Guarantees. (a) Each Guarantor hereby jointly and severally, irrevocably and unconditionally guarantees on a senior secured basis, as a primary obligor and not merely as a surety, to each Holder and to the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, 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 Notes 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 the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. (b) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives 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 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations. (e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity. (f) Except as set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company or otherwise. (g) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed Obligations. (h) Each 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 it, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01. (i) Each Guarantor also agrees to pay any and all fees and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 2 contracts
Sources: Indenture (Delta Tucker Holdings, Inc.), Indenture (Worldwide Recruiting & Staffing Services LLC)
Guarantees. (a) Each Guarantor hereby that is a party hereto or that executes and delivers a supplemental indenture pursuant to this Indenture shall, upon execution and delivery of such supplemental indenture, fully, unconditionally and irrevocably guarantee, jointly and severally, irrevocably and unconditionally guarantees on a senior secured basis, as a primary obligor and not merely as a surety, to each Holder of the Notes and to the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of all obligations the principal of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, whether for payment of principal of, premium, if any, or interest (including any ) and interest, feesif any, 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 Notes held by the Holders, and all other monetary obligations of the Company Issuer under this Indenture and the Notes and all other Second Lien Obligations and (iithe “Note Obligations”) to 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 Trustee and the Security Documents (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents being hereinafter collectively called the “Guaranteed Obligations”)Holders. Each Guarantor further agrees (to the extent permitted by law) that the Guaranteed Note Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that each such Guarantor it shall remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Note Obligation.
(b) Each Guarantor of the Guarantors waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Note Obligations and also waives notice of protest for nonpayment. Each Guarantor of the Guarantors waives notice of any default under the Notes or the Guaranteed Note Obligations. The obligations of each Guarantor of the Guarantors hereunder shall not be affected by (i1) the failure of any Holder, the Trustee or Collateral Agent Holder to assert any claim or demand or to enforce any right or remedy against the Company Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; , (ii2) any extension or renewal of this Indentureany thereof, the Notes or any other agreement; (iii3) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; , (iv4) the release of any security, if any, security held by any Holder, Holder or the Trustee or Collateral Agent for the Guaranteed Note 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; them or (vi5) any change in the ownership of such Guarantor, except as provided in Section 10.02(b)the Issuer.
(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. 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 Guarantors further agrees that its Guarantee herein constitutes a guarantee of payment, performance and compliance payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder, the Trustee or Collateral Agent Holder to any security held for payment of the Guaranteed Note Obligations.
(ed) Except as expressly set forth in Sections 8.01 and 10.02, the The obligations of each Guarantor of the Guarantors hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Note Obligations in full), 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 Note Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor of the Guarantors herein shall not be discharged or impaired or otherwise affected by the failure of any Holder, the Trustee or Collateral Agent Holder to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligationsNote Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor each of the Guarantors or would otherwise operate as a discharge of any Guarantor the Guarantors as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full Each of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, each Guarantor Guarantors 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 of, premium, if any, or interest interest, if any, on any Guaranteed Obligation of the Note Obligations is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent Holder upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent Holder has at law or in equity against any Guarantor of the Guarantors by virtue hereof, upon the failure of the Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Note Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor of the Guarantors hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Note Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Note Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed Obligations).
(hg) Each 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 Guarantors further agrees that, as between ititself, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (ix) the maturity of the Guaranteed Note Obligations guaranteed hereby may be accelerated as provided in Article 6 this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Note Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article 6Note Obligations, such Guaranteed Note Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01Guarantee.
(ih) Each Guarantor of the Guarantors also agrees to pay any and all fees reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, Trustee or the Collateral Agent or any Holder Holders in enforcing any rights under this Section 10.0110.2.
(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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 2 contracts
Sources: Indenture (Hess Midstream LP), Indenture (Hess Midstream LP)
Guarantees. (a) Each Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder and of the Notes, to the extent lawful, and the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, whether for payment of principal of, premium, if any, or and 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 Notes held by the Holders, and all other monetary obligations Obligations of the Company Issuer under this Indenture and the Notes and all other Second Lien Obligations and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuer or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture, the Notes post-petition interest is allowed in such proceeding and the Security Documents obligations under Section 7.6) (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further 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 each such Guarantorit, and that each such Guarantor it shall remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Guarantor Obligations. The .
(c) Each Guarantor further agrees that its 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 Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (ia) the failure of any Holder, the Trustee or Collateral Agent Holder to assert any claim or demand or to enforce any right or remedy against the Company Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (iib) any extension or renewal of this Indenture, the Notes or any other agreementthereof; (iiic) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (ivd) the release of any security, if any, security held by any Holder, the Trustee or Collateral Agent Holder for the Guaranteed Guarantor Obligations or any Guarantorof them; (ve) the failure of any Holder, Trustee or Collateral Agent Holder to exercise any right or remedy against any other guarantor of the Guaranteed ObligationsGuarantor; or (vif) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
the Issuer; (cg) 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 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, Guarantor Obligations; or by (h) 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 Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 and 10.02, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Except as set forth in Sections 8.01 and 10.02, each 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 of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent Holder upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, Trustee or the Trustee or Collateral Agent on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, 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 applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the Holders, the Trustee and Collateral Agent Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in respect of the Guaranteed Obligationssuch proceeding).
(hg) Each 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 itsuch Guarantor, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article 6 this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article 6Guarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(ih) Each Guarantor also agrees to pay any and all fees reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee, Trustee or the Collateral Agent or any Holder Holders in enforcing any rights under this Section 10.01Section.
(i) None of the Issuer or the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Upon request Each Guarantee of a Guarantor not organized under the laws of the TrusteeUnited States, each Guarantor any state or territory thereof or the District of Columbia shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper subject to carry out more effectively limitations in accordance with local law in the purpose jurisdiction of this Indenture.
(k) Any Guarantee given by any direct or indirect parent organization of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice applicable Guarantor, in each case to the Trustee from such direct or indirect parent of the Companyextent applicable.
Appears in 2 contracts
Sources: Indenture (Allison Transmission Holdings Inc), Indenture (Allison Transmission Holdings Inc)
Guarantees. (a) Each Guarantor (other than the QC Guarantors, who provide a guarantee of collection only and not a guarantee of performance or payment) hereby unconditionally guarantees, jointly and severally, irrevocably and unconditionally guarantees on a senior secured basis, as a primary obligor and not merely as a surety, to each Holder and to the Trustee and its successors and assigns (ia) 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, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, 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 Notes held by the Holders, all other monetary obligations of the Company Issuer under this Indenture and the Notes and all other Second Lien Obligations Note Documents and (iib) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise Issuer under this Indenture, the Notes and the Security Note Documents (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall will remain bound under this Article 10 12 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) . Each Guarantor waives presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (ia) the failure of any Holder, Holder or the Trustee or Collateral Agent to assert any claim or demand or to enforce any right or remedy against the Company Issuer or any other Person person under this Indenture, the Notes or any other agreement or otherwise; (iib) any extension or renewal of this Indenture, the Notes or any other agreementthereof; (iiic) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (ivd) the release of any security, if any, security held by any Holder, Holder or the Trustee or Collateral Agent for the Guaranteed Obligations or of any Guarantorof them; (ve) the failure of any Holder, Holder or the Trustee or Collateral Agent to exercise any right or remedy against any other guarantor Guarantor of the Guaranteed Obligations; or (vif) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
(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. 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 Note 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, Holder or the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) . Except as expressly set forth in Sections 8.01 7.05, 7.06, 9.14, 11.02, 11.03, 12.03 and 10.0212.08, 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 Guarantee of the 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, Holder or the Trustee or Collateral Agent 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 terms thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any such Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, each Each Guarantor further agrees that its Note 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 (or premium, if any) or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, Holder or the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(g) . In furtherance of the foregoing and not in limitation of any other right which any Holder, Holder or the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuer to pay the principal of (or premium, if any) or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shallwill, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, Holders or the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations Obligations of the Company Issuer to the Holders, Holders and the Trustee and Collateral Agent in respect of the Guaranteed Obligations.
(h) Trustee. Each 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 in cash of all Guaranteed Obligations. Each Guarantor further agrees that, as between it, on the one hand, and the Holders, Holders and the Trustee and Collateral AgentTrustee, on the other hand, (ix) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 5 for the purposes of any such Guarantor’s Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (iiy) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 65, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) 12.01. Each Guarantor also agrees to pay any and all fees costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee, the Collateral Agent Trustee or any Holder in enforcing any rights under this Section 10.01.
(j) Upon request 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) 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 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 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 execute and deliver such further instruments and do such further acts as may promptly be reasonably necessary or proper to carry out more effectively made. Notwithstanding the purpose of this Indenture.
(k) Any Guarantee given by any direct or indirect parent foregoing, the guarantee of the Company may QC Guarantors shall be released a guarantee of collection only and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct not a guarantee of performance or indirect parent of the Company.payment
Appears in 2 contracts
Sources: Indenture (Qwest Corp), Indenture (Qwest 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) Each Guarantor hereby jointly and severally, irrevocably and unconditionally guarantees on a senior secured basis, as a primary obligor and not merely as a surety, to each Holder and to the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, of all any obligations of the Company under Seller or the Purchaser (as relevant) which survive termination of this Indenture (including obligations to the Trustee and Collateral Agent) and the Notesagreement, 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 (yb) as to any other debtor relief laws) on the Notes held by the Holders, all other monetary obligations of the Company under Seller or the Purchaser (as relevant) which remained unsatisfied as of the termination of this Indenture agreement.
21.4 The US Guarantor hereby represents and warrants to the Notes and all other Second Lien Obligations and Seller that:
(iia) the full US Guarantor has the power to execute this agreement and punctual performance within applicable grace periods of all other validly perform its obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture, the Notes and the Security Documents (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation.hereunder;
(b) Each the US Guarantor waives presentation to, demand of payment from is a corporation duly organized and protest to validly existing under the Company of any laws of the Guaranteed Obligations and also waives notice State of protest for nonpayment. Each Guarantor waives notice Delaware, United States of any default under the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by America;
(ic) the failure execution, delivery and performance by the US Guarantor 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 its obligations under this Indenture, the Notes agreement do not violate 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 conflict with any of the terms or provisions of this Indenture, the Notes certificate of incorporation 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 by-laws of the Guaranteed Obligations; or (vi) any change in the ownership of such US Guarantor, except as provided in Section 10.02(b).
