agreement:
(i) No Issuers or KH LLC shall execute a non-recourse guaranty in favor of the Subsidiary Guarantors will Senior Lenders pursuant to which KH LLC shall guaranty amounts owed by KGI under the Senior Loan Facility, which shall be required to make secured by a notation first priority lien on the Notes capital stock of Holdings and KSI owned by KH LLC;
(ii) KH LLC shall execute a non-recourse guaranty and related pledge agreement in favor of the TCP Purchasers pursuant to reflect any Subsidiary Guarantee or any releasewhich KH LLC shall guaranty amounts owed by KGI under the Amended and Restated TCP Purchase Agreement, termination or discharge thereof which shall be secured by a second priority lien on the capital stock of Holdings and any such notation will not KSI owned by KH LLC; and
(iii) KH LLC shall execute a non-recourse guaranty in favor of the Mezzanine Purchasers pursuant to which KH LLC shall guaranty amounts owed by KGI under the Amended and Restated Securities Purchase Agreement (which guaranty shall be a condition limited to amounts received with respect to capital stock of Holdings and KSI owned by KH LLC), subject to the validity of any Guaranteeprior perfected liens on such shares.
Appears in 1 contract
Guarantees. (a) Subject As soon as possible and in any event within 3 months of the Closing Date, the Borrower shall cause the Target to Guarantee the Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the Lenders and shall cause the Target to deliver to the provisions of Administrative Agent (A) a joinder to this Article X, each Subsidiary Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with each other Guarantor, the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest Agreement in the related bankruptcy proceedingform attached as Exhibit E, (B) all documents and other information reasonably requested by the Lenders in order to allow the Holders and Lenders to comply with the TrusteePatriot Act, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all C) customary legal opinions substantially similar to those delivered pursuant to Section 4.01(b) (with such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations changes as may be extended or renewedappropriate to reflect local law concerns), in whole or in part, without notice or further assent from it, (D) customary closing documents substantially similar to those delivered pursuant to Section 4.01(c) and that it will remain bound (E) other documentation required under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligationapplicable Laws.
(b) Each In the event that any Subsidiary Guarantor waives of the Borrower incurs (as co-borrower or co-issuer with the Borrower) or guarantees any Indebtedness of the Borrower owed to a Person other than the Borrower or any Subsidiary, in excess of an aggregate principal amount of $350,000,000 for all such Indebtedness of such Subsidiary with respect to the extent lawful) presentation toBorrower, demand of, payment from then the Borrower shall cause each such Subsidiary to Guarantee the Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and protest the Lenders and shall cause each such Subsidiary to deliver to the Issuers of any of Administrative Agent (A) a joinder to this Agreement in the Guaranteed Obligations form attached as Exhibit E, (B) all documents and also waives other information reasonably requested by the Lenders in order to allow the Lenders to comply with the Patriot Act, (C) customary legal opinions substantially similar to the extent lawfulthose delivered pursuant to Section 4.01(b) notice of protest for nonpayment. Each Subsidiary Guarantor waives (with such changes as may be appropriate to the extent lawfulreflect local law concerns), (D) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collectioncustomary closing documents substantially similar to those delivered pursuant to Section 4.01(c) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(dE) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers or any other Person documentation required under this Indenture, the Notes or any other agreement or otherwiseapplicable Laws; (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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwiseprovided that, in the performance event that the Administrative Agent receives evidence reasonably satisfactory to it that any such Guarantor has been released from such obligations in excess of an aggregate principal amount of $350,000,000 for all such Indebtedness of such Subsidiary, then at the request of the Guaranteed Obligations; or Borrower, such Guarantor shall be released from the Guarantee Agreement (viiiand for the avoidance of doubt, such release shall not require the approval of the Lenders) any so long as at the time of and after giving effect to such release, all of such Guarantor’s then outstanding Indebtedness would then be permitted to be incurred at such time under Section 6.01 (other act or thing or omission or delay to do any other act or thing which may or might than, in any manner or to any extent vary the risk case of any Subsidiary Guarantor or would otherwise operate as a discharge the Borrower, Section 6.01(p)) (treating, for this purpose, all Indebtedness of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all being incurred at the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceedingrelease).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 1 contract
Sources: Bridge Credit Agreement (Mylan N.V.)
Guarantees. (a) Subject to the provisions of this Article X, each Subsidiary Each Guarantor hereby jointly and severally, irrevocably, fully severally irrevocably and unconditionally guarantees, guarantees as a primary obligor and not merely as a surety on a senior basis, as guarantor basis to each Holder and not as a surety, with each other Guarantor, to the Indenture Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturitythe Final Maturity Date, by acceleration acceleration, by redemption or otherwise, of all Obligations obligations of the Issuers Issuer under this Indenture (including obligations to the Indenture Trustee and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the TrusteeNotes, whether for payment of principal of, or premium, if any, or interest on on, the Notes and all other monetary obligations of the Issuer under this Indenture and the Notes, and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Issuer, whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes (all such obligations guaranteed by such Subsidiary Guarantors the foregoing being herein hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it will each such Guarantor shall remain bound under this Article X 9 notwithstanding any extension or renewal of any Subsidiary Guaranteed Obligation. The Guaranteed Obligations of a Guarantor Obligationwill be secured by security interests (subject to Permitted Liens) in the Collateral owned by such Guarantor to the extent provided for in the Security Documents and as required pursuant to Sections 4.08, 4.09 and 4.18.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuers Issuer of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (i) the failure of any Holder or the Indenture Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes, any Security Document, or any other agreement or otherwise; (ii) any extension or renewal of this Indenture, the Notes, any Security Document or any other agreement; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes, any Security Document or any other agreement; (iv) the release of any security held by any Holder or the Indenture Trustee for the Guaranteed Obligations or any Guarantor; (v) the failure of any Holder or the Indenture Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (vi) any change in the ownership of such Guarantor, except as provided in Section 9.02(b).
(c) Each Subsidiary Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Guarantors, such that such Guarantor’s obligations would be less than the full amount claimed. Each Guarantor hereby waives any right to which it may be entitled to have the assets of the Issuer or any other Guarantor first be used and depleted as payment of the Issuer’s or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder. Each Guarantor hereby waives any right to which it may be entitled to require that the Issuer be sued prior to an action being initiated against such Guarantor.
(d) Each Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee guarantee of collection) and waives any right to require that any resort be had by any Holder or the Indenture Trustee to any security held for payment of the Guaranteed Obligations.
(de) Except as expressly set forth in Section 10.2 Sections 7.01 and Article VIII9.02, the obligations of each Subsidiary Guarantor hereunder will shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and will shall not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will shall not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder or the Indenture Trustee to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement any Security Document or any other Notes Document; (iv) the release agreement, by any waiver or modification of any security held thereof, by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; obligations, or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such any Guarantor as a matter of law or equity.
(ef) Each Subsidiary Except as expressly set forth in Sections 7.01 and 9.02, each Guarantor agrees that its Subsidiary Guarantee herein will shall remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee Obligations. Except as expressly set forth in compliance with Section 4.1Sections 7.01 and 9.02, Section 10.2 and Article VIII. Each Subsidiary each Guarantor further agrees that its Subsidiary Guarantee herein will 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, premium, if any, of or interest on any of the Guaranteed Obligations Obligation is rescinded or must otherwise be restored by any Holder or the Indenture Trustee upon the bankruptcy or reorganization of the Issuers Issuer or otherwise.
(fg) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Indenture Trustee has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers Issuer to pay the principal of or interest on any of the Guaranteed Obligations Obligation when and as the same will shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and willshall, upon receipt of written demand by the TrusteeIndenture Trustee in accordance with this Indenture, forthwith pay, or cause to be paid, in cash, to the Trustee Holders or the Indenture Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations then due and owing and Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after iii) all other monetary obligations of the filing of any petition in bankruptcy Issuer then due to the Holders or the commencement Indenture Trustee in respect of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)Guaranteed Obligations.
(gh) Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between such Subsidiary Guarantorit, on the one hand, and the HoldersHolders and the Indenture Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee hereby may be accelerated as provided in this Indenture Article 5 for the purposes of its Subsidiary any Guarantee in this Guaranteeherein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee hereby, and (ii) in the event of any such declaration of acceleration of such Guaranteed ObligationsObligations as provided in Article 5, such Guaranteed Obligations (whether or not due and payable) will shall forthwith become due and payable by the such Guarantor for the purposes of this Subsidiary GuaranteeSection 9.01.
(hi) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ feesfees and expenses) incurred by the Indenture Trustee or the Holders any Holder in enforcing any rights under this GuaranteeSection 9.01.
(ij) No Issuers Upon request of the Indenture Trustee, each Guarantor shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity purpose of any Guaranteethis Indenture.
Appears in 1 contract
Sources: Indenture (Imperial Holdings, Inc.)
Guarantees. (a) Subject By its execution hereof, each of the Guarantors acknowledges and agrees that it receives substantial benefits from the Issuers and that such Guarantor is providing its Guarantee for good and valuable consideration, including, without limitation, such substantial benefits and services. Accordingly, subject to the provisions of this Article XXI, each Subsidiary Guarantor Guarantor, including present and future Subsidiaries (other than any Excluded Foreign Subsidiaries, except to the extent required by Section 4.15 hereof) hereby jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, guarantees on a senior basis, as guarantor and not as a surety, with subordinated unsecured basis to each other Guarantor, the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing Holder of a petition in any bankruptcy or other insolvency proceeding with respect to Note authenticated and delivered by the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against Trustee and its successors and assigns that: (i) (A) the Issuers for such interest in the related bankruptcy proceeding) to the Holders Accreted Value of and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due Interest (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premiumLiquidated Damages, if any, or interest ) on any of the Guaranteed Obligations is rescinded or must otherwise Notes shall be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing duly and not punctually paid in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations full when and as the same will become due, whether at maturity, by acceleration, by redemption call for redemption, upon a Change of Control Offer, an Asset Sale Offer or otherwise, (B) Interest on overdue Accreted Value of and premium, if any, and (to the extent permitted by law) Interest on any Interest, if any (and Liquidated Damages, if any), on the Notes shall be promptly paid in full, and (C) all other Obligations of the Issuers to the Holders or the Trustee under the Notes, this Indenture and the Registration Rights Agreement (including fees, expenses or otherwise) shall be duly and punctually paid in full when due and performed, all in accordance with the terms hereof and thereof; and (ii) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, the same shall be duly and punctually paid in full when due and performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration, call for redemption, upon a Change of Control Offer, an Asset Sale Offer or otherwise, subject, however, in the case of clauses (i) and (ii) above, to the limitations set forth in Section 11.6 hereof (such Obligations guaranteed by the Guarantors, collectively, the “Guarantee Obligations”). Subject to the provisions of this Article XI, each Subsidiary Guarantor hereby promises agrees that its Guarantee hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes, this Indenture, or the Registration Rights Agreement or the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any thereof, the entry of any judgment against any of the Issuers, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor hereby waives and will, upon receipt of written demand by relinquishes with respect to its Guarantee Obligations: (a) any right to require the Trustee, forthwith paythe Holders or the Issuers (each, a “Benefited Party”) to proceed against the Issuers, the Subsidiaries or any other Person or to proceed against or exhaust any security held by a Benefited Party at any time or to pursue any other remedy in the Trustee’s power before proceeding against the Guarantors; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) demand, protest and notice of any kind (except as expressly required by this Indenture); (d) any defense based upon an election of remedies by a Benefited Party, including but not limited to an election to proceed against the Guarantors for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Benefited Party’s election, in any proceeding instituted under the Bankruptcy Law, of the application of Section 1111(b)(2) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code. The Guarantors hereby covenant that, except as otherwise provided in the Guarantees, the Guarantees shall not be discharged except by payment in full of all Guarantee Obligations, including the Accreted Value of and premium, if any, and Interest (and Liquidated Damages, if any) on the Notes and all other costs provided for under this Indenture or as provided in Article VIII. If any Holder or the Trustee is required by any court or otherwise to return to either the Issuers or the Guarantors, or cause any trustee or similar official acting in relation to be paideither the Issuers or the Guarantors, in cash, any amount paid by the Issuers or the Guarantors to the Trustee or such Holder, the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each of the Guarantors agrees that it shall not prohibited by law) (including interest accruing after be entitled to any right of subrogation in relation to the filing Holders in respect of any petition Guarantee Obligations hereby until payment in bankruptcy or the commencement full of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary all such Guarantee Obligations. Each Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantorit, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (ix) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture Article VI hereof for the purposes of its Subsidiary Guarantee in this Guaranteehereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee Obligations, and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligationsthe Obligations as provided in Article VI hereof, such Guaranteed Guarantee Obligations (whether or not due and payable) will shall forthwith become due and payable by the such Guarantor for the purposes purpose of this Subsidiary the Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 1 contract
Guarantees. (a) Subject to the provisions of this Article X, each Subsidiary Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with each other Guarantor, the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations All obligations of the Issuers Borrower under this Indenture and the Notes Documents (including Senior Facility and, at the option of the Borrower, under any interest that, but for the filing of a petition in any bankruptcy rate protection or other insolvency proceeding hedging arrangements entered into with respect to the IssuersAgent, would have accrued any Arranger, an entity that is a Lender or agent at the time of such transaction (or on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premiumClosing Date, if anyapplicable), or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers affiliate of any of the Guaranteed Obligations and also waives foregoing (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full“Hedging Arrangements”), including or any claim of waiver, release, surrender, alteration or compromise, and cash management arrangements with any such person (“Cash Management Arrangements”) will not be unconditionally guaranteed (to the extent lawful“Guarantees”) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing Holdings and (ii) accrued each existing and unpaid interest on subsequently acquired or organized wholly-owned domestic subsidiary of the Borrower (other than domestic subsidiaries that are subsidiaries of foreign subsidiaries) (the “Subsidiary Guarantors” and, together with Holdings, the “Guarantors”), subject to exceptions to be agreed upon, including, without limitation, (a) unrestricted subsidiaries, (b) immaterial subsidiaries (to be defined in a manner consistent with the Documentation Precedent as to individual and aggregate revenues or assets excluded), (c) any subsidiary that is prohibited by applicable law, rule, regulation or contract (with respect to any such Guaranteed Obligations then due and owing (but contractual restriction, only to the extent existing on the Closing Date or on the date the applicable person becomes a direct or indirect subsidiary of the Borrower and not prohibited by lawentered into in contemplation thereof) from guaranteeing the Senior Facility or which would require governmental (including interest accruing regulatory) consent, approval, license or authorization to provide a Guarantee (unless such consent, approval, license or authorization has been received), (d) any subsidiary that becomes a subsidiary of Holdings after the filing Closing Date for which the providing of any petition a Guarantee could reasonably be expected to result in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating a material adverse tax consequence to the Issuers Borrower or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed one of its subsidiaries as determined in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on good faith by the one hand, and the Holders, on the other handBorrower, (ie) special purpose receivables or securitization entities designated by the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee Borrower and (iif) in the event case of any obligation under any Hedging Arrangement that constitutes a “swap” within the meaning of section 1(a)(947) of the Commodity Exchange Act, any subsidiary of the Borrower that is not an “Eligible Contract Participant” as defined under the Commodity Exchange Act. Notwithstanding the foregoing, subsidiaries may be excluded from the guarantee requirements in circumstances where the Borrower and the Agent reasonably agree that the cost or other consequence of providing such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders a guarantee is excessive in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition relation to the validity of any Guaranteevalue afforded thereby.
Appears in 1 contract
Sources: Additional Initial Lender Agreement (Pomegranate Merger Sub, Inc.)
Guarantees. (a) Subject to the provisions of this Article X2007 UK Intercreditor Agreement, the First Lien Intercreditor Agreement and any Additional Intercreditor Agreement, each Subsidiary Senior Secured Note Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior basis, as guarantor to each Holder and not as a surety, with each other Guarantor, to the Trustee and its successors and assigns (i) the full and punctual payment of principal of and interest on the Senior Secured Notes when due, whether at Stated Maturitymaturity, by acceleration acceleration, by redemption or otherwise, and all Obligations other monetary obligations of the Issuers under this Senior Secured Notes Indenture and the Senior Secured Notes Documents and (including interest that, but for ii) the filing full and punctual performance within applicable grace periods of a petition in any bankruptcy or all other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against obligations of the Issuers for such interest in the related bankruptcy proceeding) to the Holders under this Senior Secured Notes Indenture and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise Senior Secured Notes (all such obligations guaranteed by such Subsidiary Guarantors the foregoing being herein hereinafter collectively called the “Guaranteed Obligations”), subject to the limitations set forth in Section 10.08; provided, however, that in no event shall a US Controlled Foreign Subsidiary be required to guarantee the Guaranteed Obligations. Each Subsidiary Senior Secured Note Guarantor further agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, such Senior Secured Note Guarantor and that it such Senior Secured Note Guarantor will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Guaranteed Obligation.
(b) Each Subsidiary Senior Secured Note Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Senior Secured Note Guarantor waives (to the extent lawful) notice of any default under the Senior Secured Notes or the Guaranteed Obligations. The obligations of each Senior Secured Note Guarantor hereunder shall not be affected by (1) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuers or any other Person (including any Senior Secured Note Guarantor) under this Senior Secured Notes Indenture, the Senior Secured Notes or any other agreement or otherwise; (2) any extension or renewal of any thereof; (3) any rescission, waiver, amendment or modification of any of the terms or provisions of this Senior Secured Notes Indenture, the Senior Secured Notes or any other agreement; (4) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (5) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (6) except as set forth in Section 10.06, any change in the ownership of such Senior Secured Note Guarantor.
(c) Each Subsidiary Senior Secured Note Guarantor further agrees that its Subsidiary Senior Secured Note Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee 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.
(d) [Reserved.]
(e) Except as expressly set forth in Section 10.2 Article VIII and Article VIIISections 10.02, 10.06 and 10.08, the obligations of each Subsidiary Senior Secured Note Guarantor hereunder will shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and will shall not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Senior Secured Note Guarantor herein will shall not (to the extent lawful) be discharged or impaired or otherwise 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 the Issuers or any other Person under this Senior Secured Notes Indenture, the Senior Secured Notes or any other agreement or otherwise; (ii) agreement, by any extension or renewal of any thereof; (iii) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenturethereof, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; obligations, or (viii) 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 any Subsidiary such Senior Secured Note Guarantor or would otherwise operate as a discharge of such Senior Secured Note Guarantor as a matter of law or equity.
(ef) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Senior Secured Note Guarantor further agrees that its Subsidiary Senior Secured Note Guarantee herein will 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, premium, if any, of or interest on any of the Guaranteed Obligations Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuers any Issuer or otherwise.
(fg) 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 any Subsidiary Senior Secured Note Guarantor by virtue hereof, upon the failure of the Issuers to pay the principal of or interest on any of the Guaranteed Obligations Obligation when and as the same will shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Senior Secured Note Guarantor hereby promises to and willshall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee Holders or the Trustee on behalf of the Holders an amount equal to the sum of (iA) the unpaid amount of such Guaranteed Obligations then due and owing and Obligations, (iiB) accrued and unpaid interest and premiums (if any) on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) and (including interest accruing after C) all other monetary Guaranteed Obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating Issuers to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)Holders and the Trustee.
(gh) Each Subsidiary Senior Secured Note Guarantor further agrees that, as between such Subsidiary Guarantorit, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee hereby may be accelerated as provided in this Indenture Article VI for the purposes of its Subsidiary such Senior Secured Note Guarantor’s Senior Secured Note Guarantee in this Guaranteeherein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee hereby, and (ii) in the event of any such declaration of acceleration of such Guaranteed ObligationsObligations as provided in Article VI, such Guaranteed Obligations (whether or not due and payable) will shall forthwith become due and payable by the such Senior Secured Note Guarantor for the purposes of this Subsidiary GuaranteeSection 10.01.
(hi) Each Subsidiary Senior Secured Note Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) fees and expenses), subject to the limitations set forth in Section 10.08, incurred by the Trustee Trustee, the Collateral Agent or the Holders any Holder in enforcing any rights under this GuaranteeSection 10.01.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 1 contract
Sources: Senior Secured Notes Indenture (Beverage Packaging Holdings (Luxembourg) v S.A.)
Guarantees. (a) Subject The Company shall from time to the provisions of this Article X, time (i) cause each Subsidiary Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guaranteesof the Company that is not an Excluded Subsidiary to become, on a senior basisthe Issue Date or, as guarantor and if such Subsidiary is acquired or created after the Issue Date or such Subsidiary was an Excluded Subsidiary but thereafter is not as a suretyan Excluded Subsidiary, with each other Guarantor, at the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations later of (A) the time of the Issuers acquisition, creation or change in status of such Subsidiary and (B) the time at which such Subsidiary Incurs Indebtedness or such Subsidiary guarantees any Senior Indebtedness of the Company, a guarantor of the obligations of the Company under this Indenture and the Notes Documents by executing this Indenture (including interest that, but for directly or by supplemental indenture) as a Subsidiary Guarantor or by executing a Guarantee in substantially the filing form of Article 15 (provided that the provision of a petition in Guaranty by a Subsidiary after the Issue Date shall be subject to compliance with any bankruptcy or other insolvency proceeding with respect applicable Gaming Laws and the Company agrees that (subject to Section 12.7(b)) it shall not have any such Subsidiary that is not an Excluded Subsidiary unless it is permitted to give such Guarantee under applicable Gaming Laws) and (ii) deliver to the IssuersTrustee an Opinion of Counsel, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) form reasonably satisfactory to the Holders and the Trustee, whether for payment that such Guarantee is the valid, binding and enforceable obligation of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (Guarantor, subject to the extent lawful) that the Guaranteed Obligations may be extended or renewedcustomary exceptions for bankruptcy, in whole or in part, without notice or further assent from it, fraudulent transfer and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligationequitable principles.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as The actions set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not 12.7(a) shall be subject to any reduction, limitation, impairment or termination for any reason (other than payment taken within 10 days of the Guaranteed Obligations in full)time on which any Person is required to become a Subsidiary Guarantor, including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by provided that (i) if such Person is not permitted to give a Guarantee under applicable Gaming Laws, then, unless such
(a) immediately upon consummation of the Merger. Each Note issued after the date of execution by any additional Subsidiary Guarantor of a Guarantee shall be endorsed with a form of Guarantee that has been executed by such Subsidiary Guarantor. However, the failure of any Holder Note to assert have endorsed thereon a Guarantee executed by such Subsidiary Guarantor shall not affect the validity or enforceability of such Guarantee. In the case of a Subsidiary that becomes a Subsidiary Guarantor after the Issue Date as a result of its guarantee of Senior Indebtedness of the Company (and not as a result of its Incurrence of Indebtedness), if such Subsidiary thereafter does not guarantee any claim or demand or Senior Indebtedness and has not Incurred any Indebtedness, then, upon delivery by the Company to enforce any right or remedy against the Issuers or any other Person under this IndentureTrustee of an Officers' Certificate and an Opinion of Counsel, to the effect that such conditions to release of the Subsidiary Guarantee by such Subsidiary have been satisfied, the Notes or Trustee shall execute 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) documents reasonably required in order to evidence the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that Obligations under its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 1 contract
Sources: Indenture (MGM Grand Inc)
Guarantees. (a) Subject to Section 6 hereof, each Guarantor hereby absolutely, unconditionally and irrevocably guarantees (each, a “Guarantee”), on a joint and several basis, to each Holder of 2020 Notes (including each Holder of 2020 Notes issued under the provisions Indenture after the date of this Article X, each Subsidiary Guarantor hereby jointly Amendment No. 2) and severally, irrevocably, fully to the Trustee and unconditionally guarantees, its successors and assigns on a senior basis, as guarantor irrespective of the validity and not as a suretyenforceability of the Indenture, with each other Guarantor, the 2020 Notes or the obligations of the Company hereunder or thereunder (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, of all Obligations monetary obligations of the Issuers Company under this the Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect obligations to the IssuersTrustee) and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company under the Indenture. Each Guarantor further agrees that its obligations hereunder shall be unconditional irrespective of the absence or existence of any action to enforce the same, would have accrued on the recovery of any Obligation, whether or not a claim is allowed judgment against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise Company (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (except to the extent lawfulsuch judgment is paid) or any waiver or amendment of the provisions of the Indenture or the 2020 Notes to the extent that the Guaranteed Obligations may any such action or any similar action would otherwise constitute a legal or equitable discharge or defence of such Guarantor (except that such waiver or amendment shall be extended or renewed, effective in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligationaccordance with its terms).
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, Failing payment from and protest to the Issuers when due of any of amount so guaranteed or any performance so guaranteed for whatever reason, the Guaranteed Obligations Guarantors will be jointly and also waives (severally obligated to pay the extent lawful) notice of protest for nonpaymentsame immediately. Each Subsidiary Guarantor waives (to the extent lawful) notice further agrees that its Guarantee constitutes a guarantee of any default under the Notes or the Guaranteed Obligationspayment, performance and compliance and not merely of collection.
(c) Each Subsidiary Guarantor further agrees Subject to this Section 2 and Section 5 and 6 hereof, the Guarantors hereby agree that its Subsidiary Guarantee herein constitutes a Guarantee their obligations hereunder are unconditional, irrespective of payment when due (and not a Guarantee the validity, regularity or enforceability of collection) and waives the 2020 Notes or the Indenture, the absence of any right action to require that enforce the same, any resort be had waiver or consent by any Holder of the 2020 Notes with respect to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIIIprovisions hereof or thereof, the obligations recovery of each Subsidiary Guarantor hereunder will not be subject any judgment against the Company, any action to enforce the same or any reduction, limitation, impairment other circumstance which might otherwise constitute a legal or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration equitable discharge or compromise, and will not (to the extent lawful) 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 or otherwisea Guarantor. Without limiting the generality of the foregoing, each Guarantor’s liability under this Guarantee shall extend to all obligations under the obligations 2020 Notes and the Indenture (including, without limitation, interest, fees, costs and expenses) that would be owed but for the fact that they are unenforceable or not allowable due to any proceeding under bankruptcy law involving the Company or any Guarantor. Each Guarantor further agrees to waive presentment to, demand of each Subsidiary Guarantor herein will not (payment from and protest to the extent lawful) be discharged Company of its Guarantee, and also waives diligence, notice of acceptance of its Guarantee, presentment, demand for payment, notice of protest for non-payment, the filing of claims with a court in the event of merger or impaired or otherwise affected by (i) bankruptcy of the failure of any Holder to assert any claim or demand or to enforce Company and any right or remedy to require a proceeding first against the Issuers Company or any other Person under this Indenture, Person. The obligations of a Guarantor shall not be affected by any failure or policy on 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 part of the terms or provisions of this Indenture, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder Trustee to exercise any right or remedy against under the Indenture or the 2020 Notes of any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any defaultseries. Subject to Section 5 hereof, failure or delay, willful or otherwise, in the each Guarantor covenants that this Guarantee will not be discharged except by complete performance of the Guaranteed Obligations; obligations contained in the 2020 Notes and the Indenture.
(d) The obligation of a Guarantor to make any payment hereunder may be satisfied by causing the Company or (viii) any other act Guarantor to make such payment. If any Holder of any 2020 Notes or thing the Trustee is required by any court or omission otherwise to return to the Company or delay to do any Guarantor or any custodian, trustee, liquidator or other act or thing which may or might similar official acting in any manner or relation to any extent vary of the risk of Company or any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter any amount paid by any of law them to the Trustee or equitysuch Holder, any applicable Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
(e) Each Subsidiary Guarantor also agrees that its Subsidiary Guarantee herein will remain in full force to pay any and effect until payment in full of all costs and expenses (including reasonable attorneys’ fees) incurred by the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, Trustee or any part thereof, Holder of principal of, premium, if any, or interest on 2020 Notes in enforcing any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwisetheir respective rights under its Guarantee.