(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. 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 Guarantee herein constitutes a guarantee the execution, delivery and performance of payment, performance this agreement and compliance when due (the other documents contemplated hereby are within the corporate power and not a guarantee of collection) and waives any right to require that any resort be had by any Holder, the Trustee or Collateral Agent to any security held for payment authority of the Guaranteed Obligations.US Guarantor, have been duly authorized by all necessary corporate action on the part of the US Guarantor and constitute a valid and binding agreements for the US Guarantor, enforceable against it in accordance with its terms;
(e) Except as expressly set forth in Sections 8.01 and 10.02there is no claim, action, lawsuit, arbitration, judicial or administrative proceeding pending or, to 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 knowledge of the invalidityUS Guarantor, illegality threatened against the US Guarantor, which questions the valid execution, delivery or unenforceability performance by the US Guarantor of its obligations under this agreement or any of the Guaranteed Obligations other documents referred to herein, or otherwise. Without limiting the generality consummation by the US Guarantor of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.transaction contemplated hereby;
(f) Except the US Guarantor has filed or furnished, as set forth in Sections 8.01 applicable, all required registration statements, prospectuses, reports, schedules, forms, statements and 10.02, each Guarantor agrees that its Guarantee shall remain in full force other documents (including exhibits and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, each Guarantor further agrees that its Guarantee herein shall 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, and the Trustee or Collateral Agent upon the bankruptcy or reorganization rules and regulations of the Company SEC thereunder applicable to such SEC Reports, and (ii) did not at the time they were filed (or otherwise.if amended or superseded by a filing prior to the 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 misleading. None of the US Guarantor’s subsidiaries is required to file any forms, reports or other documents with the SEC;
(g) In furtherance the financial statements of the foregoing US Guarantor included in the SEC Reports, as of their respective dates, comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the 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 Form 10-Q of the SEC) applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto) and fairly present the consolidated financial position of the US Guarantor and its consolidated subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods then ended (subject, in the case of unaudited statements to normal year-end adjustments);
(h) the US Guarantor has no material liabilities of the type required by US GAAP to 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 the notes thereto, the “Balance Sheet”), or (ii) those incurred in the ordinary course of business since the date of the Balance Sheet, consistent with past practices;
(i) 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 in limitation been (i) any declaration, setting aside or payment of any dividend or other right which any Holder, the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, distribution (whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, stock or property) with respect to any of the Holders, the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed ObligationsUS Guarantor’s capital stock, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to any amendment of any provision of the extent not prohibited by applicable law) and certificate of incorporation or bylaws of, or of any material term of any outstanding security issued by, the US Guarantor, (iii) all 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 authorization of any issuance of any other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent securities in respect of, in lieu of, or in substitution for shares of the Guaranteed Obligationsits capital stock.
(h) Each 21.5 The US Guarantor covenants and agrees that it shall not be entitled 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 right of subrogation in relation to Losses suffered by the Holders in respect of Seller resulting from any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between it, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction US Guarantor’s warranties being untrue or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01inaccurate.
(i) Each Guarantor also agrees to pay any and all fees and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 2 contracts
Sources: Sale and Purchase Agreement (Research Pharmaceutical Services, Inc.), Sale and Purchase Agreement (Research Pharmaceutical Services, Inc.)
Guarantees. (a) Each Guarantor hereby jointly and severally, irrevocably and unconditionally guarantees on a senior secured an unsecured basis, as a primary obligor and not merely as a surety, to each Holder and to the Trustee and its their successors and assigns (i) the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by redemption acceleration or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral AgentTrustee) and the Notes, whether for payment of principal of, premium, if any, or interest (including any intereston, feesif any, 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 Notes held by the Holders, and 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 Indenture and the Security Documents (all the foregoingNotes, in each case strictly in accordance with on the terms of set forth in this IndentureIndenture including, without limitation Section 10.02 hereof, by executing this Indenture (all the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives 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 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 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, Holder or the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(ed) Except as expressly set forth in Sections 8.01 8.01(b), 10.02 and 10.0210.06, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 and 10.02Subject to Section 10.02 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, each 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, Holder or the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, Holder or the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed ObligationsTrustee.
(hg) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders Trustee in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between it, on the one hand, and the Holders, the Trustee and Collateral AgentTrustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(ih) Each Guarantor also agrees to pay any and all fees costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent Trustee or any Holder in enforcing any rights under this Section 10.01.
(j) Upon request of the Trustee, each . 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.
(k) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 2 contracts
Guarantees. (a) Each Guarantor hereby of the Guarantors, as primary obligor and not merely as surety, fully, jointly and severally, irrevocably and unconditionally guarantees on (each, a senior secured basis, as a primary obligor and not merely as a surety“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 principal of, premium, if any, and interest on the Securities when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of and all other monetary obligations of the Company under this Indenture (including obligations to the Trustee and Collateral AgentTrustee) and the Notes, 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 Notes held by the Holders, all other monetary obligations of the Company under this Indenture and the Notes and all other Second Lien Obligations Securities 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 Indenture and the Security Documents (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed ObligationSecurities.
(b) 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 waives presentation (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).
(c) Each of the Guarantors further agrees that each Guarantee constitutes a guarantee of payment, performance and compliance and not merely of collection.
(d) Each of the Guarantors further agrees to waive presentment to, demand of payment from and protest to the Company of or any of the Guaranteed Obligations other Person, and also waives diligence, notice of acceptance of its Guarantee, presentment, demand for payment, notice of protest for nonpayment. Each Guarantor waives 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 filing of claims with a court in the event of merger or Collateral Agent to assert bankruptcy of the Company or any claim or demand or to enforce other Person and any right or remedy to require a proceeding first 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 Person. The obligations of the terms or provisions of this Indenture, the Notes or any other agreement; (iv) the release of any security, if any, held Guarantors shall not be affected by any Holder, failure or policy on the part of 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 under this Indenture or the Securities of 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 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligationsseries.
(e) Except as expressly set forth in Sections 8.01 and 10.02, the obligations The obligation of each Guarantor to make any payment hereunder shall not may 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 satisfied by reason of causing 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes Company or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay Person to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equitymake such payment.
(f) Except as set forth 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 any custodian, trustee, liquidator or other similar official acting in Sections 8.01 and 10.02relation to any of the Company or any Guarantor, each Guarantor agrees that its any amount paid by any of them to the Trustee or such Holder, the Guarantee of such Guarantor, to the extent theretofore discharged, shall remain be reinstated in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company or otherwiseeffect.
(g) In furtherance Any term or provision of this Indenture to the contrary notwithstanding, the maximum aggregate amount of each of the foregoing and Guarantees shall not in limitation of any other right which any Holder, exceed the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand maximum amount that can be guaranteed by the Trustee, forthwith pay, or cause to be paid, in cash, to relevant Guarantor without rendering the Holders, the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed Obligations.
(h) Each 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 it, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any relevant Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) Each Guarantor also agrees to pay any and all fees and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 10.01Indenture voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally.
(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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 2 contracts
Sources: Indenture (Bath Iron Works Corp//), Indenture (Gulfstream Aerospace Corp)
Guarantees. (a) Each Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder and of the Notes, to the extent lawful, and the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, whether for payment of principal of, premium, if any, or and 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 Notes held by the Holders, and all other monetary obligations Obligations of the Company Issuer under this Indenture and the Notes and all other Second Lien Obligations and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuer, or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture, the Notes post-petition interest is allowed in such proceeding and the Security Documents obligations under Section 7.6) (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further 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 each such Guarantorit, and that each such Guarantor it shall remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Guarantor Obligations. The .
(c) Each Guarantor further agrees that its 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 Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (ia) the failure of any Holder, the Trustee or Collateral Agent Holder to assert any claim or demand or to enforce any right or remedy against the Company Issuer or any other Person person under this Indenture, the Notes or any other agreement or otherwise; (iib) any extension or renewal of this Indenture, the Notes or any other agreementthereof; (iiic) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (ivd) the release of any security, if any, security held by any Holder, the Trustee or Collateral Agent Holder for the Guaranteed Guarantor Obligations or any Guarantorof them; (ve) the failure of any Holder, Trustee or Collateral Agent Holder to exercise any right or remedy against any other guarantor of the Guaranteed ObligationsGuarantor; or (vif) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
the Issuer; (cg) 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 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, Guarantor Obligations; or by (h) 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 Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 and 10.02, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII, as applicable. Except as set forth in Sections 8.01 and 10.02, each 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 of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent Holder upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, Trustee or the Trustee or Collateral Agent on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, 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 applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the Holders, the Trustee and Collateral Agent Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in respect of the Guaranteed Obligationssuch proceeding).
(hg) Each 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 itsuch Guarantor, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article 6 this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article 6Guarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(ih) Each Guarantor also agrees to pay any and all fees reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee, Trustee or the Collateral Agent or any Holder Holders in enforcing any rights under this Section 10.0110.1.
(ji) Upon request of Neither the TrusteeIssuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, each Guarantor termination or discharge thereof and any such notation shall execute and deliver such further instruments and do such further acts as may not be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
(k) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice a condition to the Trustee from such direct or indirect parent validity of the Companyany Guarantee.
Appears in 2 contracts
Sources: Indenture (Booz Allen Hamilton Holding Corp), Indenture (Booz Allen Hamilton Holding Corp)
Guarantees. (a) (i) Each Guarantor hereby of the Subsidiary Guarantors hereby, jointly and severally, irrevocably unconditionally and unconditionally irrevocably, guarantees on a senior secured basis, as a primary obligor and not merely as a surety, to each Holder and to the Trustee and its successors and assigns (i) Administrative Agent, for the full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations ratable benefit of the Company under this Indenture (including obligations to Secured Parties the Trustee prompt and Collateral Agent) complete payment and the Notes, 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 Notes held by the Holders, all other monetary obligations performance of the Company under this Indenture and the Notes and all other Second Lien Obligations and (ii) the full Parent Guarantor hereby unconditionally and punctual performance within applicable grace periods of all other obligations irrevocably, guarantees to the Administrative Agent, for the ratable benefit of the Company whether for fees, expenses, indemnification or otherwise under this Indenture, Secured Parties the Notes prompt and complete payment and performance of the Security Documents (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents being hereinafter collectively called the “Guaranteed European Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest Anything herein or in any other Loan Document to the Company contrary notwithstanding, the maximum liability of any each Subsidiary Guarantor hereunder and under the other Loan Documents in respect of the Guaranteed Obligations Obligations, shall in no event exceed the amount which can be guaranteed by such Guarantor under applicable federal and also waives notice state laws relating to the insolvency of protest for nonpayment. Each Guarantor waives notice debtors (after giving effect to the right 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 contribution established in Section 10.02(b2.2).
(c) Each Guarantor hereby waives agrees that the Obligations, may at any right time and from time to which it may be entitled to have its obligations hereunder divided among time exceed 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 liability of such Guarantor hereunder without impairing the guarantees contained in this Section 2 or affecting the rights and depleted as payment remedies of the Company’s Administrative Agent or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor other Secured Party 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’s guarantees contained in this Section 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 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 under the guarantees contained in this Section 2 shall have been satisfied by any Holderpayment in full, the Trustee Commitments have been terminated and either no Letter of Credit shall be outstanding or Collateral Agent each outstanding Letter of Credit has been cash collateralized so that it is fully secured to any security held for payment the reasonable satisfaction of the Guaranteed 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 expressly set forth provided in Sections 8.01 and 10.02Section 4.14, the obligations of each Guarantor hereunder shall not be subject to (i) no payment made by 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 invaliditySubsidiary Guarantors, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes other guarantor or any other agreementPerson 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 any waiver or modification virtue of any thereof, by action or proceeding or any default, failure set-off or delay, willful appropriation or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if application at any time payment, or any part thereof, of principal from time to time in reduction of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent upon the bankruptcy or reorganization in payment of the Company Obligations shall be deemed to modify, reduce, release or otherwise.