(f) In furtherance Each Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders of the foregoing and not 2020 Notes in limitation respect of any other right which any Holder has at law or obligations guaranteed hereby until payment and performance in equity against any Subsidiary Guarantor by virtue hereof, upon the failure full of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) all obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantorthe Guarantors, on the one hand, and the HoldersHolders of the 2020 Notes and the Trustee, on the other hand, (i1) the maturity of the Guaranteed Obligations obligations guaranteed by this Guarantee hereby may be accelerated as provided in this Article VII of the Second Supplemental Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations obligations guaranteed by this Guarantee hereby, and (ii2) in the event of any such declaration of acceleration of such Guaranteed Obligationsobligations as provided in Article VII of the Second Supplemental Indenture, such Guaranteed Obligations obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor Guarantors for the purposes purpose of this Subsidiary Guarantee. The Guarantors will have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders of the 2020 Notes under the Guarantee.
(hg) Each Subsidiary Guarantor also agrees Any term or provision of this Amendment No. 2 to pay any the contrary notwithstanding, the maximum aggregate amount of a Guarantor’s Guarantee shall not exceed the maximum amount that will, after giving effect to such maximum amount and all reasonable costs other contingent and expenses (including attorneys’ fees) incurred fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the Trustee or the Holders in enforcing any rights obligations of such other Guarantor under this Guarantee.
(i) No Issuers Section 2, result in the obligations of such Guarantor under its Guarantee not constituting either a fraudulent transfer or conveyance or voidable preference, financial assistance or improper corporate benefit, or violating the Subsidiary Guarantors will be required to make a notation on corporate purpose of the Notes to reflect any Subsidiary Guarantee relevant Guarantor or any release, termination applicable capital maintenance or discharge thereof and similar laws or regulations affecting the rights of creditors generally under any such notation will not be a condition to the validity of any Guaranteeapplicable law or regulation.
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Sources: Amendment No. 2 to Second Supplemental Indenture (International Game Technology PLC)
Guarantees. (a) Subject Alcoa hereby, jointly and severally with the other Guarantors, unconditionally and irrevocably guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the provisions Trustee and its successors and assigns, irrespective of this Article X, each Subsidiary Guarantor hereby jointly the validity and severally, irrevocably, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with each other Guarantorenforceability of the Indenture, the full Notes or the obligations of the Issuers or any other Guarantors to the Holders or the Trustee hereunder or thereunder: (a) (x) the due and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or and interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will shall become duedue and payable, whether at maturity, by accelerationupon redemption or repurchase, by redemption acceleration or otherwise, (y) the due and punctual payment of interest on the overdue principal and (to the extent permitted by law) interest, if any, on the Notes and (z) the due and punctual payment and performance of all other obligations of the Issuer and all other obligations of the other Guarantors (including under the Note Guarantees), in each Subsidiary Guarantor hereby promises case, to the Holders or the Trustee hereunder or thereunder (including amounts due the Trustee under Section 7.07 of the Indenture), all in accordance with the terms hereof and willthereof (collectively, the “Guarantee Obligations”); and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the due and punctual payment and performance of Guarantee Obligations in accordance with the terms of the extension or renewal, whether at maturity, upon receipt redemption or repurchase, by acceleration or otherwise. Failing payment when due of written demand by any amount so guaranteed, or failing performance of any other obligation of the TrusteeIssuers to the Holders under the Indenture or under the Notes, forthwith for whatever reason, Alcoa shall be obligated to pay, or to perform or cause the performance of, the same immediately. A Default under the Indenture or the Notes shall constitute an event of default under the Note Guarantees, and shall entitle the Holders of Notes to be paid, accelerate the obligations of Alcoa thereunder in cash, the same manner and to the Trustee or same extent as the Trustee on behalf obligations of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)Issuers.
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 1 contract
Guarantees. (a) Subject to Each of the provisions Borrowers shall deliver unconditional guarantees in respect of this Article X, each Subsidiary Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with each other Guarantor, the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations of the Issuers under this Indenture other Borrower and the Notes Documents (including interest thatOther Secured Obligations, but in each case in favour of the Agent for the filing benefit of the Lenders. The Borrowers shall, subject to this Section, deliver or cause the delivery of unconditional guarantees of the Obligations and the Other Secured Obligations by each of the Material Subsidiaries, in each case in favour of the Agent for the benefit of the Lenders. The Guarantees shall be in form and substance satisfactory to the Lenders and must be unlimited except for limits imposed under Applicable Law or the Constating Documents of the respective Obligors. Hudbay shall use commercially reasonable efforts to amend or remove any limitation on or prohibition of guarantees in the Constating Documents of any of the Borrowers or the Material Subsidiaries, except that Hudbay need not request the consent of any Arm's Length third party other than by seeking a Permit that is normally available without material expense. The Borrowers shall not be required to deliver or cause the delivery of a petition guarantee by a Material Subsidiary (i) if the delivery of such guarantee is prohibited by Applicable Law or would result in any bankruptcy the breach of a Material Agreement (to which such Material Subsidiary is party with another Person at Arm's Length from the Hudbay Group) or other insolvency proceeding with respect Hudbay and the Agent (each acting reasonably) determine that the provision of the guarantee would have a material adverse tax consequence to the Issuers, would have accrued on any Obligation, whether Hudbay Group or (ii) which is not a claim is allowed against the Issuers direct or indirect wholly-owned Subsidiary of Hudbay; provided that (ii) above will not be applicable if any other Person who owns any Equity Interest in such Subsidiary acquired such Equity Interest for such interest in the related bankruptcy proceeding) consideration not equal to the Holders and fair market value of such Equity Interest or acquired or retained such Equity Interest in order to invoke the Trustee, whether for payment provision of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawfulSection 3.1(a)(ii) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each If at any time either Borrower establishes or acquires a Material Subsidiary, or a Subsidiary Guarantor waives (that was not previously a Material Subsidiary becomes a Material Subsidiary or any Material Subsidiary that was previously unable to the extent lawful) presentation to, demand of, payment from and protest be an Obligor is able to the Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIIIbecome an Obligor, the obligations of each Subsidiary Guarantor hereunder will not be Borrowers shall, subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in fullSection 3.1(a), including any claim promptly cause that Subsidiary to become an Obligor, adopt this Agreement by delivering an agreement in the form of waiver, release, surrender, alteration or compromise, and will not (Schedule 3.1(b) so as to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or bound by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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 all of the terms or provisions of applicable to Obligors as if it had executed this Indenture, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one handObligor, and the Holders, on the other hand, (ideliver a Guarantee as required by Section 3.1(a) the maturity of the Guaranteed Obligations guaranteed and deliver Guarantor Security Documents as required by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary GuaranteeSection 4.2.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 1 contract
Guarantees. (a) Subject The Borrower shall deliver an unconditional guarantee of the Other Secured Obligations in favour of the Agent for the benefit of the Lenders. The Borrower shall, subject to this Section, deliver or cause the delivery of unconditional guarantees of the Obligations and the Other Secured Obligations by each of the Material Subsidiaries, in each case in favour of the Agent for the benefit of the Lenders. The Guarantees shall be in form and substance satisfactory to the provisions of this Article X, each Subsidiary Guarantor hereby jointly Lenders and severally, irrevocably, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with each other Guarantor, must be unlimited except for limits imposed under Applicable Law or the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations Constating Documents of the Issuers under this Indenture respective Obligors. Hudbay shall use commercially reasonable efforts to amend or remove any limitation on or prohibition of guarantees in the Constating Documents of the Borrower or the Material Subsidiaries, except that Hudbay need not request the consent of any Arm's Length third party other than by seeking a Permit that is normally available without material expense. The Borrower shall not be required to deliver or cause the delivery of a guarantee by a Material Subsidiary (i) if the delivery of such guarantee is prohibited by Applicable Law or would result in the breach of a Material Agreement (to which such Material Subsidiary is party with another Person at Arm's Length from the Hudbay Group) or the Borrower and the Notes Documents Agent (including interest that, but for each acting reasonably) determine that the filing provision of the guarantee would have a petition in any bankruptcy or other insolvency proceeding with respect material adverse tax consequence to the Issuers, would have accrued on any Obligation, whether Hudbay Group or (ii) which is not a claim is allowed against the Issuers direct or indirect wholly-owned Subsidiary of Hudbay; provided that (ii) above will not be applicable if any other Person who owns any Equity Interest in such Subsidiary acquired such Equity Interest for such interest in the related bankruptcy proceeding) consideration not equal to the Holders and fair market value of such Equity Interest or acquired or retained such Equity Interest in order to invoke the Trustee, whether for payment provision of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawfulSection 3.1(a)(ii) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each If at any time the Borrower establishes or acquires a Material Subsidiary, or a Subsidiary Guarantor waives (that was not previously a Material Subsidiary becomes a Material Subsidiary or any Material Subsidiary that was previously unable to the extent lawful) presentation to, demand of, payment from and protest be an Obligor is able to the Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIIIbecome an Obligor, the obligations of each Subsidiary Guarantor hereunder will not be Borrower shall, subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in fullSection 3.1(a), including any claim promptly cause that Subsidiary to become an Obligor, adopt this Agreement by delivering an agreement in the form of waiver, release, surrender, alteration or compromise, and will not (Schedule 3.1(b) so as to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or bound by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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 all of the terms or provisions of applicable to Obligors as if it had executed this Indenture, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one handObligor, and the Holders, on the other hand, (ideliver a Guarantee as required by Section 3.1(a) the maturity of the Guaranteed Obligations guaranteed and deliver Guarantor Security Documents as required by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary GuaranteeSection 4.2.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 1 contract
Guarantees. (a) Subject to If the provisions Company or any of this Article Xits Restricted Subsidiaries acquires or creates another Domestic Subsidiary on or after the Issue Date, each then that newly acquired or created Domestic Subsidiary shall become a Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on execute a senior basis, as guarantor and not as a surety, with each other Guarantor, the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest supplemental indenture substantially in the related bankruptcy proceeding) form of Exhibit E hereto and deliver an Opinion of Counsel to the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or each case in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligationaccordance with Section 10.05 hereof.
(b) Each The Company shall not permit any of its Restricted Subsidiaries, directly or indirectly, to Guarantee or pledge any assets to secure the payment of any other Indebtedness of the Company or any other Guarantor unless such Restricted Subsidiary is a Guarantor waives (or simultaneously executes and delivers to the extent lawful) presentation to, demand of, payment from Trustee an Opinion of Counsel and protest to a supplemental indenture substantially in the Issuers form of any Exhibit E hereto providing for the Guarantee of the Guaranteed Obligations and also waives (to the extent lawful) notice payment of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes by such Restricted Subsidiary, which Note Guarantee shall be senior to or the Guaranteed Obligationspari passu with such Restricted Subsidiary’s Guarantee of such other Indebtedness.
(c) Each Subsidiary A Guarantor further agrees may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge with or into (whether or not such Guarantor is the surviving Person), another Person, other than the Company or another Guarantor, unless:
(1) immediately after giving effect to that its Subsidiary Guarantee herein constitutes a Guarantee transaction, no Default or Event of payment when due Default exists; and
(and not a Guarantee 2) either:
(a) the Person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation or merger (if other than the Guarantor) is organized or existing under the laws of collection(w) and waives the United States, any right to require that state thereof or the District of Columbia, (x) Canada or any resort be had by province or territory thereof, (y) the European Union or any Holder to any security held for payment member state thereof or (z) the laws of the Guaranteed Obligationsjurisdiction of incorporation of the Guarantor and assumes all the obligations of that Guarantor under this Indenture, its Note Guarantee and the Registration Rights Agreement pursuant to a supplemental indenture satisfactory to the Trustee; or
(b) such sale or other disposition or consolidation or merger complies with Section 4.12 hereof.
(d) Except as set forth The Note Guarantee of a Guarantor shall be released:
(1) in Section 10.2 and Article VIII, connection with any sale or other disposition of Capital Stock of a Guarantor (or the obligations direct or indirect parent company of each such Guarantor) following which such Guarantor is no longer a Restricted Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full)Company, including if the sale of such Capital Stock complies with Section 4.12 hereof;
(2) if the Company properly designates any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Restricted Subsidiary that is a Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers or any other Person as an Unrestricted Subsidiary under this Indenture, ;
(3) solely in the Notes or any other agreement or otherwise; case of a Note Guarantee created pursuant to paragraph (iib) 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof4.18, upon the failure release or discharge of the Issuers Guarantee or pledge of assets which resulted in the creation of such Note Guarantee pursuant to pay any this Section 4.18, except a discharge or release by or as a result of payment under such Guarantee or pledge of assets; or
(4) the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand exercise by the Trustee, forthwith pay, Company of its Legal Defeasance or cause to be paid, in cash, to the Trustee Covenant Defeasance option under Article 8 hereof or the Trustee on behalf discharge of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guaranteeunder Article 11 hereof.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 1 contract
Sources: Indenture (Stratos Funding, LP)
Guarantees. (a) Subject to the provisions Each of this Article XAOL and Time Warner hereby, each Subsidiary Guarantor hereby jointly and severally, irrevocablyunconditionally and irrevocably guarantees to the Administrative Agent, fully for the ratable benefit of the Lenders and unconditionally guaranteestheir respective successors, on a senior basisindorsees, as guarantor transferees and not as a surety, with each other Guarantorassigns, the full prompt and punctual complete payment and performance by the Designated Borrowers when due, due (whether at Stated Maturitythe stated maturity, by acceleration or otherwise, all Obligations ) of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (AOLTW hereby, jointly and severally, unconditionally and irrevocably guarantees to the extent lawful) presentation toAdministrative Agent, demand of, payment from and protest to for the Issuers of any ratable benefit of the Guaranteed Lenders and their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by AOLTWFI when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed ObligationsAOLTWFI.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of TBS and TWCI hereby, jointly and severally, unconditionally and irrevocably guarantees to the Administrative Agent, for the ratable benefit of the Lenders and their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by Time Warner when due (whether at the stated maturity, by acceleration or otherwise) of its obligations and not a liabilities under this Guarantee of collection(the "Time Warner Obligations") and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligationsincluding under Section 2(a) hereof.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary This Guarantee herein will shall remain in full force and effect until payment the Obligations are paid in full full, no Letter of all the Guaranteed Obligations or Credit shall be outstanding (unless such Subsidiary Guarantor Letter of Credit is released from its Subsidiary Guarantee cash collateralized in compliance accordance with Section 4.12.05(c) of the Credit Agreement) and the Commitments are terminated, Section 10.2 and Article VIII. notwithstanding that from time to time prior thereto either one or both of the Designated Borrowers may be free from any Obligations.