(g) In furtherance of otherwise affect the foregoing and not in limitation liability of any other right Subsidiary Guarantor hereunder which any Holder, the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand notwithstanding any such payment (other than any payment made by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent Subsidiary Guarantor in respect of the Guaranteed Obligations.
(h) Each Obligations or any payment received or collected from such 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 it, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations), remain liable for the Obligations guaranteed herebyup 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 fully secured to the reasonable satisfaction of the Administrative Agent and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) Each Guarantor also agrees to pay any and all fees and expenses (including reasonable attorneys’ fees and expenses) incurred no payment made by the TrusteeParent Guarantor, any other guarantor or any other Person or received or collected by the Collateral Administrative Agent or any Holder in enforcing Secured Party from the Parent Guarantor, any rights under this Section 10.01.
(j) Upon request other guarantor or any other Person by virtue of the Trustee, each Guarantor shall execute and deliver such further instruments and do such further acts as may be reasonably necessary any action or proper to carry out more effectively the purpose of this Indenture.
(k) Any Guarantee given by proceeding or any direct set-off or indirect parent of the Company may be released and discharged from all obligations under this Article 10 appropriation or application at any time upon written notice or from time to time in reduction of or in payment of the European Obligations shall be deemed to modify, reduce, release or otherwise affect the liability the Parent Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the Parent Guarantor in respect of the European Obligations or any payment received or collected from the Parent Guarantor in respect of the European Obligations), remain liable for the European Obligations up to the Trustee from such direct or indirect parent maximum liability of the CompanyParent 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) Each Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, unconditionally and irrevocably and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder and of the Notes, to the extent lawful, and the Trustee the performance and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, whether for payment of principal of, premium, if any, or and 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 Notes held by the Holders, and all other monetary obligations of the Company Issuer under this Indenture and the Notes and all other Second Lien Obligations and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuer or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture, the Notes post-petition interest is allowed in such proceeding and the Security Documents obligations under Section 7.6) (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further 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 each such Guarantorit, and that each such Guarantor it shall remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Guarantor Obligations. The .
(c) Each Guarantor further agrees that its 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 Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (ia) the failure of any Holder, the Trustee or Collateral Agent Holder to assert any claim or demand or to enforce any right or remedy against the Company Issuer or any other Person person under this Indenture, the Notes or any other agreement or otherwise; (iib) any extension or renewal of this Indenture, the Notes or any other agreementthereof; (iiic) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (ivd) the release of any security, if any, security held by any Holder, the Trustee or Collateral Agent Holder for the Guaranteed Guarantor Obligations or any Guarantorof them; (ve) the failure of any Holder, Trustee or Collateral Agent Holder to exercise any right or remedy against any other guarantor of the Guaranteed ObligationsGuarantor; or (vif) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
the Issuer; (cg) 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 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, Guarantor Obligations; or by (h) 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 Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 and 10.02, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Except as set forth in Sections 8.01 and 10.02, each 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 of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent Holder upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, Trustee or the Trustee or Collateral Agent on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, 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 applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the Holders, the Trustee and Collateral Agent Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in respect of the Guaranteed Obligationssuch proceeding).
(hg) Each 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 itsuch Guarantor, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article 6 this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article 6Guarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(ih) Each Guarantor also agrees to pay any and all fees reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee, Trustee or the Collateral Agent or any Holder Holders in enforcing any rights under this Section 10.01Section.
(ji) Upon request of Neither the TrusteeIssuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, each Guarantor termination or discharge thereof and any such notation shall execute and deliver such further instruments and do such further acts as may not be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
(k) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice a condition to the Trustee from such direct or indirect parent validity of the Companyany Guarantee.
Appears in 2 contracts
Sources: Indenture (CommScope Holding Company, Inc.), Indenture (CommScope Holding Company, Inc.)
Guarantees. (a) Each Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder of the Notes, to the extent lawful, and to the Trustee and its successors and assigns (i) the Agents the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, whether for payment of principal of, premium, if any, or and 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 Notes held by the Holders, and all other monetary obligations Obligations of the Company Issuer under this Indenture and the Notes and all other Second Lien Obligations and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuer or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture, the Notes post-petition interest is allowed in such proceeding and the Security Documents obligations under Section 7.6) (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further 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 each such Guarantorit, and that each such Guarantor it shall remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Guarantor Obligations. The .
(c) Each Guarantor further agrees that its 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 Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (ia) the failure of any Holder, the Trustee or Collateral Agent Holder to assert any claim or demand or to enforce any right or remedy against the Company Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (iib) any extension or renewal of this Indenture, the Notes or any other agreementthereof; (iiic) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (ivd) the release of any security, if any, security held by any Holder, the Trustee or Collateral Agent Holder for the Guaranteed Guarantor Obligations or any Guarantorof them; (ve) the failure of any Holder, Trustee or Collateral Agent Holder to exercise any right or remedy against any other guarantor of the Guaranteed ObligationsGuarantor; or (vif) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
the Issuer; (cg) 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 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, Guarantor Obligations; or by (h) 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 Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 and 10.02, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Except as set forth in Sections 8.01 and 10.02, each 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 of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent Holder upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, Trustee or the Trustee or Collateral Agent on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, 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 applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the Holders, the Trustee and Collateral Agent Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in respect of the Guaranteed Obligationssuch proceeding).
(hg) Each 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 itsuch Guarantor, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article 6 this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article 6Guarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(ih) Each Guarantor also agrees to pay any and all fees reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee, the Collateral Agent Agents or any Holder the Holders in enforcing any rights under this Section 10.01Section.
(i) None of the Issuer or the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Upon request Each Guarantee of a Guarantor not organized under the laws of the TrusteeUnited States, each Guarantor any state or territory thereof or the District of Columbia shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper subject to carry out more effectively limitations in accordance with local law in the purpose jurisdiction of this Indenture.
(k) Any Guarantee given by any direct or indirect parent organization of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice applicable Guarantor, in each case to the Trustee from such direct or indirect parent of the Companyextent applicable.
Appears in 2 contracts
Sources: Indenture (Allison Transmission Holdings Inc), Indenture (Allison Transmission Holdings Inc)
Guarantees. (a) Each Guarantor hereby of AOL and Time Warner hereby, jointly and severally, unconditionally and irrevocably and unconditionally guarantees on a senior secured basis, as a primary obligor and not merely as a surety, to each Holder and to the Trustee Administrative Agent, for the ratable benefit of the Lenders and its successors their respective successors, indorsees, transferees and assigns assigns, the prompt and complete payment and performance by the Designated Borrowers when due (i) the full and punctual payment when due, whether at Stated Maturitythe stated maturity, by acceleration, by redemption acceleration or otherwise, of all obligations ) of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, 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 Notes 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 the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation toAOLTW hereby, demand of payment from jointly and protest severally, unconditionally and irrevocably guarantees to the Company of any Administrative Agent, for the ratable benefit of the Guaranteed Obligations Lenders and also waives notice of protest for nonpayment. Each Guarantor waives 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 Holdertheir respective successors, indorsees, transferees and assigns, the Trustee or Collateral Agent to assert any claim or demand or to enforce any right or remedy against prompt and complete payment and performance by AOLTWFI when due (whether at the Company or any other Person under this Indenturestated maturity, the Notes or any other agreement by acceleration 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 Obligations 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)AOLTWFI.
(c) Each Guarantor hereby waives any right of TBS and TWCI hereby, jointly and severally, unconditionally and irrevocably guarantees to which it may be entitled to have 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 hereunder divided among and liabilities under this Guarantee (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"Time Warner Obligations") including under Section 2(a) hereof.
(d) 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02, each Guarantor agrees that its This Guarantee 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 Designated Borrowers may be free from any Obligations. Except as set forth .
(e) Each Guarantor agrees that whenever, at any time, or from time to time, it shall make any payment to the Administrative Agent or any Lender on account of its liability hereunder, it will notify the Administrative Agent and such Lender in Sections 8.01 and 10.02writing that such payment is made under this Guarantee for such purpose.
(f) Anything herein or in any other Credit Document to the contrary notwithstanding, the maximum liability of each Guarantor further agrees that its Guarantee herein hereunder and under the other Credit Documents shall continue in no event exceed the amount which can be guaranteed by such Guarantor under applicable federal and state laws relating to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, insolvency of principal debtors (after giving effect to the right of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company or otherwisecontribution established in Section 3 hereof).
(g) In furtherance No payment or payments made by either of the foregoing and not in limitation 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 other right which action or proceeding or any Holdersetoff or appropriation or payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the Trustee or Collateral Agent has at law or in equity against liability of any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and hereunder who shall, upon receipt of written demand notwithstanding any such payment or payments (other than payments made by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent Guarantor in respect of the Guaranteed Obligations.
(h) Each Obligations or payments received or collected from such 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 it, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations), remain liable for the Obligations guaranteed herebyand, and (ii) in the event case of any declaration of acceleration TBS and TWCI, the Time Warner Obligations, up to the maximum liability of such Guaranteed Guarantor hereunder until the Obligations as provided are paid in Article 6, such Guaranteed Obligations (whether or not due full and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01Commitments are terminated.
(i) Each Guarantor also agrees to pay any and all fees and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 2 contracts
Sources: Credit Agreement (Aol Time Warner Inc), Credit Agreement (Aol Time Warner Inc)
Guarantees. (a) Each Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder and Holder, to the Trustee extent lawful, and its successors and assigns (i) the Trustee, the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, whether for payment of principal of, premium, if any, or and 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 Notes held by the Holders, and all other monetary obligations Obligations of the Company Issuer under this Indenture and the Notes and all other Second Lien Obligations and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuer or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture, the Notes post-petition interest is allowed in such proceeding and the Security Documents obligations under Section 7.6) (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further 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 each such Guarantorit, and that each such Guarantor it shall remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Guarantor Obligations. The .
(c) Each Guarantor further agrees that its 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 Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (ia) the failure of any Holder, the Trustee or Collateral Agent Holder to assert any claim or demand or to enforce any right or remedy against the Company Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (iib) any extension or renewal of this Indenture, the Notes or any other agreementthereof; (iiic) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (ivd) the release of any security, if any, security held by any Holder, the Trustee or Collateral Agent Holder for the Guaranteed Guarantor Obligations or any Guarantorof them; (ve) the failure of any Holder, Trustee or Collateral Agent Holder to exercise any right or remedy against any other guarantor of the Guaranteed ObligationsGuarantor; or (vif) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
the Issuer; (cg) 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 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, Guarantor Obligations; or by (h) 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 Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 and 10.02, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 or Article VIII. Except as set forth in Sections 8.01 and 10.02, each 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 of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent Holder upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, Trustee or the Trustee or Collateral Agent on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, 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 applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the Holders, the Trustee and Collateral Agent Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in respect of the Guaranteed Obligationssuch proceeding).