(e) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstatedwhenever, as the case may be, if at any time paymenttime, or from time to time, it shall make any part thereofpayment to the Administrative Agent or any Lender on account of its liability hereunder, of principal of, premium, if any, or interest on any of it will notify the Guaranteed Obligations Administrative Agent and such Lender in writing that such payment is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwisemade under this Guarantee for such purpose.
(f) In furtherance of the foregoing and not Anything herein or in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, Credit Document to the Trustee or contrary notwithstanding, the Trustee on behalf maximum liability of each Guarantor hereunder and under the Holders an other Credit Documents shall in no event exceed the amount equal to the sum of (i) the unpaid amount of which can be guaranteed by such Guaranteed Obligations then due Guarantor under applicable federal and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding state laws relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed insolvency of debtors (after giving effect to the right of contribution established in such proceedingSection 3 hereof).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity No payment or payments made by either of the Guaranteed Designated Borrowers, any of the Guarantors, any other guarantor or any other Person or received or collected by the Administrative Agent or any Lender from either of the Designated Borrowers, any of the Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any setoff or appropriation or payment of the Obligations guaranteed by this Guarantee may shall be accelerated as provided in this Indenture for deemed to modify, reduce, release or otherwise affect the purposes liability of its Subsidiary Guarantee in this Guaranteeany Guarantor hereunder who shall, notwithstanding any stay, injunction such payment or payments (other prohibition preventing than payments made by such acceleration Guarantor in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) or payments received or collected from such Guarantor in respect of the Obligations), remain liable for the Obligations and, in the event case of any such declaration of acceleration TBS and TWCI, the Time Warner Obligations, up to the maximum liability of such Guaranteed ObligationsGuarantor hereunder until the Obligations are paid in full, no Letter of Credit shall be outstanding (unless such Guaranteed Obligations (whether or not due Letter of Credit is cash collateralized in accordance with Section 2.05(c) of the Credit Agreement) and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary GuaranteeCommitments are terminated.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 1 contract
Guarantees. (a) Subject to the provisions of this Article X, each Subsidiary Guarantor The Guarantors hereby jointly and severally, irrevocably, fully and unconditionally guaranteesguarantee, on a senior basis, unsecured basis and as guarantor primary obligor and not merely as a surety, jointly and severally with each other Guarantor, to each Holder and the Trustee the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration acceleration, by redemption or otherwise, all Obligations of the Issuers principal of, premium and additional amounts, if any, and interest on the Notes and all other obligations and liabilities of the Issuer under this Indenture and the Notes Documents (including without limitation interest that, but for accruing after the filing of a any petition in bankruptcy, or the commencement of any bankruptcy insolvency, reorganization or other insolvency proceeding with respect like proceeding, relating to the IssuersIssuer, would have accrued on the Company or any Obligation, Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed against the Issuers for in such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors the foregoing being herein hereinafter collectively called the “Guaranteed Obligations”). The Obligations of each of the Guarantors under the Notes Guarantees shall rank equally in right of payment with other Indebtedness of each such Guarantor, except to the extent such other Indebtedness is expressly subordinate to the obligations arising under the Notes Guarantee. Each Subsidiary Guarantor further agrees (to the extent lawfulpermitted by law) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will shall remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) . Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuers Issuer of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
. The obligations of each Guarantor hereunder shall not be affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuer or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; or (f) any change in the ownership of the Issuer or the Company. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the . The obligations of each Subsidiary Guarantor hereunder will shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will shall not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will shall not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (ii) agreement, by any extension or renewal of any thereof; (iii) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenturethereof, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; , or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) . Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will shall remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee upon the merger, amalgamation or the sale of all the Capital Stock or all or substantially all of the assets of the Guarantor in compliance with Section 4.1, Section 10.2 and Article VIIIor otherwise in accordance with the terms of this Indenture. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will 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, premium, if any, of or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers Issuer or otherwise.
(f) . In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers Issuer to pay any of the Guaranteed Obligations when and as the same will shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and willshall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) . Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (ix) the maturity of the Guaranteed Obligations guaranteed by this Guarantee hereby may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guaranteeherein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will shall forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) . Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this GuaranteeSection.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 1 contract
Sources: Indenture (Quiksilver Inc)
Guarantees. (a) Subject to the provisions of this Article XEach Asset Entity hereby unconditionally and irrevocably guarantees, each Subsidiary Guarantor hereby jointly and severally, irrevocably, fully to each Holder and unconditionally guarantees, on a senior basis, as guarantor to the Indenture Trustee and not as a surety, with each other Guarantor, the Servicer and their respective successors and assigns (a) the full and punctual payment of principal of and interest on the Notes when due, whether at Stated Maturitymaturity, by acceleration acceleration, by redemption or otherwise, and all Obligations other monetary obligations of the Issuers Issuer and the other Asset Entities under this Indenture and the Notes and each other Transaction Document and (b) the full and punctual performance within applicable grace periods of all other obligations of the Issuer and the other Asset Entities under this Indenture and the Notes and all other Transaction Documents (including interest that, but for all the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors foregoing being herein hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor Asset Entity waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers Company of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor Asset Entity waives (to the extent lawful) notice of any default under the Notes or the other Guaranteed Obligations.
. The obligations of each Asset Entity hereunder shall not be affected by (a) the failure of any Holder or the Indenture Trustee or the Servicer to assert any claim or demand or to enforce any right or remedy under the Transaction Documents against any other Obligor or any other Person or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other Transaction Document; (d) the release of any security held by any Holder or the Indenture Trustee for the Obligations or any of them; or (e) the failure of any Holder or the Indenture Trustee or the Servicer to exercise any right or remedy against any other guarantor of the Guaranteed Obligations. Each Subsidiary Guarantor Asset Entity further agrees that its Subsidiary Guarantee guaranty herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee guarantee of collection) and waives any right to require that any resort be had by any Holder or the Indenture Trustee or the Servicer to any security held for payment of the Guaranteed Obligations.
(d) . Except as expressly set forth in Section 10.2 and Article VIIIherein, the obligations of each Subsidiary Guarantor Asset Entity hereunder will shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and will shall not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor Asset Entity herein will shall not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder or the Indenture Trustee or the Servicer to assert any claim or demand or to enforce any right or remedy against the Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (ii) agreement, by any extension or renewal of any thereof; (iii) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenturethereof, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; obligations, or (viii) 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 any Subsidiary Guarantor such Asset Entity or would otherwise operate as a discharge of such Guarantor Asset Entity as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor Asset Entity further agrees that its Subsidiary Guarantee guaranty herein will 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, premium, if any, of or interest on any of the Guaranteed Obligations Obligation is rescinded or must otherwise be restored by any Holder or the Indenture Trustee or the Servicer upon the bankruptcy or reorganization of the Issuers Issuer or otherwise.
(f) . In furtherance of the foregoing and not in limitation of any other right which any Holder or the Indenture Trustee or the Servicer has at law or in equity against any Subsidiary Guarantor Asset Entity by virtue hereof, upon the failure of the Issuers Issuer to pay the principal of or interest on any of the Guaranteed Obligations Obligation when and as the same will shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor Asset Entity hereby promises to and willshall, upon receipt of written demand by the Indenture Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Indenture Trustee or the Trustee on behalf of Servicer, as the Holders case may be, an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and Obligations, (ii) accrued and unpaid interest on such Obligations and (iii) all other monetary Guaranteed Obligations then due and owing (but only of the Issuer to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, Holders and the Holders, on Indenture Trustee and the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Servicer. Each Subsidiary Guarantor Asset Entity also agrees to pay any and all reasonable costs and expenses (including including, but not limited to, reasonable attorneys’ feesfees and expenses and court costs) incurred by the Indenture Trustee or the Holders Servicer in enforcing any rights under this Guarantee.
(i) No Issuers or Section. Notwithstanding any payment made by any Asset Entity hereunder, such Asset Entity shall not be entitled to be subrogated to any of the Subsidiary Guarantors will be required to make a notation on rights of the Notes to reflect any Subsidiary Guarantee Indenture Trustee against the Obligors or any releasecollateral security or guarantee or right of offset held by the Indenture Trustee for the payment of the Obligations, termination nor shall the Asset Entity seek or discharge thereof be entitled to seek any contribution or reimbursement from the Obligors in respect of payments made by the Asset Entity hereunder, until the Obligations are paid in full. If any amount shall be paid to an Asset Entity on account of such subrogation rights at any time when all of the Obligations shall not have been paid in full, such amount shall be held by such Asset Entity in trust for the Indenture Trustee, segregated from other funds of such Asset Entity, and any shall, forthwith upon receipt by such notation will not Asset Entity, be a condition turned over to the validity of any GuaranteeIndenture Trustee in the exact form received by such Asset Entity (duly indorsed by such Asset Entity to the Indenture Trustee, if required), to be applied against the Obligations, whether matured or unmatured, in such order as the Indenture Trustee may determine.
Appears in 1 contract
Sources: Indenture (American Tower Corp /Ma/)
Guarantees. (a) Subject to the provisions of this Article X, each Subsidiary Each Guarantor hereby unconditionally guarantees, jointly and severally, irrevocably, fully to each Holder and unconditionally guarantees, on a senior basis, as guarantor to the Trustee and not as a surety, with each other Guarantor, its successors and assigns (a) the full and punctual payment of principal of (and premium, if any) and interest on the Securities when due, whether at Stated Maturity, by acceleration acceleration, by redemption or otherwise, and all Obligations other monetary obligations of the Issuers Issuer under this Indenture and the Notes Documents Securities and (including interest that, but for b) the filing full and punctual performance within applicable grace periods of a petition in any bankruptcy or all other insolvency proceeding with respect to obligations of the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders Issuer under this Indenture and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise Securities (all such obligations guaranteed by such Subsidiary Guarantors the foregoing being herein hereinafter collectively called the “Guaranteed "Obligations”"). Each Subsidiary Guarantor further agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from itsuch Guarantor, and that it such Guarantor will remain bound under this Article X Thirteen notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) . Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers Issuer of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes Securities or the Guaranteed Obligations.
. The obligations of each Guarantor hereunder shall not be affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Securities or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Securities or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) any change in the ownership of such Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Note Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee 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.
(d) . Except as expressly set forth in Section 10.2 Sections 805, 806, 1017, 1019, 1202, 1203, 1303 and Article VIII1308, the obligations of each Subsidiary Guarantor hereunder will shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and will shall not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will shall not (to the extent lawful) be discharged or impaired or otherwise 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 the Issuers or any other Person under this Indenture, the Notes Securities or any other agreement or otherwise; (ii) agreement, by any extension or renewal of any thereof; (iii) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenturethereof, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; obligations, or (viii) 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 any Subsidiary such Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Note Guarantee herein will 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, of (or premium, if any, ) or interest on any of the Guaranteed Obligations Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuers Issuer or otherwise.
(f) . 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 any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers Issuer to pay the principal of (or premium, if any) or interest on any of the Guaranteed Obligations Obligation when and as the same will shall become due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Obligation, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) and (including interest accruing after iii) all other monetary Obligations of the filing Issuer to the Holders and the Trustee. Each Guarantor agrees that it shall not be entitled to any right of subrogation in respect of any petition Obligations guaranteed hereby until payment in bankruptcy or the commencement full in cash of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) all Obligations. Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantorit, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (ix) the maturity of the Guaranteed Obligations guaranteed by this Guarantee hereby may be accelerated as provided in this Indenture Article Five for the purposes of its Subsidiary such Guarantor's Note Guarantee in this Guaranteeherein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee hereby, and (iiy) in the event of any such declaration of acceleration of such Guaranteed ObligationsObligations as provided in Article Five, such Guaranteed Obligations (whether or not due and payable) will shall forthwith become due and payable by the such Guarantor for the purposes of this Subsidiary Guarantee.
(h) Section. Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ ' fees) incurred by the Trustee or the Holders any Holder in enforcing any rights under this GuaranteeSection 1301.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 1 contract
Guarantees. (a) Subject Each Guarantor hereby absolutely, unconditionally and irrevocably guarantees (each, a “Guarantee”), on a joint and several basis, to each Holder of 2019 Notes (including each Holder of 2019 Notes issued under the Indenture after the date of this Amendment No. [ ]) and to the provisions of this Article X, each Subsidiary Guarantor hereby jointly Trustee and severally, irrevocably, fully its successors and unconditionally guarantees, assigns on a senior basis, as guarantor irrespective of the validity and not as a suretyenforceability of this Indenture, with each other Guarantor, the 2019 Notes or the obligations of the Company hereunder or thereunder (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, of all Obligations monetary obligations of the Issuers Company under this the Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect obligations to the IssuersTrustee) and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company under the Indenture. Each Guarantor further agrees that its obligations hereunder shall be unconditional irrespective of the absence or existence of any action to enforce the same, would have accrued on the recovery of any Obligation, whether or not a claim is allowed judgment against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise Company (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (except to the extent lawfulsuch judgment is paid) or any waiver or amendment of the provisions of the Indenture or the 2019 Notes to the extent that the Guaranteed Obligations may any such action or any similar action would otherwise constitute a legal or equitable discharge or defence of such Guarantor (except that such waiver or amendment shall be extended or renewed, effective in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligationaccordance with its terms).
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, Failing payment from and protest to the Issuers when due of any of amount so guaranteed or any performance so guaranteed for whatever reason, the Guaranteed Obligations Guarantors will be jointly and also waives (severally obligated to pay the extent lawful) notice of protest for nonpaymentsame immediately. Each Subsidiary Guarantor waives (to the extent lawful) notice further agrees that its Guarantee constitutes a guarantee of any default under the Notes or the Guaranteed Obligationspayment, performance and compliance and not merely of collection.