(hg) Each 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 itsuch Guarantor, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article 6 this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article 6Guarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(ih) Each Guarantor also agrees to pay any and all fees reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee, Trustee or the Collateral Agent or any Holder Holders in enforcing any rights under this Section 10.01Section.
(ji) Upon request of Neither the TrusteeIssuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, each Guarantor termination or discharge thereof and any such notation shall execute and deliver such further instruments and do such further acts as may not be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
(k) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice a condition to the Trustee from such direct or indirect parent validity of the Companyany Guarantee.
Appears in 1 contract
Guarantees. On the Issue Date, Holdings and Intelsat Bermuda will be the only Guarantors.
(a) Each Guarantor hereby jointly and severally, irrevocably and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor and not merely as a surety, to each Holder and to the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Company Issuer under this Indenture (including obligations to the Trustee and Collateral AgentTrustee) and the Notes, 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 additional interest in respect of (x) the Bankruptcy Code after any bankruptcy or insolvency petition under the Bankruptcy Code and (y) any other debtor relief laws) on the Notes held by the Holders, and all other monetary obligations of the Company Issuer 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 Issuer whether for fees, expenses, indemnification or otherwise under this Indenture, Indenture and the Notes and the Security Documents (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives 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, Holder or the Trustee or Collateral Agent to assert any claim or demand or to enforce any right or remedy against the Company 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, 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 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed Obligations.
(h) Each 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 it, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) Each Guarantor also agrees to pay any and all fees and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.;
Appears in 1 contract
Sources: Indenture (Intelsat LTD)
Guarantees. The Company will not, and will not permit any Subsidiary, other than Fingerhut Financial Services Corporation and its subsidiaries, to, create, incur, assume or permit to exist any Guarantee, except
(a) Each Guarantor hereby jointly and severally, irrevocably and unconditionally guarantees on a senior secured basis, as a primary obligor and not merely as a surety, to each Holder and to the Trustee and its successors and assigns Guaranty;
(b) the Guarantees of the Subsidiaries incurred (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations as guarantors of the Company Existing Notes under this Indenture (including obligations the Existing Guarantees and any Guarantee of the Subsidiaries that may be required to be incurred pursuant to the Trustee and Collateral Agent) and the Notes, 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 Notes held by the Holders, all other monetary obligations of the Company under this Indenture and the Notes and all other Second Lien Obligations Existing Purchase Agreements and (ii) the full and punctual performance within applicable grace periods of all other obligations as guarantors of the Company whether for fees, expenses, indemnification or otherwise under this Indenture, the Notes and the Security Documents (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives 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).Bank Credit Agreement;
(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. Each Guarantor hereby waives any right to which it may be entitled to have the assets Guarantees of Indebtedness of the Company first be used Subsidiaries permitted by Section 8.2 and depleted as payment Guarantees of Operating Leases of the Company’s or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid Subsidiaries not prohibited 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.Section 8.12;
(d) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee Guarantees 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, the Trustee or Collateral Agent to any security held for payment additional Indebtedness of the Guaranteed Obligations.Company permitted by clause (d) of Section 8.1, provided that the instrument representing any such Guarantee contains an acknowledgement of the existence of the Guaranty and an agreement on the part of the beneficiary of such Guarantee not to contest the validity of the Guaranty or the Notes;
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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 Guarantees by the failure MWD Subsidiaries of Indebtedness of M▇▇▇▇▇▇▇▇▇ W▇▇▇ Direct; provided that immediately after the creation, incurrence, assumption or existence of any Holder, such Guarantee and after giving effect thereto the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy aggregate amount of Indebtedness of M▇▇▇▇▇▇▇▇▇ W▇▇▇ Direct guaranteed by the outstanding Guarantees permitted under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
clause (e) and under clause (f) Except as set forth in Sections 8.01 and 10.02of 8.14, each Guarantor agrees that its Guarantee without duplication, shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent exceed an amount equal to the sum difference between $30,000,000 and the aggregate amount of all outstanding loans and advances and all capital contributions made by the MWD Subsidiaries to M▇▇▇▇▇▇▇▇▇ W▇▇▇ Direct;
(f) Guarantees by the Company of Indebtedness of M▇▇▇▇▇▇▇▇▇ W▇▇▇ Direct, provided that such Guarantees are permitted by clause (d) of 8.1 and that immediately after the creation, incurrence, assumption or existence of any such Guarantee and after giving effect thereto the aggregate amount of Indebtedness of M▇▇▇▇▇▇▇▇▇ W▇▇▇ Direct guaranteed by the outstanding Guarantees permitted under this clause (f) and under clause (e) of 8.14, without duplication, shall not exceed an amount equal to the difference between $30,000,000 and the aggregate amount of all outstanding loans and advances and all capital contributions made by the Company or any Subsidiary to M▇▇▇▇▇▇▇▇▇ W▇▇▇ Direct;
(g) (i) Guarantees by the unpaid principal amount Company or any Subsidiary of Indebtedness or other obligations of any of the Financial Services Companies, provided that such Guaranteed Obligations, Guarantees are permitted by clause (d) of Section 8.1 hereof and (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to Guarantees by any of the extent not prohibited by applicable law) and (iii) all Financial Services Companies of Indebtedness or other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent in respect any of the Guaranteed Obligations.Financial Services Companies;
(h) Each Guarantor agrees additional Guarantees by the Company of Indebtedness or other obligations, provided that it shall not be entitled to any right such Guarantees are permitted by clause (d) of subrogation in relation to 8.1 and that immediately after the Holders in respect creation, incurrence, assumption or existence of any Guaranteed Obligations guaranteed hereby until payment in full such additional Guarantee and after giving effect thereto the aggregate amount of all Guaranteed Obligations. Each Guarantor further agrees that, as between it, on Indebtedness and other obligations guaranteed by the one hand, and outstanding Guarantees of the Holders, the Trustee and Collateral Agent, on the other hand, Company permitted under this clause (h) does not exceed $5,000,000; and
(i) Notwithstanding anything in the maturity foregoing, no Guarantee of Indebtedness shall at any time be permitted to be made by FRI, any of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee hereinTV Shopping Companies, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect either of the Guaranteed Obligations guaranteed herebyMWD Subsidiaries, the Credit Card Bank or any Subsidiary that is a subsidiary of FRI, any of the TV Shopping Companies, either of the MWD Subsidiaries or the Credit Card Bank, other than (i) as permitted under clause (e) with respect to the MWD Subsidiaries and (ii) in Guarantees of Indebtedness of one or more of the event of any declaration of acceleration TV Shopping Companies by one of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) TV Shopping Companies."
SECTION 3.09. The following Section 8.18 shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) Each Guarantor also agrees to pay any and all fees and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice added to the Trustee from such direct or indirect parent of the Company.Purchase Agreement immediately following Section 8.17 thereof:
Appears in 1 contract
Sources: Fourth Amendment Agreement (Fingerhut Companies Inc)
Guarantees. (a) Each Guarantor hereby jointly Holdings, in consideration of the Purchaser's ---------- entering into this Agreement and severallypurchasing Notes, unconditionally and irrevocably and unconditionally guarantees on a senior secured basis, as a primary obligor and not merely as a surety, to each Holder and to the Trustee Purchaser and its successors each and assigns (i) every holder from time to time of any of the full Notes the due and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations sums which may become due or be stated in the Notes or in this Agreement to become due under the terms and provisions of the Company under Notes and this Indenture (including obligations to Agreement in respect of the Trustee principal of and Collateral Agent) and the Notes, whether for payment of principal of, premiumprepayment charge, if any, or and 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 Notes held by the Holders(including interest on any overdue principal, 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 the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives 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 securityprepayment charge, if any, held and, to the extent permitted by any Holderapplicable law, 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 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become dueoverdue interest), whether at stated maturity, by acceleration, by redemption notice of prepayment or otherwise, and all other sums which may become due from the Borrower or be stated to perform be or comply with become so due under the Notes or this Agreement. Holdings further guarantees to the Purchasers and each holder as aforesaid the due performance and observance by the Borrower of all covenants, agreements and conditions on the Borrower's part to be performed under this Agreement and any other Guaranteed Obligation, each Guarantor hereby promises document from time to and shall, upon receipt of written demand time delivered by the Trustee, forthwith pay, or cause Borrower pursuant to be paid, in cash, this Agreement. Holdings further guarantees to the HoldersPurchasers and each holder as aforesaid payment of all other amounts payable by the Borrower under this Agreement or the Notes, including costs, expenses (including fees and expenses of counsel) and taxes (such principal, prepayment charge, if any, interest and other obligations guaranteed as aforesaid being hereinafter collectively called the Trustee or Collateral Agent an amount equal "Obligations" and to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the ----------- extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed Obligations.
(h) Each 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 it, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) Each Guarantor also lawful agrees to pay any and all expenses (including fees and expenses (including reasonable attorneys’ fees and expensesof counsel) incurred by the Trustee, the Collateral Agent or each holder of any Holder Note in enforcing any rights under in connection with this Section 10.01Section.
(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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Guarantees. (a) Each Guarantor hereby jointly and severally, irrevocably and unconditionally guarantees on a senior secured an unsecured basis, as a primary obligor and not merely as a surety, to each Holder and to the Trustee and its their successors and assigns (i) the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by redemption acceleration or otherwise, of all obligations of the Company Issuers under this Indenture (including obligations to the Trustee and Collateral AgentTrustee) and the NotesSecurities, whether for payment of principal of, premium, if any, or interest (including any intereston, feesif any, 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 Securities and (y) any other debtor relief laws) on the Notes held by the Holders, all other monetary obligations of the Company Issuers under this Indenture and the Notes and all other Second Lien Obligations Securities and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuers whether for fees, expenses, indemnification or otherwise under this Indenture, the Notes Indenture and the Security Documents Securities, on the terms set forth in this Indenture by executing this Indenture (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuers of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives 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 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 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 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, Holder or the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(ed) Except as expressly set forth in Sections 8.01 8.01(b), 10.02 and 10.0210.06, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 and 10.02Subject to Section 10.02 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, each 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, Holder or the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company Issuers or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, Holder or the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company an Issuer to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company Issuers to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed ObligationsTrustee.
(hg) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders Trustee in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between it, on the one hand, and the Holders, the Trustee and Collateral AgentTrustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(ih) Each Guarantor also agrees to pay any and all fees costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent Trustee or any Holder in enforcing any rights under this Section 10.01.
(j) Upon request of the Trustee, each . 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.
(k) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Sources: Indenture (PQ Group Holdings Inc.)
Guarantees. (a) Each Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder and Holder, to the Trustee extent lawful, and its successors and assigns (i) the Trustee, the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, whether for payment of principal of, premium, if any, or and 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 Notes held by the Holders, and all other monetary obligations Obligations of the Company Issuers under this Indenture and the Notes and all other Second Lien Obligations and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuers or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture, the Notes post-petition interest is allowed in such proceeding and the Security Documents obligations under Section 7.6) (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further 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 each such Guarantorit, and that each such Guarantor it shall remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuers of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Guarantor Obligations. The .
(c) Each Guarantor further agrees that its 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 Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (ia) the failure of any Holder, the Trustee or Collateral Agent Holder to assert any claim or demand or to enforce any right or remedy against the Company Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (iib) any extension or renewal of this Indenture, the Notes or any other agreementthereof; (iiic) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (ivd) the release of any security, if any, security held by any Holder, the Trustee or Collateral Agent Holder for the Guaranteed Guarantor Obligations or any Guarantorof them; (ve) the failure of any Holder, Trustee or Collateral Agent Holder to exercise any right or remedy against any other guarantor of the Guaranteed ObligationsGuarantor; or (vif) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
the Issuers; (cg) 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 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, Guarantor Obligations; or by (h) 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 Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 and 10.02, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Except as set forth in Sections 8.01 and 10.02, each 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 of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent Holder upon the bankruptcy or reorganization of the Company Issuers or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuers to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the HoldersTrustee, the Agents or the Trustee or Collateral Agent on behalf of the Holders and such Agents an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, 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 applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the Holders, the Trustee and Collateral Agent Issuers or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in respect of the Guaranteed Obligationssuch proceeding).
(hg) Each 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 itsuch Guarantor, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article 6 this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article 6Guarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(ih) Each Guarantor also agrees to pay any and all fees reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee, Trustee or the Collateral Agent or any Holder Holders in enforcing any rights under this Section 10.01Section.
(ji) Upon request of Neither the TrusteeIssuers nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, each Guarantor termination or discharge thereof and any such notation shall execute and deliver such further instruments and do such further acts as may not be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
(k) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice a condition to the Trustee from such direct or indirect parent validity of the Companyany Guarantee.
Appears in 1 contract
Guarantees. (a) Each Subject to this Article X, Article XI and Section 12.19, each of the Company, eircom, Holdings and each Additional Note Guarantor hereby jointly fully, unconditionally and severally, irrevocably and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor and not merely as a surety, to each Holder of the Notes and to the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, whether for payment of principal of, premium, if any, or interest (including any interest, feesand Additional Amounts, 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) if any, on the Notes 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 payment obligations of the Company whether for fees, expenses, indemnification or otherwise eircom Funding under this Indenture, the Notes and the Security Documents Indenture (all of the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Senior Subordinated Obligations”). Each of the Company, eircom, Holdings and each Additional Note Guarantor further agrees (to the extent permitted by law) that the Guaranteed Senior Subordinated Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that each such Guarantor shall it will remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Senior Subordinated Obligation. The guarantee of the Company given hereby is referred to herein as the “Senior Subordinated Valentia Guarantee,” the guarantee of eircom given hereby is referred to herein as the “Senior Subordinated eircom Guarantee” (which, together with the Senior Subordinated Valentia Guarantee and each Additional Note Guarantee, are referred to herein as the “Note Guarantees”). The guarantee of Holdings given hereby is referred to herein as the “Subordinated Holdings Guarantee.
(b) ” Each of the Company, eircom, Holdings and any Additional Note Guarantor waives (to the extent permitted by law) presentation to, demand of payment from and protest to the Company eircom Funding of any of the Guaranteed Senior Subordinated Obligations and also waives (to the extent permitted by law) notice of protest for nonpayment. Each of the Company, eircom, Holdings and any Additional Note Guarantor waives (to the extent permitted by law) notice of any default under the Notes or the Guaranteed Senior Subordinated Obligations. The obligations of each of the Company, eircom, Holdings and any Additional Note Guarantor hereunder shall not (to the extent permitted by law) be affected by (ia) the failure of any Holder, the Trustee or Collateral Agent Holder to assert any claim or demand or to enforce any right or remedy against the Company eircom Funding or any other Person person under this Indenture, the Notes or any other agreement or otherwise; (iib) any extension or renewal of this Indenture, the Notes or any other agreementthereof; (iiic) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (ivd) the release of any security, if any, security held by any Holder, Holder or the Trustee or Collateral Agent for the Guaranteed Senior Subordinated 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 Obligationsthem; or (vie) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
(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 claimedeircom Funding. 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 , eircom, Holdings and 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 Additional Note Guarantor further agrees that its each Note Guarantee herein (or in the case of Holdings, the Subordinated Holdings Guarantee herein) constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives (to the extent permitted by law) any right to require that any resort be had by any Holder, the Trustee or Collateral Agent Holder to any security held for payment of the Guaranteed Senior Subordinated Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, the . The obligations of each of the Company, eircom, Holdings and any Additional Note Guarantor hereunder shall (to the extent permitted by law) shall, subject to this Article X, Article XI and Section 12.19, not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Senior Subordinated Obligations in full), 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 Senior Subordinated Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each of the Company, eircom, Holdings and any Additional Note Guarantor herein shall (to the extent permitted by law) shall, subject to this Article X, Article XI and Section 12.19, not be discharged or impaired or otherwise affected by the failure of any Holder, the Trustee or Collateral Agent Holder to assert any claim or demand or to enforce any remedy under this Indenture, the Notes Note or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligationsSenior Subordinated Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any of the Company, eircom, Holdings or any Additional Note Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02. Subject to Section 10.5, each Guarantor agrees that its Guarantee shall remain in full force of the Company, eircom, Holdings and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, each any Additional Note Guarantor further agrees that its each Note Guarantee herein (or, in the case of Holdings, the Subordinated Holdings 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 or interest interest, or Additional Amounts, if any, on any Guaranteed Obligation of the Senior Subordinated Obligations is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent Holder upon the bankruptcy or reorganization of the Company eircom Funding or otherwise.
(g) In . Subject to the provisions of Section 10.3 hereof, in furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent Holder has at law or in equity against any of the Company, eircom, Holdings and any Additional Note Guarantor by virtue hereof, upon the failure of the Company eircom Funding to pay any of the principal of or interest on any Guaranteed Obligation Senior Subordinated Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with each of the Company, eircom, Holdings and any other Guaranteed Obligation, each Additional Note Guarantor hereby promises to and shallwill, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, Trustee for and on behalf of itself and the Trustee or Collateral Agent Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued Senior Subordinated Obligations then due and unpaid interest on such Guaranteed Obligations (but only owing. Payments made under this guarantee shall be made to the extent not prohibited by applicable law) and (iii) all other monetary obligations Trustee on behalf of the Holders. The Company to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed Obligations.
(h) Each 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 it, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, but subject always to Section 11.2 hereof, (ix) the maturity of the Guaranteed Senior Subordinated Obligations guaranteed hereby may be accelerated as provided in Article 6 this Indenture for the purposes of any the Note Guarantees herein (or, in the case of Holdings, the Subordinated Holdings Guarantee herein), notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Senior Subordinated Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article 6Senior Subordinated Obligations, such Guaranteed Senior Subordinated Obligations (whether or not due and payable) shall forthwith become due and payable by such each of the Company, eircom, Holdings and any Additional Note Guarantor for the purposes of this Section 10.01.
Senior Subordinated Guarantee (i) or, in the case of Holdings, this Subordinated Holdings Guarantee). Each of the Company, eircom, Holdings and any Additional Note Guarantor also agrees to pay any and all fees reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee, Trustee or the Collateral Agent or any Holder Holders in enforcing any rights under this Section 10.01Section.
(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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Sources: Senior Subordinated Indenture (Valentia Telecommunications)
Guarantees. (a) Each Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder and of the Notes, to the extent lawful, and the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, whether for payment of principal of, premium, if any, or and 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 Notes held by the Holders, and all other monetary obligations Obligations of the Company Issuers under this Indenture and the Notes and all other Second Lien Obligations and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuers or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture, the Notes post-petition interest is allowed in such proceeding and the Security Documents obligations under Section 7.6) (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further 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 each such Guarantorit, and that each such Guarantor it shall remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuers of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Guarantor Obligations. The .
(c) Each Guarantor further agrees that its 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 Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (ia) the failure of any Holder, the Trustee or Collateral Agent Holder to assert any claim or demand or to enforce any right or remedy against the Company Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (iib) any extension or renewal of this Indenture, the Notes or any other agreementthereof; (iiic) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (ivd) the release of any security, if any, security held by any Holder, the Trustee or Collateral Agent Holder for the Guaranteed Guarantor Obligations or any Guarantorof them; (ve) the failure of any Holder, Trustee or Collateral Agent Holder to exercise any right or remedy against any other guarantor of the Guaranteed ObligationsGuarantor; or (vif) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
the Issuers; (cg) 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 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, Guarantor Obligations; or by (h) 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 Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 and 10.02, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Except as set forth in Sections 8.01 and 10.02, each 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 of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent Holder upon the bankruptcy or reorganization of the Company Issuers or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuers to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, Trustee or the Trustee or Collateral Agent on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, 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 applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the Holders, the Trustee and Collateral Agent Issuers or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in respect of the Guaranteed Obligationssuch proceeding).
(hg) Each 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 itsuch Guarantor, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article 6 this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article 6Guarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(ih) Each Guarantor also agrees to pay any and all fees reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee, Trustee or the Collateral Agent or any Holder Holders in enforcing any rights under this Section 10.01Section.
(i) Neither the Issuers nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Upon request Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the Trusteeapplicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, each Guarantor shall execute such limitations and deliver 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 further instruments limitations and do such further acts defenses as may be reasonably necessary or proper to carry out more effectively are described in the purpose Offering Circular under the caption “Limitations on Validity and Enforceability of this Indenturethe Guarantees and the Security Interests” and (iii) other considerations under applicable law.