(c) Each Subsidiary Guarantor further agrees Subject to this Section 2 and Section 5 hereof, the Guarantors hereby agree that its Subsidiary Guarantee herein constitutes a Guarantee their obligations hereunder are unconditional, irrespective of payment when due (and not a Guarantee the validity, regularity or enforceability of collection) and waives the 2019 Notes or this Indenture, the absence of any right action to require that enforce the same, any resort be had waiver or consent by any Holder of the 2019 Notes with respect to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIIIprovisions hereof or thereof, the obligations recovery of each Subsidiary Guarantor hereunder will not be subject any judgment against the Company, any action to enforce the same or any reduction, limitation, impairment other circumstance which might otherwise constitute a legal or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration equitable discharge or compromise, and will not (to the extent lawful) 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 or otherwisea Guarantor. Without limiting the generality of the foregoing, each Guarantor’s liability under this Guarantee shall extend to all obligations under the obligations 2019 Notes and the Indenture (including, without limitation, interest, fees, costs and expenses) that would be owed but for the fact that they are unenforceable or not allowable due to any proceeding under bankruptcy law involving the Company or any Guarantor. Each Guarantor further agrees to waive presentment to, demand of each Subsidiary Guarantor herein will not (payment from and protest to the extent lawful) be discharged Company of its Guarantee, and also waives diligence, notice of acceptance of its Guarantee, presentment, demand for payment, notice of protest for non-payment, the filing of claims with a court in the event of merger or impaired or otherwise affected by (i) bankruptcy of the failure of any Holder to assert any claim or demand or to enforce Company and any right or remedy to require a proceeding first against the Issuers Company or any other Person under this Indenture, Person. The obligations of a Guarantor shall not be affected by any failure or policy on 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 part of the terms or provisions of this Indenture, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder Trustee to exercise any right or remedy against under the Indenture or the 2019 Notes of any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any defaultseries. Subject to Section 5 hereof, failure or delay, willful or otherwise, in the each Guarantor covenants that this Guarantee will not be discharged except by complete performance of the Guaranteed Obligations; obligations contained in the 2019 Notes and this Indenture.
(d) The obligation of a Guarantor to make any payment hereunder may be satisfied by causing the Company or (viii) any other act Guarantor to make such payment. If any Holder of any 2019 Notes or thing the Trustee is required by any court or omission otherwise to return to the Company or delay to do any Guarantor or any custodian, trustee, liquidator or other act or thing which may or might similar official acting in any manner or relation to any extent vary of the risk of Company or any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter any amount paid by any of law them to the Trustee or equitysuch Holder, any applicable Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
(e) Each Subsidiary Guarantor also agrees that its Subsidiary Guarantee herein will remain in full force to pay any and effect until payment in full of all costs and expenses (including reasonable attorneys’ fees) incurred by the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, Trustee or any part thereof, Holder of principal of, premium, if any, or interest on 2019 Notes in enforcing any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwisetheir respective rights under its Guarantee.
(f) In furtherance Each Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders of the foregoing and not 2019 Notes in limitation respect of any other right which any Holder has at law or obligations guaranteed hereby until payment and performance in equity against any Subsidiary Guarantor by virtue hereof, upon the failure full of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) all obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantorthe Guarantors, on the one hand, and the HoldersHolders of the 2019 Notes and the Trustee, on the other hand, (i1) the maturity of the Guaranteed Obligations obligations guaranteed by this Guarantee hereby may be accelerated as provided in this Article VII of the First Supplemental Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations obligations guaranteed by this Guarantee hereby, and (ii2) in the event of any such declaration of acceleration of such Guaranteed Obligationsobligations as provided in Article VII of the First Supplemental Indenture, such Guaranteed Obligations obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor Guarantors for the purposes purpose of this Subsidiary Guarantee. The Guarantors will have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders of the 2019 Notes under the Guarantee.
(hg) Each Subsidiary Guarantor also agrees Any term or provision of this Amendment No. [ ] to pay any the contrary notwithstanding, the maximum aggregate amount of a Guarantor’s Guarantee shall not exceed the maximum amount that will, after giving effect to such maximum amount and all reasonable costs other contingent and expenses (including attorneys’ fees) incurred fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the Trustee or the Holders in enforcing any rights obligations of such other Guarantor under this Guarantee.
(i) No Issuers Section 2, result in the obligations of such Guarantor under its Guarantee not constituting either a fraudulent transfer or conveyance or voidable preference, financial assistance or improper corporate benefit, or violating the Subsidiary Guarantors will be required to make a notation on corporate purpose of the Notes to reflect any Subsidiary Guarantee relevant Guarantor or any release, termination applicable capital maintenance or discharge thereof and similar laws or regulations affecting the rights of creditors generally under any such notation will not be a condition to the validity of any Guaranteeapplicable law or regulation.
Appears in 1 contract
Sources: Amendment No. 1 to First Supplemental Indenture (International Game Technology)
Guarantees. (a1) Subject to the provisions of this Article X, each Subsidiary Each Guarantor hereby fully and unconditionally, and jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, severally with each other Guarantor, guarantees (i) to each Holder of each Offered Security that is authenticated and delivered by the full Trustee, and (ii) to the Trustee on behalf of such Holder, the due and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, and interest (including post-petition interest under Bankruptcy Law) on such Offered Security when and as the same shall become due and payable, whether at the Stated Maturity, by acceleration, call for redemption or interest on otherwise, in accordance with the Notesterms of such Offered Security and of the Indenture and such other Obligations under such Offered Security and the Indenture. In case of the failure of the Company punctually to make any such payment, expenseseach Guarantor hereby agrees to cause such payment to be made punctually when and as the same shall become due and payable, indemnification whether at the Stated Maturity or otherwise (all by acceleration, call for redemption or otherwise, and as if such obligations guaranteed payment were made by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”)Company. Each Subsidiary Guarantor agrees (The Guarantors, jointly and severally, agree to pay, in addition to the extent lawfulamount stated above, any and all costs and expenses (including reasonable attorneys’ fees and expenses) that incurred by the Guaranteed Obligations may be extended Trustee or renewed, any Holder in whole or in part, without notice or further assent from it, and that it will remain bound enforcing any rights under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligationthe Guarantees.
(b2) Each Subsidiary Guarantor waives (hereby agrees that its obligations hereunder shall be absolute and unconditional irrespective of, and shall be unaffected by, the validity, regularity or enforceability of such Offered Security or the Indenture, the absence of any action to enforce the same or any release, amendment, waiver or indulgence granted to the extent lawful) presentation to, demand of, payment Company or such Guarantor or any consent to departure from and protest to the Issuers any requirement of any other guarantee of all or any of the Guaranteed Offered Securities or other Obligations under the Offered Securities and also waives (to the extent lawful) notice Indenture or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of protest for nonpaymenta surety or guarantor. Each Subsidiary Guarantor hereby waives (to the extent lawful) notice benefits of diligence, presentment, demand for payment, any default under requirement that the Notes Trustee or any of the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes Holders protect, secure, perfect or insure any security interest in or other lien on any property subject thereto or exhaust any right or take any action against the Company or any other Person or any collateral, filing of claims with a Guarantee court in the event of payment when due (and not a Guarantee insolvency or bankruptcy of collection) and waives the Company, any right to require a proceeding first against the Company, protest or notice with respect to such Offered Security or the indebtedness evidenced thereby or other Obligations under the Offered Securities and the Indenture and all demands whatsoever, and covenants that any resort this Guarantee will not be had discharged in respect of such Offered Security or other Obligations under the Offered Securities and the Indenture except by any Holder to any security held for payment complete performance of the Guaranteed Obligationsobligations contained in such Security and in such Guarantee. Each Guarantor agrees that if, after the occurrence and during the continuance of an Event of Default, the Trustee or any of the Holders of the Offered Securities are prevented by applicable law from exercising their respective rights to accelerate the maturity of such Offered Securities, to collect interest on such Offered Securities, or to enforce or exercise any other right or remedy with respect to such Offered Securities or other Obligations under the Offered Securities and the Indenture, each Guarantor agrees to pay to the Trustee for the account of such Holders or for its own account, as the case may be, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of such Holders.
(d3) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary The Guarantee herein will shall remain in full force and effect until payment in full and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any part of the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1Company’s assets, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of such Offered Securities or other Obligations under the Offered Securities and the Indenture, is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any Holder of such Offered Securities or by the Trustee, whether as a “voidable preference,” “fraudulent transfer,” or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, of principal ofis rescinded, premiumreduced, if anyrestored or returned, such Offered Securities or interest on any of other Obligations under the Guaranteed Obligations is rescinded Offered Securities and the Indenture shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwisereturned.
(f4) In furtherance case any provision of any Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the foregoing and remaining provisions shall not in limitation of any other right which any Holder has at law way be affected or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause impaired thereby. Each payment to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited made by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary a Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this its Guarantee and (ii) in the event shall be made without set-off, counterclaim, reduction or diminution of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether kind or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guaranteenature.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 1 contract
Guarantees. (a) Subject to the provisions of this Article X, each Each Subsidiary Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, irrevocably, fully to each Holder and unconditionally guarantees, on a senior basis, as guarantor to the Trustee and not as a surety, with each other Guarantor, its successors and assigns (a) the full and punctual payment of principal of and interest on the Notes when due, whether at Stated Maturitymaturity, by acceleration acceleration, by redemption or otherwise, and all Obligations other monetary obligations of the Issuers under this Indenture and the Notes Documents and (including interest that, but for b) the filing full and punctual performance within applicable grace periods of a petition in any bankruptcy or all other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against obligations of the Issuers for such interest in the related bankruptcy proceeding) to the Holders under this Indenture and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise Notes (all such obligations guaranteed by such Subsidiary Guarantors the foregoing being herein hereinafter collectively called the “Guaranteed "Obligations”"). Each Subsidiary Guarantor further agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, such Subsidiary Guarantor and that it such Subsidiary Guarantor will remain bound under this Article X 10 notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) . Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the . The obligations of each Subsidiary Guarantor hereunder will shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (ia) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (iib) any extension or renewal of any thereof; (iiic) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Documentagreement; (ivd) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (ve) the failure of any Holder or the Trustee to exercise any right or remedy against any other Guarantorguarantor of the Obligations; or (vif) any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guaranty herein 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 Issuers; (vii) Trustee to any security held for payment of the Obligations. Except as expressly set forth in Sections 8.1(b), 10.2 and 10.6, the obligations of each Subsidiary Guarantor hereunder 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 set off, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein 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 of modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; obligations, or (viii) 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 any such Subsidiary Guarantor or would otherwise operate as a discharge of such Subsidiary Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will 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, premium, if any, of or interest on any of the Guaranteed Obligations Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) . 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 any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay the principal of or interest on any of the Guaranteed Obligations Obligation when and as the same will shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Obligation, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, cash to the Trustee Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) and (including interest accruing after iii) all other monetary Obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating Issuers to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Holders and the Trustee. Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantorit, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (ix) the maturity of the Obligations Guaranteed Obligations guaranteed by this Guarantee hereby may be accelerated as provided in this Indenture Article 6 for the purposes of its such Subsidiary Guarantee in this GuaranteeGuarantor's Subsidiary Guaranty herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the any Obligations Guaranteed Obligations guaranteed by this Guarantee hereby, and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligationsobligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) will shall forthwith become due and payable by the such Subsidiary Guarantor for the purposes of this Section. Each Subsidiary Guarantee.
Guarantor may consolidate with or merge into or sell its assets to Issuers or another Subsidiary Guarantor without limitation. Each Subsidiary Guarantor may consolidate with or merge into or sell all or substantially all its assets to a Person other than Issuers or another Subsidiary Guarantor (hwhether or not affiliated with the Subsidiary Guarantor). Upon the sale or disposition (by merger or otherwise) of a Subsidiary Guarantor (or all Subsidiary or substantially all of its assets) to a Person (whether or not an Affiliate of the Subsidiary Guarantor) which is not a Subsidiary of Issuers, which sale or disposition is otherwise in compliance with this Indenture (including Section 4.6), such Subsidiary Guarantor shall be deemed released from all its obligations under this Indenture and its Subsidiary Guarantee and such Subsidiary Guarantee shall terminate; provided, however, that any such termination shall occur only to the extent that all obligations of such Subsidiary Guarantor under the Bank Facility and all of its Guarantees of, and under all of its pledges of assets or other security interests which secure, any other Indebtedness of the Issuers shall also terminate upon such release, sale or transfer. Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ ' fees) incurred by the Trustee or the Holders any Holder in enforcing any rights under this GuaranteeSection.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 1 contract
Sources: Indenture (Chiles Magellan LLC)
Guarantees. (a) Subject to 12.1 In consideration of the provisions Purchaser entering into this Agreement with the Vendor at the request of this Article X, each Subsidiary Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with each other the Guarantor, the full Guarantor hereby irrevocably and unconditionally, as primary obligor, undertakes and guarantees to the Purchaser (as separate undertakings and guarantees) the full, prompt and complete performance by the Vendor of all its obligations under this Agreement (which for the purposes of this clause 11 shall be defined to include the Tax Indemnity) and the due and punctual payment of all sums now or subsequently payable by the Vendor to the Purchaser under this Agreement when due, whether at Stated Maturity, the same shall become due and undertakes with the Purchaser that if the Vendor shall default in the payment of any sum under this Agreement the Guarantor shall forthwith on demand by acceleration or otherwise, the Purchaser pay such sum to the Purchaser.
12.2 The guarantees contained in clause 12.1 are continuing guarantees and shall remain in force until all Obligations the obligations of the Issuers Vendor under this Indenture Agreement have been fully performed and all sums payable by the Notes Documents (including interest thatVendor under this Agreement have been fully paid.
12.3 The obligations of the Guarantor shall not be affected by any act, omission, matter or thing which, but for this provision, might operate to release or otherwise exonerate the filing of a petition in any bankruptcy Guarantor from its obligations or other insolvency proceeding with respect to the Issuersaffect such obligations, would have accrued on any Obligation, including without limitation and whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) known to the Holders and the TrusteeGuarantor:-
12.3.1 any time, whether for payment of principal ofindulgence, premium, if any, waiver or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (consent at any time given to the extent lawful) that the Guaranteed Obligations may be extended Vendor or renewed, in whole any other person;
12.3.2 any compromise or in part, without notice release of or further assent abstention from it, and that it will remain bound under this Article X notwithstanding any extension perfecting or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce enforcing any right or remedy against the Issuers Vendor or any other Person under this Indentureperson;
12.3.3 any legal limitation, disability, incapacity or other circumstance relating to the Notes Vendor or any other agreement person or otherwise; (ii) any extension amendment to or renewal of any thereof; (iii) any rescission, waiver, amendment or modification of any variation of the terms or provisions of this Indenture, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Documentdocument referred to in this Agreement; (iv) the release and
12.3.4 any irregularity, unenforceability or invalidity of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership obligations of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee Vendor under this Agreement or the Trustee on behalf dissolution, amalgamation, reconstruction or insolvency of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.the
Appears in 1 contract
Guarantees. (a) Subject to the provisions of this Article X, The Company will cause (i) each Subsidiary Guarantor hereby jointly and severallythat delivers a guarantee, irrevocably, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with each other Guarantor, the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations directly or indirectly, incurs a Contingent Obligation, in respect of obligations under the Issuers under this Indenture and the Notes Documents (including interest thatSenior Note Purchase Documents, but for the filing of or otherwise becomes liable as a petition in any bankruptcy borrower, co-borrower or other insolvency proceeding obligor under the Senior Note Purchase Documents, to concurrently execute and deliver to the Administrative Agent a Guaranty with respect to the IssuersSecured Obligations and (ii) each Material Domestic Subsidiary to execute and deliver to the Administrative Agent a Guaranty with respect to all Secured Obligations. The Company will cause each Subsidiary of any Foreign Subsidiary Borrower, would have accrued on any other than Modine Holding GmbH, that delivers a guarantee, or otherwise incurs a Contingent Obligation, whether to any Person (other than to another Subsidiary or not a claim is allowed against the Issuers for such interest Company) in the related bankruptcy proceeding) respect of any Material Indebtedness to concurrently execute and deliver to the Holders and the Trustee, whether for payment Administrative Agent a Guaranty with respect to all Secured Obligations of principal of, premiumsuch Foreign Subsidiary Borrower, if anyrequested by the Administrative Agent and subject to the exceptions set forth in Section 5.09(d), or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (solely to the extent lawfulthat (i) such Subsidiary is legally permitted to do so, (ii) such Subsidiary is not rendered insolvent by such Guaranty, (iii) such Guaranty will not result in adverse tax consequences or a default under any other agreement of the Company or its Subsidiaries, (iv) the cost of obtaining such Guaranty justifies the benefits to the Lenders from obtaining such Guaranty as reasonably determined by the Administrative Agent, (v) the Company and the Administrative Agent do not otherwise determine to exclude such Subsidiary from this Guaranty requirement and (vi) such Guaranty is not prohibited, impractical or disproportionately expensive under applicable law or the applicable joint venture agreement for any Foreign Subsidiary that is a joint venture. Notwithstanding any provision of this Agreement to the Guaranteed Obligations may contrary, no Excluded Subsidiary shall be extended required to deliver a Guaranty pursuant to this Section 5.09. If the foregoing clause (ii) requires the addition of one or renewedmore Domestic Subsidiaries as Guarantors based on assets as of the end of a fiscal quarter and/or revenues during the period of four fiscal quarters ended as of the end of a fiscal quarter, in whole then the addition of such Domestic Subsidiary or in part, without notice Domestic Subsidiaries as a Guarantor or further assent from it, and that it will remain bound Guarantors shall be consummated on or prior to the date upon which the Company’s delivery of financial statements under this Article X notwithstanding any extension or renewal Section 5.01 after the end of any Subsidiary Guarantor Obligationsuch fiscal quarter is due.
(b) Each The Company will cause each Subsidiary Guarantor waives (required to deliver a Guaranty hereunder to also deliver, together with the extent lawful) presentation todelivery of such Guaranty, demand ofsuch other documents, payment from opinions and protest to information as the Issuers Administrative Agent may reasonably require regarding such Subsidiary and the enforceability of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligationssuch Guaranty.
(c) Each Without limiting any other right to release provided by this Agreement or any other Loan Document, the Collateral Agent shall, and the Lenders hereby authorize the Collateral Agent to, discharge and release any Subsidiary from a Guaranty to which it is a party pursuant to the written request of the Company; provided that (i) such Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee has been, or is being simultaneously, released and discharged as an obligor and guarantor under and in respect of payment when due all Material Indebtedness (and or is otherwise not a Guarantee of collectionan obligor or guarantor with respect to any Material Indebtedness) and waives any right the Company so certifies to require the Lenders in a certificate which accompanies such request for release and discharge, (ii) such Guaranty is not required under Section 5.09(a) and (iii) at the time of such release and discharge, the Company shall deliver a certificate to the Collateral Agent the effect that any resort be had by any Holder to any security held for payment no Default or Event of the Guaranteed ObligationsDefault exists.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of Notwithstanding the foregoing, the obligations Company shall not be obligated to cause certain Foreign Subsidiaries to deliver the Guaranties required under this Section 5.09 or cause the pledge of each Subsidiary Guarantor herein will not (the Capital Stock of certain Foreign Subsidiaries to the extent lawfulthat all such Subsidiaries (other than Excluded Subsidiaries) be discharged that have not delivered the Guaranties required under this Section 5.09 and all such Foreign Subsidiaries (excluding all Foreign Subsidiaries organized under the laws of India or impaired China) that do not have 65% or otherwise affected by (imore of their Capital Stock pledged under Section 5.11(a)(i) would not constitute a Significant Subsidiary as of the failure end of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate Fiscal Year if considered as a discharge of such Guarantor as a matter of law or equityone Subsidiary.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 1 contract
Guarantees. (a) Subject to For good and valuable consideration, the provisions receipt and sufficiency of this Article Xwhich are hereby acknowledged, each Subsidiary Guarantor of the Guarantors hereby jointly and severally, irrevocably, fully severally and irrevocably and unconditionally guaranteesguarantees to the Trustee and to each Holder of a Security authenticated and delivered by the Trustee irrespective of the validity or enforceability of this Indenture or the Securities or the Obligations of the Company and the Guarantors under this Indenture, that: (i) the principal of, premium, if any, and any interest, on the Securities (including, without limitation, any interest that accrues after the filing of a senior basisproceeding of the type described in Sections 6.01(e) and (f)), as guarantor Liquidated Damages, if any, on the Securities and not as a suretyany fees, with each expenses and other Guarantor, the amounts owing under this Indenture will be duly and punctually paid in full and punctual payment when due, whether at Stated Maturity, by acceleration acceleration, call for redemption, upon a Purchase Notice, a Change in Control Offer, purchase or otherwise, and interest on the overdue principal and (to the extent permitted by law) interest, if any, on the Securities and any other amounts due in respect of the Securities, and all other Obligations of the Issuers Company and the Guarantors to the Holders of the Securities under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any ObligationSecurities, whether now or not a claim is allowed against hereafter existing, will be promptly paid in full or performed, all strictly in accordance with the Issuers for such interest in the related bankruptcy proceeding) to the Holders terms hereof and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwiseSecurities; (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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event case of any such declaration extension of acceleration time of payment or renewal of any Securities or any of such Guaranteed other Obligations, such Guaranteed Obligations (the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration, call for redemption, upon a Purchase Notice, a Change in Control Offer, purchase or otherwise. If payment is not made when due of any amount so guaranteed for whatever reason, each Guarantor shall be jointly and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees severally obligated to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.same individually
Appears in 1 contract
Sources: Indenture (Grey Wolf Inc)
Guarantees. (a) Subject Each Alenco Guarantor hereby, jointly and severally with the other Guarantors, unconditionally and irrevocably guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the provisions Trustee and its successors and assigns, irrespective of this Article X, each Subsidiary Guarantor hereby jointly the validity and severally, irrevocably, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with each other Guarantorenforceability of the Indenture, the full Notes or the obligations of the Issuers or any other Guarantors to the Holders or the Trustee hereunder or thereunder: (a) (x) the due and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or and interest on the NotesNotes when and as the same shall become due and payable, expenseswhether at maturity, indemnification upon redemption or otherwise repurchase, by acceleration or otherwise, (all such obligations guaranteed by such Subsidiary Guarantors being herein called y) the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees due and punctual payment of interest on the overdue principal and (to the extent lawfulpermitted by law) that interest, if any, on the Guaranteed Obligations may be extended or renewedNotes and (z) the due and punctual payment and performance of all other obligations of the Issuer and all other obligations of the other Guarantors (including under the Note Guarantees), in whole each case, to the Holders or the Trustee hereunder or thereunder (including amounts due the Trustee under Section 7.07 of the Indenture), all in partaccordance with the terms hereof and thereof (collectively, without notice or further assent from it, the “Guarantee Obligations”); and that it will remain bound under this Article X notwithstanding (b) in case of any extension of time of payment or renewal of any Subsidiary Notes or any of such other obligations, the due and punctual payment and performance of Guarantee Obligations in accordance with the terms of the extension or renewal, whether at maturity, upon redemption or repurchase, by acceleration or otherwise. Failing payment when due of any amount so guaranteed, or failing performance of any other obligation of the Issuers to the Holders under the Indenture or under the Notes, for whatever reason, each Alenco Guarantor Obligationshall be obligated to pay, or to perform or cause the performance of, the same immediately. A Default under the Indenture or the Notes shall constitute an event of default under the Note Guarantees, and shall entitle the Holders of Notes to accelerate the obligations of each Alenco Guarantor thereunder in the same manner and to the same extent as the obligations of the Issuers.
(b) Each Subsidiary Alenco Guarantor, the Trustee and each Holder by its acceptance of a Note hereby agrees that the Note Guarantee of each Alenco Guarantor waives provided hereunder shall be subject to all terms, provisions and conditions in the Indenture that relate to a Note Guarantee (to the extent lawful) presentation toincluding, demand ofwithout limitation, payment from and protest to the Issuers of any Article 11 of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpaymentIndenture). Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Alenco Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (to be bound by, and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment comply with, all provisions of the Guaranteed ObligationsIndenture and Note Guarantee that are applicable to a Guarantor that is a Restricted Subsidiary.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 1 contract
Guarantees. (a) Subject to the provisions of this Article X, each Subsidiary Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with each other Guarantor, the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations All obligations of the Issuers Borrower under this Indenture and the Notes Documents (including Facilities and, at the option of the Borrower, under any interest that, but for the filing of a petition in any bankruptcy rate protection or other insolvency proceeding hedging arrangements entered into with respect to the IssuersAgent, would have accrued any Arranger, an entity that is a Lender or agent at the time of such transaction (or on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premiumClosing Date, if anyapplicable), or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers affiliate of any of the Guaranteed Obligations and also waives foregoing (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full“Hedging Arrangements”), including or any claim of waiver, release, surrender, alteration or compromise, and cash management arrangements with any such person (“Cash Management Arrangements”) will not be unconditionally guaranteed (to the extent lawful“Guarantees”) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing Redwood Holdings and (ii) accrued each existing and unpaid interest on such Guaranteed Obligations then due and owing subsequently acquired or organized wholly-owned domestic subsidiary of the Borrower (but other than domestic subsidiaries that are subsidiaries of foreign subsidiaries of the Borrower that are “controlled foreign corporations” within the meaning of Section 957(a) of the Internal Revenue Code of 1986, as amended (“CFCs”)) (the “Subsidiary Guarantors” and, together with Redwood Holdings, the “Guarantors”), subject to exceptions to be agreed upon, including, without limitation, (a) unrestricted subsidiaries, (b) immaterial subsidiaries (to be defined in a manner consistent with the Documentation Precedent), (c) any subsidiary that is prohibited by applicable law, rule, regulation or contract (with respect to any contractual restriction, only to the extent existing on the Closing Date or the date on which the applicable person becomes a direct or indirect subsidiary of the Borrower and not prohibited by lawincurred in contemplation thereof) from guaranteeing the Facilities or which would require governmental (including interest accruing regulatory) consent, approval, license or authorization to provide a Guarantee (unless such consent, approval, license or authorization has been received), (d) any subsidiary that becomes a subsidiary after the filing Closing Date for which the providing of a Guarantee could reasonably be expected to result in a material adverse tax consequence to the Borrower or one of its subsidiaries as determined in good faith by the Borrower in consultation with the Agent, (e) any subsidiary that owns no material assets other than the equity interests of one or more foreign subsidiaries of the Borrower that are CFCs and/or one or more FSHCOs (a “FSHCO”), and (f) in the case of any petition obligation under any Hedging Arrangement that constitutes a “swap” within the meaning of section 1(a)(947) of the Commodity Exchange Act, any subsidiary of the Borrower that is not an “Eligible Contract Participant” as defined under the Commodity Exchange Act. Notwithstanding the foregoing, subsidiaries may be excluded from the guarantee requirements in bankruptcy circumstances where the Borrower and the Agent reasonably agree that the cost or the commencement other consequence of any insolvency, reorganization or like proceeding relating providing such a guarantee is excessive in relation to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees thatvalue afforded thereby. For the avoidance of doubt, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity no subsidiaries of the Guaranteed Obligations guaranteed Target will be acquired by this Guarantee may the Borrower or its subsidiaries or will be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or Guarantors other prohibition preventing such acceleration than in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary GuaranteeAcquired Business.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 1 contract
Sources: Additional Initial Lender Agreement (Aspen Merger Sub, Inc.)