(k) Any Guarantee given by If and to the extent that a Guarantor incorporated in Switzerland (a “Swiss Guarantor”) is liable under the Guarantees or any other provision of the Notes or this Indenture, for obligations other than obligations of one of its wholly owned subsidiaries (being obligations of its direct or indirect parent companies (for purposes of this clause (k), an “up-stream guarantee”) or sister companies (for purposes of this clause (k), a “cross-stream guarantee”)) (for purposes of this clause (k), the “Restricted Obligations”), and that the making of a payment in fulfilling Restricted Obligations would under Swiss corporate law (inter alia, prohibiting capital repayments or restricting distributions) at the time payment is due, not be permitted, then such obligations and payment amount shall from time to time be limited to the amount permitted to be paid under Swiss corporate law; provided that such limited amount shall at no time be less than such Swiss Guarantor’s distributable reserves (presently being the balance sheet profits and any reserves available for distribution, including, without limitation, Kapitaleinlagereserven) at the time or times payment is requested from the relevant Swiss Guarantor, and further provided that such limitation (as may apply from time to time or not) shall not (generally or definitively) release such Swiss Guarantor from payment obligations hereunder in excess thereof, but merely postpone the payment date therefore until such times as payment is again permitted notwithstanding such limitation. Any and all indemnities and guarantees contained in the Notes or this Indenture shall be construed in a manner consistent with the provisos herein contained. In case a Swiss Guarantor who must make a payment in respect of Restricted Obligations under its Guarantee is obliged to withhold Swiss Withholding Tax (Verrechnungssteuer) in respect of such payment, such Swiss Guarantor shall:
(i) procure that such payments can be made without deduction of Swiss Withholding Tax, or with deduction of Swiss Withholding Tax at a reduced rate, by discharging the liability to such tax by notification pursuant to applicable law (including double tax treaties) rather than payment of the Company tax;
(ii) if the notification procedure pursuant to sub-paragraph (i) above does not apply, deduct Swiss Withholding Tax at the rate of 35% (or such other rate as in force from time to time), or if the notification procedure pursuant to sub-paragraph (i) above applies for a part of the Swiss Withholding Tax only, deduct Swiss Withholding Tax at the reduced rate resulting after the discharge of part of such tax by notification under applicable law, from any payment made by it in respect of Restricted Obligations and promptly pay any such taxes to the Swiss Federal Tax Administration (Eidgenössische Steuerverwaltung);
(iii) notify the Trustee in writing that such notification, or as the case may be released be, deduction has been made and discharged provide the Trustee with evidence that such a notification of the Swiss Federal Tax Administration has been made or, as the case may be, such taxes deducted have been paid to the Swiss Federal Tax Administration;
(iv) in the case of a deduction of Swiss Withholding Tax:
(1) use its best efforts to ensure that any Person other than a Secured Party which is entitled to a full or partial refund of the Swiss Withholding Tax deducted from all obligations such payment in respect of Restricted Obligations, will, as soon as possible after such deduction (A) request a refund of the Swiss Withholding Tax under this Article 10 at any time upon written notice applicable law (including tax treaties) and (B) pay to the Trustee upon receipt any amounts so refunded; and
(2) if a Secured Party is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such direct payment, shall provide the Trustee (on its behalf or indirect parent on behalf of any Secured Party) those documents that are required by law and applicable tax treaties to be provided by the payer of such tax, for each relevant Secured Party, to prepare a claim for refund of Swiss Withholding Tax. If a Swiss Guarantor is obliged to withhold Swiss Withholding Tax in accordance with the previous paragraph, the Trustee shall be entitled to further enforce the Guarantees or any other indemnity granted by the respective Swiss Guarantor under this Indenture and apply proceeds therefrom against the Restricted Obligations up to an amount which is equal to that amount which would have been obtained if no withholding of Swiss Withholding Tax were required, whereby such further enforcements shall always be limited to the maximum amount of the Company.freely distributable reserves of the respective Swiss Guarantor as set out above. If and to the extent a demand for payment against a Swiss Guarantor is made by the Trustee and if and to the extent required under Swiss mandatory law (with regards to restricting distributions) applicable at the relevant time, in order to allow the Trustee (and the Secured Parties) to obtain a maximum benefit under the Guarantees, the relevant Swiss Guarantor shall, and any parent company of the Swiss Guarantor being a party to this Indenture shall procure that the Swiss Guarantor will, promptly implement all such measures and/or promptly procure the fulfillment of all prerequisites allowing it to promptly make the (requested) payment(s) hereunder from time to time, including the following:
Appears in 1 contract
Guarantees. (a) Each Guarantor Subject to the provisions of this Article 15, the Issuer and the Subsidiary Guarantors hereby irrevocably and unconditionally guarantee, jointly and severally, irrevocably and unconditionally guarantees on a senior secured basis, as a primary obligor and not merely as a surety, basis to each Holder holder and to the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral AgentTrustee) and the Notes, whether for payment of principal of, premium, if any, of 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 Notes held by Notes, delivery of the Holders, Settlement Amount and 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, Indenture and the Notes and the Security Documents (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Obligations”"GUARANTEED OBLIGATIONS"). Each Guarantor Subject to Section 15.02, the Issuer and the Subsidiary Guarantors further agrees agree that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantoreither the Issuer or the Subsidiary Guarantors, and that each such Guarantor the Issuer and the Subsidiary Guarantors shall remain bound under this Article 10 15 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives To the extent permitted by law, the Issuer and the Subsidiary Guarantors waive presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives 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 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed Obligations.
(h) Each 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 it, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) Each Guarantor also agrees to pay any and all fees and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.Guaranteed
Appears in 1 contract
Sources: Indenture (CSK Auto Corp)
Guarantees. (a) Each Guarantor hereby jointly and severally, irrevocably and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor and not merely as a suretysurety on a senior basis, to each Holder and to the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture Issuer (including obligations to the Trustee and the Notes Collateral AgentTrustee) under this Indenture and the Notes, 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 Notes held by the Holders, and all other monetary obligations of the Company Issuer under this Indenture Indenture, the Notes, the Security Documents and the Notes and all other Second Lien Obligations Intercreditor Agreement and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuer whether for fees, expenses, indemnification or otherwise under this Indenture, the Notes and Notes, the Security Documents and the Intercreditor Agreement (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. The Guaranteed Obligations of a Guarantor will 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 Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives 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 Agent 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 Notes, any Security Document, or any other agreement or otherwise; (ii) any extension or renewal of this Indenture, the Notes 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 Notes, any Security Document or any other agreement; (iv) the release of any security, if any, security held by any Holder, the Trustee or the Notes Collateral Agent Trustee for the Guaranteed Obligations or any Guarantor; (v) the failure of any Holder, the Trustee or the Notes Collateral Agent 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 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 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 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, the Trustee or the Notes Collateral Agent Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 8.01, 10.02 and 10.0210.06, 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, the Trustee or the Notes Collateral Agent Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes Notes, any Security Document or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(f) Except as expressly set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as expressly set forth in Sections 8.01 and 10.02, 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, the Trustee or the Notes Collateral Agent Trustee upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or the Notes Collateral Agent Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, 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 Agent Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company Issuer then due to the Holders, the Trustee and the Notes Collateral Agent Trustee in respect of the Guaranteed Obligations.
(h) Each 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 it, on the one hand, and the Holders, the Trustee and the Notes Collateral AgentTrustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) Each Guarantor also agrees to pay any and all fees costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, or the Notes Collateral Agent Trustee, or any Holder in enforcing any rights under this Section 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) Any 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 given by any direct or indirect parent 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 Company may 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) 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 obligations guaranteed. “Fair Share Contribution Amount” means, with respect to a Contributing Guarantor as of any date of determination, the maximum aggregate amount of the obligations of such Contributing Guarantor under its Guarantee that would not render its obligations hereunder or thereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of the Bankruptcy Code or any comparable 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, any assets or liabilities of such Contributing Guarantor arising by virtue of any rights to subrogation, reimbursement or indemnification or any rights to or obligations of contribution hereunder shall not be released considered as assets or liabilities of such Contributing Guarantor. “Aggregate Payments” means, with respect to a Contributing Guarantor as of any date of determination, an amount equal to (1) the aggregate amount of all payments and discharged 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 all 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 contribution agreement set forth in this Section 10.01(k). For the avoidance of doubt, nothing in this Section 10.01(k) shall limit or impair, by implication or otherwise, each Guarantor’s obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Companyits Guarantee.
Appears in 1 contract
Guarantees. (a) Each Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder and Holder, to the Trustee extent lawful, and its successors and assigns (i) the Trustee, the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, whether for payment of principal of, premium, if any, or and 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 Notes held by the Holders, and all other monetary obligations Obligations of the Company under this Indenture and the Notes and all other Second Lien Obligations and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture, the Notes post-petition interest is allowed in such proceeding and the Security Documents obligations under Section 7.6) (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further 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 each such Guarantorit, and that each such Guarantor it shall remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Guarantor Obligations. The .
(c) Each Guarantor further agrees that its 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 Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (ia) the failure of any Holder, the Trustee or Collateral Agent Holder 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; (iib) any extension or renewal of this Indenture, the Notes or any other agreementthereof; (iiic) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (ivd) the release of any security, if any, security held by any Holder, the Trustee or Collateral Agent Holder for the Guaranteed Guarantor Obligations or any Guarantorof them; (ve) the failure of any Holder, Trustee or Collateral Agent Holder to exercise any right or remedy against any other guarantor of the Guaranteed ObligationsGuarantor; or (vif) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
(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. 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.
; (dg) 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, Guarantor Obligations; or by (h) 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 Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 and 10.02, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2, Article VIII or Section 9.1(a)(vi)(A). Except as set forth in Sections 8.01 and 10.02, each 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 of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent Holder upon the bankruptcy or reorganization of the Company or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, Trustee or the Trustee or Collateral Agent on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, 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 applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company to the Holders, the Trustee and Collateral Agent or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in respect of the Guaranteed Obligationssuch proceeding).
(hg) Each 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 itsuch Guarantor, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article 6 this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article 6Guarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(ih) Each Guarantor also agrees to pay any and all fees reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee, Trustee or the Collateral Agent or any Holder Holders in enforcing any rights under this Section 10.01Section.
(ji) 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) Any Guarantee given by any direct or indirect parent of Neither the Company may nor the Guarantors shall be released required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and discharged from all obligations under this Article 10 at any time upon written notice such notation shall not be a condition to the Trustee from such direct or indirect parent validity of the Companyany Guarantee.
Appears in 1 contract
Sources: Indenture (Ii-Vi Inc)
Guarantees. (a) Each Guarantor hereby jointly Holdings, in consideration of the Purchaser’s entering into this Agreement and severallypurchasing Notes, unconditionally and irrevocably and unconditionally guarantees on a senior secured basis, as a primary obligor and not merely as a surety, to each Holder and to the Trustee Purchaser and its successors each and assigns (i) every holder from time to time of any of the full Notes the due and punctual payment when dueof all sums which may become due or be stated in the Notes or in this Agreement to become due under the terms and provisions of the Notes and this Agreement in respect of the principal of and prepayment charge, if any, and interest on the Notes (including interest on any overdue principal, prepayment charge, if any, and, to the extent permitted by applicable law, on any overdue interest), whether at Stated Maturitystated maturity, by acceleration, by redemption notice of prepayment or otherwise, and all other sums which may become due from the Borrower or be stated to be or become so due under the Notes or this Agreement. Holdings further guarantees to the Purchasers and each holder as aforesaid the due performance and observance by the Borrower of all obligations of covenants, agreements and conditions on the Company Borrower’s part to be performed under this Indenture (including obligations Agreement and any other document from time to time delivered by the Borrower pursuant to this Agreement. Holdings further guarantees to the Trustee Purchasers and Collateral Agent) and each holder as aforesaid payment of all other amounts payable by the Borrower under this Agreement or the Notes, whether for payment including costs, expenses (including fees and expenses of principal ofcounsel) and taxes (such principal, premiumprepayment charge, 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 Notes 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 the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents guaranteed as aforesaid being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, ” and that each such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives 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 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed Obligations.