Guarantees. Each Guarantor of a particular series of Securities hereby unconditionally guarantees (a) Subject each such guarantee to the provisions of this Article Xbe referred to herein as a "Guarantee"), each Subsidiary Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, severally with each other GuarantorGuarantor of the Securities of that series, if any, to each Holder of such Securities authenticated and delivered by the full Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, such Securities or the obligations of the Company hereunder or thereunder, (i) the due and punctual payment when dueof the principal of and any premium or interest on such Securities, whether at Stated Maturitymaturity or on an interest payment date, by acceleration, pursuant to an offer to purchase such Securities or otherwise, and interest on the overdue principal of and interest, if any, on such Securities, if lawful, and all other obligations of the Company to the Holders of such Securities or the Trustee hereunder or thereunder shall be promptly paid in full, all in accordance with the terms hereof and thereof including all amounts payable to the Trustee under Section 6.07 hereof, and (ii) in case of any extension of time of payment or renewal of any such Securities or any of such other obligations, the same shall be promptly paid in full when due or to be performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. If the Company fails to make any payment when due of any amount so guaranteed for whatever reason, all Obligations each Guarantor of the Issuers under this Indenture Securities of that series shall be obligated, jointly and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or severally with each other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premiumGuarantor, if any, or interest on to pay the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”)same immediately. Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further hereby agrees that its Subsidiary Guarantee herein constitutes obligations hereunder shall be continuing, absolute and unconditional, irrespective of, and shall be unaffected by, the validity, regularity or enforceability of the Securities, this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities or the Trustee with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a Guarantee legal or equitable discharge or defense of payment when due (and not such Guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, demand of performance, filing of claims with a Guarantee court in the event of collection) and waives insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, the benefit of discussion, protest, notice and all demand whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Securities guaranteed by such Guarantee, in this Indenture and in this Article Fifteen. If any resort be had Holder of Securities of a series guaranteed hereby or the Trustee is required by any Holder court or otherwise to return to the Company or any security held for payment Guarantor of such Securities, or any custodian, trustee, liquidator or other similar official acting in relation to the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Company or any Guarantor of such Securities, any amount paid by the Company or any Guarantor of such Securities to the Trustee or such Holder, this Article VIIIFifteen, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) be subject theretofore discharged with respect to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge Guarantee of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain Securities, shall be reinstated in full force and effect effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Securities of a series guaranteed hereby by such Guarantor in respect of any obligations guaranteed hereby by such Guarantee until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIIIobligations. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, Holders of Securities of a series guaranteed hereby by such Guarantor and the Trustee on the other hand, (i) the maturity of the Guaranteed Obligations obligations guaranteed hereby by this such Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.Article Five hereof for
Appears in 1 contract
Sources: Indenture (Kerr McGee Corp /De)
Guarantees. (a) Subject to Article XI, the provisions of this Article XIntercreditor Agreement and any Additional Intercreditor Agreement, each Subsidiary Subordinated Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, irrevocably, fully to each Holder and unconditionally guarantees, on a senior basis, as guarantor to the Trustee and not as a surety, with each other Guarantor, its successors and assigns (i) the full and punctual payment of principal of and interest on the Securities when due, whether at Stated Maturitymaturity, by acceleration acceleration, by redemption or otherwise, and all Obligations other monetary obligations of the Issuers Issuer under this Indenture and the Notes Documents Securities and (including interest that, but for ii) the filing full and punctual performance within applicable grace periods of a petition in any bankruptcy or all other insolvency proceeding with respect to obligations of the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders Issuer under this Indenture and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise Securities (all such obligations guaranteed by such Subsidiary Guarantors the foregoing being herein hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Subordinated Guarantor further agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, such Subordinated Guarantor and that it such Subordinated Guarantor will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Guaranteed Obligation.
(b) Each Subsidiary Subordinated Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers Issuer of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Subordinated Guarantor waives (to the extent lawful) notice of any default under the Notes Securities or the Guaranteed Obligations. The obligations of each Subordinated Guarantor hereunder shall not be affected by (1) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person (including any Subordinated Guarantor) under this Indenture, the Securities or any other agreement or otherwise; (2) any extension or renewal of any thereof; (3) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Securities or any other agreement; (4) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (5) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (6) except as set forth in Section 10.06, any change in the ownership of such Subordinated Guarantor.
(c) Each Subsidiary Subordinated Guarantor further agrees that its Subsidiary Subordinated Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee 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.
(d) Except as Each Subordinated Guarantee is, to the extent and in the manner set forth in Section 10.2 the Intercreditor Agreement, any Additional Intercreditor Agreement and Article VIIIXI subordinated and subject in right of payment to the prior payment in full of the principal of and premium, if any, and interest on all Designated Senior Indebtedness of the Subordinated Guarantor giving such Subordinated Guarantee and each Subordinated Guarantee is made subject to such provisions of the Intercreditor Agreement, any Additional Intercreditor Agreement and this Indenture.
(e) Except as expressly set forth in Sections 8.01(b), 10.02 and 10.06, the obligations of each Subsidiary Subordinated Guarantor hereunder will shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and will shall not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Subordinated Guarantor herein will shall not (to the extent lawful) be discharged or impaired or otherwise 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 the Issuers or any other Person under this Indenture, the Notes Securities or any other agreement or otherwise; (ii) agreement, by any extension or renewal of any thereof; (iii) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenturethereof, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; obligations, or (viii) 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 any Subsidiary such Subordinated Guarantor or would otherwise operate as a discharge of such Subordinated Guarantor as a matter of law or equity.
(ef) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Subordinated Guarantor further agrees that its Subsidiary Guarantee herein will 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, premium, if any, of or interest on any of the Guaranteed Obligations Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuers Issuer or otherwise.
(fg) 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 any Subsidiary Subordinated Guarantor by virtue hereof, upon the failure of the Issuers Issuer to pay the principal of or interest on any of the Guaranteed Obligations Obligation when and as the same will shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Subordinated Guarantor hereby promises to and willshall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee Holders or the Trustee on behalf of the Holders an amount equal to the sum of (iA) the unpaid amount of such Guaranteed Obligations then due and owing and Obligations, (iiB) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) and (including interest accruing after C) all other monetary Guaranteed Obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating Issuer to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)Holders and the Trustee.
(gh) Each Subsidiary Subordinated Guarantor agrees that it shall not be entitled to any right of subrogation in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations and all obligations to which the Guaranteed Obligations are subordinated as provided in Article XI. Each Subordinated Guarantor further agrees that, as between such Subsidiary Guarantorit, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee hereby may be accelerated as provided in this Indenture Article 6 for the purposes of its Subsidiary such Subordinated Guarantor’s Subordinated Guarantee in this Guaranteeherein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee hereby, and (ii) in the event of any such declaration of acceleration of such Guaranteed ObligationsObligations as provided in Article VI, such Guaranteed Obligations (whether or not due and payable) will shall forthwith become due and payable by the such Subordinated Guarantor for the purposes of this Subsidiary GuaranteeSection 10.01.
(hi) Each Subsidiary Subordinated Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders any Holder in enforcing any rights under this GuaranteeSection.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 1 contract
Sources: Senior Subordinated Notes Indenture (RenPac Holdings Inc.)
Guarantees. (a) Subject to the provisions of this Article X, each Subsidiary Each Guarantor hereby jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, guarantees on a senior secured basis, as guarantor a primary obligor and not merely as a surety, with to each other GuarantorHolder and the Trustee (acting in any capacity hereunder, including as Collateral Trustee) and their successors and assigns (i) the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration acceleration, by redemption or otherwise, of all Obligations obligations of the Issuers under this Indenture (including obligations to the Trustee) and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the TrusteeSecurities, whether for payment of principal of, premium, if any, or interest (including PIK Interest) on the NotesSecurities and all other monetary obligations of the Issuers under this Indenture and the Securities and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Issuers whether for fees, expenses, indemnification or otherwise under this Indenture and the Securities, on the terms set forth in this Indenture by executing this Indenture. On the Issue Date, the Guarantors will jointly and severally irrevocably and unconditionally guarantee on a senior basis the Securities (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “"Guaranteed Obligations”)") by executing the Indenture. Each Subsidiary Guarantor further agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it will each such Guarantor shall remain bound under this Article X 10 notwithstanding any extension or renewal of any Subsidiary Guarantor Guaranteed Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes Securities or the Guaranteed Obligations.
(c) The obligations of each Guarantor hereunder 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 the Issuers or any other Person under this Indenture, the Securities or any other agreement or otherwise; (ii) any extension or renewal of this Indenture, the Securities or any other agreement; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Securities or any other agreement; (iv) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any Guarantor; (v) the failure of any Holder or Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (vi) any change in the ownership of such Guarantor.
(d) Each Subsidiary Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Guarantors, such that such Guarantor's obligations would be less than the full amount claimed. Each Guarantor hereby waives any right to which it may be entitled to have the assets of any Issuer first be used and depleted as payment of such Issuer's or such Guarantor's obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder. Each Guarantor hereby waives any right to which it may be entitled to require that the Issuers be sued prior to an action being initiated against such Guarantor.
(e) Each Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee 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.
(df) Except as expressly set forth in Section 10.2 Sections 8.01(1)(b), 10.02 and Article VIII10.06, the obligations of each Subsidiary Guarantor hereunder will shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and will shall not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(eg) Each Subsidiary Subject to Section 10.02 hereof, each Guarantor agrees that its Subsidiary Guarantee herein will shall remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIIIObligations. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will 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, premium, if any, of or interest on any of the Guaranteed Obligations Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuers or otherwise.
(fh) 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 any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay the principal of or interest (including PIK Interest) on any of the Guaranteed Obligations Obligation when and as the same will shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and willshall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations then due and owing and Obligations, (ii) accrued and unpaid interest (including PIK Interest) on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after iii) all other monetary obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating Issuers to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)Trustee.
(gi) Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Trustee in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between such Subsidiary Guarantorit, on the one hand, and the HoldersTrustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee hereby may be accelerated as provided in this Indenture Article 6 for the purposes of its Subsidiary any Guarantee in this Guaranteeherein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee hereby, and (ii) in the event of any such declaration of acceleration of such Guaranteed ObligationsObligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) will shall forthwith become due and payable by the such Guarantor for the purposes of this Subsidiary GuaranteeSection 10.01.
(hj) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees' fees and expenses) incurred by the Trustee or the Holders any Holder in enforcing any rights under this GuaranteeSection 10.01. Upon request of the Trustee, each Guarantor shall promptly execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 1 contract
Sources: Indenture (Party City Holdco Inc.)
Guarantees. (a) Subject Each Guarantor, by its execution of this Supplemental Indenture, hereby agrees with each Holder of a Note authenticated and delivered by the Trustee and with the Trustee for itself and on behalf of each such Holder, to be unconditionally bound by the terms and provisions of its Guarantee set forth below and authorizes the Trustee to confirm such Guarantee to the Holder of each such Note of the Issuer, with such Guarantee endorsed thereon, by its authentication, execution and delivery of each such Note by the Trustee. The execution by each Guarantor of this Supplemental Indenture will evidence its Guarantee of the Notes as set forth below, and no endorsement shall be required to appear on any Note. For value received, [GUARANTOR], (the “Guarantor”), hereby fully, irrevocably and unconditionally guarantees to the Holder of the Notes and to the Trustee for itself and on behalf of each such Holder the due and punctual payment of the principal of (and premium, if any, on) and interest on the Notes when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, according to the terms thereof and of the Indenture, and all other amounts owed under the Indenture, all in accordance with and subject to the terms and limitations of the Notes and Article 14 of the Base Indenture. In case of the failure of ▇▇▇▇▇▇▇ FINANCE UNLIMITED COMPANY, a public unlimited company duly organized under the laws of Ireland (herein called the “Issuer,” which term includes any successor Person under such Indenture), to promptly make any such payment of principal (and premium, if any) or interest, or any other payments owed under the Indenture, the Guarantor hereby agrees to cause any such payment of principal (and premium, if any) or interest, and all other amounts owed under the Indenture, to be made promptly when and as the same shall become due and payable, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, and as if such payment were made by the Issuer, subject to the terms and limitations of Article 14 of the Base Indenture. The Guarantor hereby agrees that its obligations under its Guarantee and the Indenture shall be as if it were principal debtor and not merely surety, and shall be absolute and unconditional, joint and several, irrespective of, and shall be unaffected by any failure to enforce the provisions of the Notes or the Indenture, or any waiver, modification or indulgence granted to the Issuer with respect thereto, by the Holder of a Note or the Trustee for such Notes or any other circumstance which may otherwise constitute a legal or equitable discharge of a surety or guarantor; provided, however, that, notwithstanding the foregoing, no such waiver, modification or indulgence shall, without the consent of the Guarantor, increase the principal amount of such Note, or increase the interest rate thereon, or increase any premium payable upon redemption thereof, or alter the Stated Maturity thereof, or increase the principal amount of any Original Issue Discount Security that would be due and payable upon a declaration of acceleration or the maturity thereof pursuant to Article 5 of the Base Indenture. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest or notice with respect to the Notes or the indebtedness evidenced thereby or with respect to any sinking fund or analogous payment required under the Notes and all demands whatsoever, and covenants that the Guarantee of the Guarantor will not be discharged, except, by payment in full of the principal of (and premium, if any, on) and interest on the Notes, or as otherwise set forth in this Indenture; provided, that if any Holder or the Trustee is required by any court or otherwise to return to the Issuer, the Guarantor or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuer or the Guarantor any amount paid either to the Trustee or such Holder, its Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. The Guarantor shall be subrogated to all rights of the Holder of the Notes and the Trustee for the Notes against the Issuer in respect of any amounts paid to such Holder by the Guarantor pursuant to the provisions of this Article XGuarantee; provided, each Subsidiary however, that the Guarantor hereby jointly 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 (and severally, irrevocably, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with each other Guarantor, the full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, all Obligations of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or on) and interest on all Notes of the Notessame series issued under the Indenture shall have been paid in full. This Guarantee shall be governed by and construed in accordance with the laws of the State of New York, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (but without giving effect to applicable principles of conflicts of law to the extent lawful) that the Guaranteed Obligations may application of the law of another jurisdiction would be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligationrequired thereby.
(b) Each Subsidiary Guarantor waives (to Notwithstanding Section 2.1, Section 2.4(a), Section 3.3, Section 14.2 and any other provisions of the extent lawful) presentation toBase Indenture, demand ofand solely for purposes of the Notes, payment from the Guarantors, the Issuer and protest to the Issuers Trustee hereby agree that notwithstanding the absence of the endorsement of any notation of such Guarantee on the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIIINotes, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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 Guarantee of the terms or provisions of this Indenture, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will Guarantors shall remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest all references in the Base Indenture to any Guarantee endorsed on such Guaranteed Obligations then due and owing (but only the Notes shall be deemed to refer to the extent not prohibited by law) (including interest accruing after Guarantee of each of the filing of any petition Guarantors contained in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)this Section 3.01.
(gc) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity The Notes will be guaranteed by any of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for Parent Guarantor’s subsidiaries that provide guarantees under the purposes of its Subsidiary Guarantee in this GuaranteeSenior Secured Credit Facilities, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of which include the Guaranteed Obligations guaranteed by this Guarantee Parent Guarantor’s direct and (ii) indirect wholly-owned subsidiaries organized in the event of any such declaration of acceleration of such Guaranteed ObligationsUnited States, such Guaranteed Obligations (whether or not due Ireland, Belgium and payable) will forthwith become due England and payable by the Guarantor for the purposes of this Subsidiary GuaranteeWales.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 1 contract
Guarantees. (a) Subject to the provisions of this Article X, each Subsidiary Each Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, irrevocably, fully to each Holder and unconditionally guarantees, on a senior basis, as guarantor to the Trustee and not as a surety, with each other Guarantor, its successors and assigns (a) the full and punctual payment of principal of and interest on the Notes when due, whether at Stated Maturitymaturity, by acceleration acceleration, by redemption or otherwise, of all Obligations obligations of the Issuers Company under this Indenture (including obligations to the Trustee) and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the TrusteeNotes, whether for payment of principal of, premium, if any, or interest on in respect of the NotesNotes and all other monetary obligations of the Company under this Indenture and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Notes whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes (all such obligations guaranteed by such Subsidiary Guarantors the foregoing being herein hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, each such Guarantor and that it each such Guarantor will remain bound under this Article X 11 notwithstanding any extension or renewal of any Subsidiary Guarantor Guaranteed Obligation.
(b) . Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers Company of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
. The obligations of each Guarantor hereunder shall not be affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of this Indenture, the Notes or any other agreement; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any Guarantor; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 11.07, any change in the ownership of such Guarantor. Each Subsidiary Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Guarantors, such that such Guarantor’s obligations would be less than the full amount claimed. Each Guarantor hereby waives any right to which it may be entitled to have the assets of the Company first be used and depleted as payment of the Company’s or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder. Each Guarantor hereby waives any right to which it may be entitled to require that the Company be sued prior to an action being initiated against such Guarantor. Each Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee 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.
(d) . Except as expressly set forth in Section 10.2 Sections 11.02 and Article VIII11.07 hereof, the obligations of each Subsidiary Guarantor hereunder will shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and will shall not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will shall not (to the extent lawful) be discharged or impaired or otherwise 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 the Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (ii) agreement, by any extension or renewal of any thereof; (iii) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenturethereof, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; obligations, or (viii) 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 any Subsidiary such Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will 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, premium, if any, of or interest on any of the Guaranteed Obligations Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuers Company or otherwise.
(f) . 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 any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers Company to pay the principal of or interest on any of the Guaranteed Obligations Obligation when and as the same will shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and willshall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i1) the unpaid principal amount of such Guaranteed Obligations then due and owing and Obligations, (ii2) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after 3) all other monetary obligations of the filing Company to the Holders and the Trustee. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any petition Guaranteed Obligations guaranteed hereby until payment in bankruptcy or the commencement full of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) all Guaranteed Obligations. Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantorit, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (ix) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture Article 6 for the purposes of its Subsidiary such Guarantor’s Guarantee in this Guaranteeherein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee hereby, and (iiy) in the event of any such declaration of acceleration of such Guaranteed ObligationsObligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) will shall forthwith become due and payable by the such Guarantor for the purposes of this Subsidiary Guarantee.
(h) Section. Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ feesfees and expenses) incurred by the Trustee or the Holders any Holder in enforcing any rights under this GuaranteeSection. Upon request of the Trustee (which request the Trustee shall under no circumstances be obligated to make), each Guarantor shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 1 contract
Guarantees. (a) Subject to the provisions of this Article X, each Subsidiary Each Guarantor hereby unconditionally guarantees, jointly and severally, irrevocably, fully to each Holder and unconditionally guarantees, on a senior basis, as guarantor to the Trustee and not as a surety, with each other Guarantor, its successors and assigns (a) the full and punctual payment of principal of and interest on the Notes when due, whether at Stated Maturitymaturity, by acceleration acceleration, by redemption or otherwise, and all Obligations other monetary obligations of the Issuers Issuer under this Indenture and the Notes Documents and (including interest that, but for b) the filing full and punctual performance within applicable grace periods of a petition in any bankruptcy or all other insolvency proceeding with respect to obligations of the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders Issuer under this Indenture and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise Notes (all such obligations guaranteed by such Subsidiary Guarantors the foregoing being herein hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, such Guarantor and that it such Guarantor will remain bound under this Article X 10 notwithstanding any extension or renewal of any Subsidiary Guarantor Guaranteed Obligation.
(b) . Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuers Issuer of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the . The obligations of each Subsidiary Guarantor hereunder will shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (ia) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuers Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (iib) any extension or renewal of any thereof; (iiic) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Documentagreement; (ivd) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (ve) the failure of any Holder or the Trustee to exercise any right or remedy against any other Guarantorguarantor of the Obligations; or (vif) except as set forth in Section 10.06, any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIIIGuarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will 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. Each Guarantor further agrees that its Guarantee herein 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, premium, if any, of or interest on any of the Guaranteed Obligations Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuers Issuer or otherwise.
(f) In furtherance . Each Guarantor agrees that it shall not be entitled to any right of the foregoing and not subrogation in limitation respect of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt until payment in full of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such all Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Obligations. Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantorit, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (ix) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture Article 6 for the purposes of its Subsidiary such Guarantor’s Guarantee in this Guaranteeherein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee Obligations, and (iiy) in the event of any such declaration of acceleration of such Guaranteed ObligationsObligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) will shall forthwith become due and payable by the such Guarantor for the purposes of this Subsidiary Guarantee.
(h) Section 10.01. Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders any Holder in enforcing any rights under this GuaranteeSection 10.01.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 1 contract
Guarantees. (a) Subject CCE and Splitco shall each use their commercially reasonable efforts to cause Splitco or one or more of its Subsidiaries (other than any North American Business Entity) to be substituted in all respects for the provisions of this Article X, each Subsidiary Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior basisNorth American Business Entities, as guarantor applicable, and not for the North American Business Entities, as applicable, to be otherwise removed or released, effective as of the Closing, in respect of all obligations of any of the North American Business Entities, as applicable, under each guarantee, indemnity, surety bond, letter of credit and letter of comfort (each, a surety"Guarantee"), with each other Guarantorgiven or obtained by any of the North American Business Entities, as applicable, for the benefit of any of Splitco, the full and punctual payment when dueOther CCE Businesses Entities or the Other CCE Businesses, whether at Stated Maturity, by acceleration or otherwise, all Obligations of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding except with respect to the IssuersGuarantees set forth in Section 3.6(a) of the CCE Disclosure Letter. If CCE and Splitco have been unable to effect any such substitution, would have accrued on removal, release and termination with respect to any Obligationsuch Guarantee following the Closing, whether CCE and Splitco shall continue to use their commercially reasonable efforts to effect such substitution, removal, release and termination as soon as reasonably practicable after the Closing; provided, that from and after Closing, Splitco shall indemnify against, hold harmless and promptly reimburse the North American Business Entities or not a claim is allowed against their respective Affiliates for any payments made by the Issuers North American Business Entities or their respective Affiliates and for such interest in the related bankruptcy proceeding) to Losses of the Holders and the Trustee, whether for payment of principal North American Business Entities or their respective Affiliates arising out of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewedin performing, in whole or in part, without notice any performance obligation in accordance with the underlying obligation under any such Guarantee (except to the extent the performance obligation under any such Guarantee shall have been triggered solely by an act or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal failure to act of any Subsidiary Guarantor Obligationthe applicable guarantor (rather than the underlying obligor)).
(b) Each Subsidiary Guarantor waives (CCE and Splitco shall each use its commercially reasonable efforts to cause one or more of the extent lawful) presentation toNorth American Business Entities to be substituted in all respects for Splitco or any of the Other CCE Businesses Entities, demand ofas applicable, payment from and protest for Splitco or any of the Other CCE Businesses Entities, as applicable, to be otherwise removed or released, effective as of the Issuers Closing, in respect of all obligations of Splitco or any of the Other CCE Businesses Entities, as applicable, under each Guarantee given or obtained by Splitco or any of the Other CCE Businesses Entities, as applicable, for the benefit of any of the Guaranteed Obligations North American Business Entities or the North American Business, except with respect to the Guarantees set forth in Section 3.6(b) of the CCE Disclosure Letter. If CCE and also waives Splitco have been unable to effect any such substitution, removal, release and termination with respect to any such Guarantee following the Closing, CCE and Splitco shall continue to use their commercially reasonable efforts to effect such substitution, removal, release and termination as soon as reasonably practicable after the Closing; provided, that from and after the Closing, CCE shall indemnify against, hold harmless and promptly reimburse Splitco and the Other CCE Businesses Entities for any payments made by Splitco, the Other CCE Businesses Entities or their respective Affiliates and for the Losses of Splitco, the Other CCE Businesses Entities or their respective Affiliates arising out of, or in performing, in whole or in part, any performance obligation in accordance with the underlying obligation under any such Guarantee (except to the extent lawful) notice the performance obligation under any such Guarantee shall have been triggered solely by an act or failure to act of protest for nonpayment. Each Subsidiary Guarantor waives the applicable guarantor (to rather than the extent lawful) notice of any default under the Notes or the Guaranteed Obligationsunderlying obligor)).
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes Between the date of this Agreement and the Closing, CCE and Splitco shall promptly deliver to TCCC a Guarantee copy of payment when due (and any Guarantees arising after the date of this Agreement or otherwise not a Guarantee of collectionincluded on Section 4.25(a) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
(dCCE Disclosure Letter or Section 4.25(b) Except as set forth in Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) 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 or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstatedCCE Disclosure Letter, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwiseapplicable.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
Appears in 1 contract
Sources: Business Separation and Merger Agreement (Coca Cola Co)
Guarantees. There shall be included in determining Consolidated EBITDA for any period, without duplication, (aA) Subject to the provisions Acquired EBITDA of this Article Xany Person, each property, business or asset acquired by the Lead Borrower or any Restricted Subsidiary Guarantor hereby jointly and severallyduring such period (but not the Acquired EBITDA of any related Person, irrevocablyproperty, fully and unconditionally guarantees, on a senior basis, as guarantor and not as a surety, with each other Guarantor, the full and punctual payment when due, whether at Stated Maturity, by acceleration business or otherwise, all Obligations of the Issuers under this Indenture and the Notes Documents (including interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the Issuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the Trustee, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor agrees (assets to the extent lawful) that the Guaranteed Obligations may be extended or renewednot so acquired), in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation tonot subsequently sold, demand transferred or otherwise disposed by the Lead Borrower or such Restricted Subsidiary during such period (each such Person, property, business or asset acquired and not subsequently so disposed of, payment from an “Acquired Entity or Business”) and protest to the Issuers Acquired EBITDA of any Unrestricted Subsidiary that is converted into a Restricted Subsidiary during such period (each, a “Converted Restricted Subsidiary”), based on the actual Acquired EBITDA of such Acquired Entity or Business or Converted Restricted Subsidiary for such period (including the Guaranteed Obligations and also waives (portion thereof occurring prior to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collectionsuch acquisition) and waives any right to require that any resort be had by any Holder to any security held (B) for payment the purposes of compliance with the Guaranteed Obligations.
(d) Except as covenant set forth in Section 10.2 7.09 and Article VIIIthe calculation of the Consolidated First Lien Net Leverage Ratio, the obligations Consolidated Secured Net Leverage Ratio, the Consolidated Total Net Leverage Ratio, 4849-7283-2717 23 and the Consolidated Interest Coverage Ratio, an adjustment in respect of each Acquired Entity or Business equal to the amount of the Pro Forma Adjustment with respect to such Acquired Entity or Business for such period (including the portion thereof occurring prior to such acquisition) as specified in a certificate executed by a Responsible Officer and delivered to the Lenders and the Administrative Agent. There shall be excluded in determining Consolidated EBITDA for any period the Disposed EBITDA of any Person, property, business or asset (other than an Unrestricted Subsidiary) sold, transferred or otherwise disposed of or, closed or classified as discontinued operations (but if such operations are classified as discontinued due to the fact that they are subject to an agreement to dispose of such operations, only when and to the extent such operations are actually disposed of) by the Lead Borrower or any Restricted Subsidiary Guarantor hereunder will not during such period (each such Person, property, business or asset so sold or disposed of, a “Sold Entity or Business”) and the Disposed EBITDA of any Restricted Subsidiary that is converted into an Unrestricted Subsidiary during such period (each a “Converted Unrestricted Subsidiary”), based on the actual Disposed EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary for such period (including the portion thereof occurring prior to such sale, transfer or disposition). Notwithstanding anything to the contrary contained herein, for purposes of determining Consolidated EBITDA under this Agreement for any period that includes any of the fiscal quarters ended on December 31, 2018, March 31, 2019, June 30, 2019 and September 30, 2019 Consolidated EBITDA for such fiscal quarters shall be $28,419,000, $36,219,000, $40,703,000 and $41,511,000, respectively, in each case, as may be subject to any reduction, limitation, impairment or termination adjustment set forth in the immediately preceding paragraph for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and will not (to the extent lawful) be subject four-quarter period with respect to any defense of setoffacquisitions, counterclaim, recoupment dispositions or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers 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, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) 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 any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein will remain in full force and effect until payment in full of all the Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Guaranteed Obligations when and as the same will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing conversions occurring after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)Closing Date.
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed by this Guarantee may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee in this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Guarantee.
(i) No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and any such notation will not be a condition to the validity of any Guarantee.
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Sources: Credit Agreement (Bumble Inc.)