(h) Each 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 it, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) Each Guarantor also lawful agrees to pay any and all expenses (including fees and expenses (including reasonable attorneys’ fees and expensesof counsel) incurred by the Trustee, the Collateral Agent or each holder of any Holder Note in enforcing any rights under in connection with this Section 10.01Section.
(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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Guarantees. (a) Each Guarantor 14.1 In consideration of the Purchaser entering into this Agreement the Eltrax Guarantors hereby jointly and severally, irrevocably severally guarantee the due and unconditionally guarantees on a senior secured basis, as a primary obligor full performance by the Vendor of its duties obligations and not merely as a surety, to each Holder undertakings under this Agreement and hereby undertake to the Trustee and its successors and assigns (i) Purchaser that if the full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption Vendor shall fail in any respect to fulfil or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, 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 Notes 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 the foregoing, shall be in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company breach of any of its duties obligations warranties representations covenants or undertakings the Guaranteed Obligations Purchaser shall be at liberty to act and also waives notice each of protest for nonpayment. Each Guarantor waives notice the Eltrax Guarantors shall be liable as if they were the party principally bound thereby
14.2 In consideration as aforesaid the Eltrax Guarantors hereby covenant with the Purchaser that they 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 under on the Notes part of the Vendor in making the payments and in performing and observing the agreements and conditions on its part herein contained
14.3 The Eltrax Guarantors hereby agree that any duty obligation covenant warranty agreement or undertaking expressed in this Agreement or in the Guaranteed Obligations. 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 Guarantors and the Vendor jointly and severally
14.4 The obligations of each Guarantor hereunder guarantees, covenants and agreements contained in this clause 14 shall be a continuing security and shall not be affected by (i) the failure of any Holder, the Trustee time 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 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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 indulgence granted by the failure Purchaser to the Vendor
14.5 Each reference herein to the Eltrax Guarantors shall be deemed to include their respective successors all of any Holder, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee whom shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand bound by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed Obligations.
(h) Each 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 it, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) Each Guarantor also agrees to pay any and all fees and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.provision hereof
Appears in 1 contract
Sources: Asset Sale and Purchase Agreement (Aremissoft Corp /De/)
Guarantees. (a) Each Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder and of the Notes, to the extent lawful, and the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, whether for payment of principal of, premium, if any, or and 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 Notes held by the Holders, and all other monetary obligations Obligations of the Company Issuer under this Indenture and the Notes and all other Second Lien Obligations and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuer or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture, the Notes post-petition interest is allowed in such proceeding and the Security Documents obligations under Section 7.6) (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further 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 each such Guarantorit, and that each such Guarantor it shall remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Guarantor 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 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 Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder, the Trustee or Collateral Agent Holder to any security held for payment of the Guaranteed Guarantor Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed Obligations.
(h) Each 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 it, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) Each Guarantor also agrees to pay any and all fees and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Sources: Supplemental Indenture (Axalta Coating Systems Ltd.)
Guarantees. (a) Each Guarantor hereby that is a party hereto or that executes and delivers a supplemental indenture pursuant to this Indenture shall, upon execution and delivery of such supplemental indenture, fully, unconditionally and irrevocably guarantee, jointly and severally, irrevocably and unconditionally guarantees on a senior secured basis, as a primary obligor and not merely as a surety, to each Holder of the Notes and to the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of all obligations the principal of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, whether for payment of principal of, premium, if any, or interest (including any ) and interest, feesif any, 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 Notes held by the Holders, and all other monetary obligations of the Company Issuer under this Indenture and the Notes and all other Second Lien Obligations and (iithe “Note Obligations”) to 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 Trustee and the Security Documents (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents being hereinafter collectively called the “Guaranteed Obligations”)Holders. Each Guarantor further agrees (to the extent permitted by law) that the Guaranteed Note Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that each such Guarantor it shall remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Note Obligation.
(b) Each Guarantor of the Guarantors waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Note Obligations and also waives notice of protest for nonpayment. Each Guarantor of the Guarantors waives notice of any default Default under the Notes or the Guaranteed Note Obligations. The obligations of each Guarantor of the Guarantors hereunder shall not be affected by (i1) the failure of any Holder, the Trustee or Collateral Agent Holder to assert any claim or demand or to enforce any right or remedy against the Company Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; , (ii2) any extension or renewal of this Indentureany thereof, the Notes or any other agreement; (iii3) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; , (iv4) the release of any security, if any, security held by any Holder, Holder or the Trustee or Collateral Agent for the Guaranteed Note 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; them or (vi5) any change in the ownership of such Guarantor, except as provided in Section 10.02(b)the Issuer.
(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. 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 Guarantors further agrees that its Guarantee herein constitutes a guarantee of payment, performance and compliance payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder, the Trustee or Collateral Agent Holder to any security held for payment of the Guaranteed Note Obligations.
(ed) Except as expressly set forth in Sections 8.01 and 10.02, the The obligations of each Guarantor of the Guarantors hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Note Obligations in full), 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 Note Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor of the Guarantors herein shall not be discharged or impaired or otherwise affected by the failure of any Holder, the Trustee or Collateral Agent Holder to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligationsNote Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor each of the Guarantors or would otherwise operate as a discharge of any Guarantor the Guarantors as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full Each of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, each Guarantor Guarantors 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 of, premium, if any, or interest interest, if any, on any Guaranteed Obligation of the Note Obligations is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent Holder upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent Holder has at law or in equity against any Guarantor of the Guarantors by virtue hereof, upon the failure of the Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Note Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor of the Guarantors hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Note Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Note Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed Obligations).
(hg) Each 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 Guarantors further agrees that, as between ititself, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (ix) the maturity of the Guaranteed Note Obligations guaranteed hereby may be accelerated as provided in Article 6 this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Note Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article 6Note Obligations, such Guaranteed Note Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01Guarantee.
(ih) Each Guarantor of the Guarantors also agrees to pay any and all fees reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, Trustee or the Collateral Agent or any Holder Holders in enforcing any rights under this Section 10.0110.2.
(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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Sources: Indenture (Hess Midstream LP)
Guarantees. (a) Each Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, irrevocably and unconditionally guarantees on a senior secured basis, as a primary obligor and not merely as a surety, to each Holder and to the Trustee Purchaser and its successors and assigns (ia) the full and punctual payment of principal of and interest on the Notes when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, 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 Notes held by the Holders, all other monetary obligations of the Company under this Indenture Agreement and the Notes and all other Second Lien Obligations and (iib) 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 IndentureAgreement, the Notes and the Security Documents (all the foregoing, in each case strictly in accordance with the terms of this IndentureDocuments, the Intercreditor Agreement and the Security Documents Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, Guarantor and that each such Guarantor shall remain bound under this Article 10 9 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) . Each Guarantor waives presentation to, demand of of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (i1) the failure of any Holder, the Trustee or Collateral Agent Purchaser to assert any claim or demand or to enforce any right or remedy against the Company or any other Person (including any Guarantor) under this IndentureAgreement, the Notes Notes, the Security Documents, the Intercreditor Agreement or any other agreement or otherwise; (ii2) any extension or renewal of this Indenture, the Notes or any other agreementthereof; (iii3) any rescission, waiver, amendment or modification of any of the terms or provisions of this IndentureAgreement, the Notes Notes, the Security Documents, the Intercreditor Agreement or any other agreement; (iv4) the release of any security, if any, security held by any Holder, the Trustee Purchaser or the Note Collateral Agent for the Guaranteed Obligations or any Guarantorof them; (v5) the failure of any Holder, Trustee or Collateral Agent the Purchaser to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (vi6) except as set forth in Section 9.06, any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
(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. 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 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, the Trustee Purchaser or the Note Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) . Except as expressly set forth in Sections 8.01 9.02 and 10.029.06, 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, the Trustee or Collateral Agent Purchaser to assert any claim or demand or to enforce any remedy under this IndentureAgreement, the Notes Notes, the Security Documents, the Intercreditor Agreement or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any such Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, each 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, Holder or the Trustee or Collateral Agent Purchaser upon the bankruptcy or reorganization of the Company or otherwise.
(g) . In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent Purchaser has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the TrusteePurchaser, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent Purchaser an amount equal to the sum of (iA) the unpaid principal amount of such Guaranteed Obligations, (iiB) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iiiC) all other monetary obligations Guaranteed Obligations of the Company to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed Obligations.
(h) Each 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 ObligationsPurchaser. Each Guarantor further agrees that, as between it, on the one hand, and the Holders, the Trustee and Collateral AgentPurchaser, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any such Guarantor’s Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) Section. Each Guarantor also agrees to pay any and all fees costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee, the Collateral Agent or any Holder Purchaser in enforcing any rights under this Section 10.01Section.
(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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Guarantees. (a) Each Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees guarantees, on a senior secured basis, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder and Holder, to the Trustee extent lawful, and its successors and assigns (i) the Trustee, the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, whether for payment of principal ofprincipal, premium, if any, or and 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 Notes held by the Holders, and all other monetary obligations Obligations of the Company Issuer under this Indenture and the Notes and all other Second Lien Obligations and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuer or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture, the Notes post-petition interest is allowed in such proceeding and the Security Documents obligations under Section 7.6) (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further 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 each such Guarantorit, and that each such Guarantor it shall remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Guarantor Obligations. The .
(c) Each Guarantor further agrees that its 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 Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (ia) the failure of any Holder, the Trustee or Collateral Agent Holder to assert any claim or demand or to enforce any right or remedy against the Company Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (iib) any extension or renewal of this Indenture, the Notes or any other agreementthereof; (iiic) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (ivd) the release of any security, if any, security held by any Holder, the Trustee or Collateral Agent Holder for the Guaranteed Guarantor Obligations or any Guarantorof them; (ve) the failure of any Holder, Trustee or Collateral Agent Holder to exercise any right or remedy against any other guarantor of the Guaranteed ObligationsGuarantor; or (vif) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
the Issuer; (cg) 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 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, Guarantor Obligations; or by (h) 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 Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 and 10.02, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Except as set forth in Sections 8.01 and 10.02, each 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 principal, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent Holder upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, Trustee or the Trustee or Collateral Agent on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, 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 applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the Holders, the Trustee and Collateral Agent Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in respect of the Guaranteed Obligationssuch proceeding).
(hg) Each 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 itsuch Guarantor, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article 6 this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article 6Guarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(ih) Each Guarantor also agrees to pay any and all fees reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee, Trustee or the Collateral Agent or any Holder Holders in enforcing any rights under this Section 10.01Section.
(ji) Upon request of Neither the TrusteeIssuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, each Guarantor termination or discharge thereof and any such notation shall execute and deliver such further instruments and do such further acts as may not be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
(k) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice a condition to the Trustee from such direct or indirect parent validity of the Companyany Guarantee.
Appears in 1 contract
Guarantees. (a) Each Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, unconditionally and irrevocably and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder and of the Notes, to the extent lawful, and the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, whether for payment of principal of, premium, if any, or and 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 Notes held by the Holders, and all other monetary obligations of the Company Issuer under this Indenture and the Notes and all other Second Lien Obligations and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuer or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture, the Notes post-petition interest is allowed in such proceeding and the Security Documents obligations under Section 7.6) (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further 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 each such Guarantorit, and that each such Guarantor it shall remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Guarantor Obligations. The .
(c) Each Guarantor further agrees that its 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 Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (ia) the failure of any Holder, the Trustee or Collateral Agent Holder to assert any claim or demand or to enforce any right or remedy against the Company Issuer or any other Person person under this Indenture, the Notes or any other agreement or otherwise; (iib) any extension or renewal of this Indenture, the Notes or any other agreementthereof; (iiic) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (ivd) the release of any security, if any, security held by any Holder, the Trustee or Collateral Agent Holder for the Guaranteed Guarantor Obligations or any Guarantorof them; (ve) the failure of any Holder, Trustee or Collateral Agent Holder to exercise any right or remedy against any other guarantor of the Guaranteed ObligationsGuarantor; or (vif) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
the Issuer; (cg) 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 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, Guarantor Obligations; or by (h) 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 Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 and 10.02, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Except as set forth in Sections 8.01 and 10.02, each 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 of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent Holder upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, Trustee or the Trustee or Collateral Agent on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, 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 applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the Holders, the Trustee and Collateral Agent Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in respect of the Guaranteed Obligationssuch proceeding).
(hg) Each 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 itsuch Guarantor, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article 6 this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article 6Guarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(ih) Each Guarantor also agrees to pay any and all fees reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee, Trustee or the Collateral Agent or any Holder Holders in enforcing any rights under this Section 10.01Section.
(ji) Upon request of Neither the TrusteeIssuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, each Guarantor termination or discharge thereof and any such notation shall execute and deliver such further instruments and do such further acts as may not be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
(k) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice a condition to the Trustee from such direct or indirect parent validity of the Companyany Guarantee.
Appears in 1 contract
Sources: Indenture (Solgar)
Guarantees. (a) Each Subject to the provisions of this Article X, each Guarantor hereby jointly fully, unconditionally and severally, irrevocably and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor and not merely as a surety, jointly and severally with each other Guarantor, to each Holder and of the Notes, to the extent lawful, and the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, whether for payment of principal of, premium, if any, or and 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 Notes held by the Holders, and all other monetary obligations of the Company Issuer under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or 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 all other Second Lien Obligations and (iithe obligations under Section 7.6) 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 the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further 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 each such Guarantorit, and that each such Guarantor it shall remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Guarantor 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 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 Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder, the Trustee or Collateral Agent Holder to any security held for payment of the Guaranteed Guarantor Obligations.
(ed) Except as expressly set forth in Sections 8.01 Section 10.2 and 10.02Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and 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 Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder, the Trustee or Collateral Agent 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 Notes, the Security Documents, the Intercreditor Agreement 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, the Security Documents, the Intercreditor Agreement or any other agreement, ; (d) the release of any security held by any waiver Holder or modification the Collateral Agent for the Guarantor Obligations or any of them; (e) the failure of any thereof, by Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the obligations, Guarantor Obligations; or by (h) 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 Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 and 10.02, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Except as set forth in Sections 8.01 and 10.02, each 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 of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent Holder upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, Trustee or the Trustee or Collateral Agent on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, 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 applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the Holders, the Trustee and Collateral Agent Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in respect of the Guaranteed Obligationssuch proceeding).
(hg) Each 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 itsuch Guarantor, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article 6 this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article 6Guarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(ih) Each Guarantor also agrees to pay any and all fees reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee, the Collateral Agent or any Holder the Holders in enforcing any rights under this Section 10.01Section.
(ji) Upon request of Neither the TrusteeIssuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, each Guarantor termination or discharge thereof and any such notation shall execute and deliver such further instruments and do such further acts as may not be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
(k) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice a condition to the Trustee from such direct or indirect parent validity of the Companyany Guarantee.
Appears in 1 contract
Guarantees. (a) Each Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder and Holder, to the Trustee extent lawful, and its successors and assigns (i) the Trustee, the full and punctual payment and performance when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, whether for payment of principal of, premium, if any, or and 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 Notes held by the Holders, and all other monetary obligations Obligations of the Company Issuers under this Indenture and the Notes and all other Second Lien Obligations and (iiincluding, without limitation, 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 Guarantor (or that would have accrued but for the filing of such petition or the commencement of such proceeding) the full and punctual performance within applicable grace periods of all other obligations of the Company whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture, the Notes post-petition interest is allowed in such proceeding and the Security Documents obligations under Section 7.6) (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further 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 each such Guarantorit, and that each such Guarantor it shall remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuers of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Guarantor Obligations. The .
(c) Each Guarantor further agrees that its 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 Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (ia) the failure of any Holder, the Trustee or Collateral Agent Holder to assert any claim or demand or to enforce any right or remedy against the Company Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (iib) any extension or renewal of this Indenture, the Notes or any other agreementthereof; (iiic) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (ivd) the release of any security, if any, security held by any Holder, the Trustee or Collateral Agent Holder for the Guaranteed Guarantor Obligations or any Guarantorof them; (ve) the failure of any Holder, Trustee or Collateral Agent Holder to exercise any right or remedy against any other guarantor of the Guaranteed ObligationsGuarantor; or (vif) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
(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. 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 Issuers 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent 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 Guarantor; (g) any default, failure or delay, willful or otherwise, in the performance of the obligations, Guarantor Obligations; or by (h) 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 Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 and 10.02, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Except as set forth in Sections 8.01 and 10.02, each 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 of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent Holder upon the bankruptcy or reorganization of the Company Issuers or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuers to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, Trustee or the Trustee or Collateral Agent on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, 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 applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the Holders, Issuers or any Guarantor (or that would have accrued but for the Trustee and Collateral Agent filing of such petitition or the commencement of such proceeding) whether or not a claim for post-filing or post-petition interest is allowed in respect of the Guaranteed Obligationssuch proceeding).
(hg) Each 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 itsuch Guarantor, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article 6 this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article 6Guarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(ih) Each Guarantor also agrees to pay any and all fees reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee, Trustee or the Collateral Agent or any Holder Holders in enforcing any rights under this Section 10.01Section.
(i) Each Guarantor acknowledges and agrees that the Guarantee of such Guarantor will be a general senior obligation of such Guarantor and will rank senior in right of payment to all future obligations of such Guarantor that are, by their terms, expressly subordinated in right of payment to such Guarantee and equal in right of payment with all existing and future obligations of such Guarantor that are not so subordinated.
(j) Upon request of Neither the TrusteeIssuers nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, each Guarantor termination or discharge thereof and any such notation shall execute and deliver such further instruments and do such further acts as may not be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
(k) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice a condition to the Trustee from such direct or indirect parent validity of the Companyany Guarantee.
Appears in 1 contract
Sources: Indenture (Atotech LTD)
Guarantees. (a) Each Guarantor (other than the QC Guarantors, who provide a guarantee of collection only and not a guarantee of performance or payment) hereby unconditionally guarantees, jointly and severally, irrevocably and unconditionally guarantees on a senior secured basis, as a primary obligor and not merely as a surety, to each Holder and to the Trustee and its successors and assigns (ia) 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, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, 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 Notes held by the Holders, all other monetary obligations of the Company Issuer under this Indenture and the Notes and all other Second Lien Obligations Note Documents and (iib) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise Issuer under this Indenture, the Notes and the Security Note Documents (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall will remain bound under this Article 10 12 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) . Each Guarantor waives presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (ia) the failure of any Holder, Holder or the Trustee or Collateral Agent to assert any claim or demand or to enforce any right or remedy against the Company Issuer or any other Person person under this Indenture, the Notes or any other agreement or otherwise; (iib) any extension or renewal of this Indenture, the Notes or any other agreementthereof; (iiic) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (ivd) the release of any security, if any, security held by any Holder, Holder or the Trustee or Collateral Agent for the Guaranteed Obligations or of any Guarantorof them; (ve) the failure of any Holder, Holder or the Trustee or Collateral Agent to exercise any right or remedy against any other guarantor Guarantor of the Guaranteed Obligations; or (vif) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
(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. 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 Note 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, Holder or the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) . Except as expressly set forth in Sections 8.01 9.10, 9.14, 11.02, 11.03, 12.03 and 10.0212.08, 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 Guarantee of the 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, Holder or the Trustee or Collateral Agent 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 terms thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any such Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, each Each Guarantor further agrees that its Note 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 (or premium, if any) or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, Holder or the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(g) . In furtherance of the foregoing and not in limitation of any other right which any Holder, Holder or the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuer to pay the principal of (or premium, if any) or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shallwill, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, Holders or the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations Obligations of the Company Issuer to the Holders, Holders and the Trustee and Collateral Agent in respect of the Guaranteed Obligations.
(h) Trustee. Each 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 in cash of all Guaranteed Obligations. Each Guarantor further agrees that, as between it, on the one hand, and the Holders, Holders and the Trustee and Collateral AgentTrustee, on the other hand, (ix) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 5 for the purposes of any such Guarantor’s Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (iiy) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 65, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) 12.01. Each Guarantor also agrees to pay any and all fees costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee, the Collateral Agent Trustee or any Holder in enforcing any rights under this Section 10.01.
(j) Upon request 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 Security Document or create Liens on its assets to secure the Obligations. Notwithstanding anything to the contrary contained herein, 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 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 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) such person is not submitting any application or filing or otherwise taking any action to obtain any authorization or consent of any Governmental Authority required in order to cause such person to Guarantee any First Lien Obligation (other than the Notes) or Junior Lien Obligation and (ii) at the time such Governmental Authority has approved such Material Transaction, the application, filing or other action to obtain any such authorization or consent of any Governmental Authority required in order to cause any person to become a Guarantor shall execute and deliver such further instruments and do such further acts as may promptly be reasonably necessary or proper to carry out more effectively made. Notwithstanding the purpose of this Indenture.
(k) Any Guarantee given by any direct or indirect parent foregoing, the guarantee of the Company may QC Guarantors shall be released a guarantee of collection only and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct not a guarantee of performance or indirect parent of the Companypayment.
Appears in 1 contract
Sources: Indenture (Qwest Corp)
Guarantees. (a) Each Subject to the provisions of this Article X, each Guarantor hereby hereby, jointly and severally, irrevocably and unconditionally guarantees on a senior secured basis, as a primary obligor and not merely as a surety, unconditionally and irrevocably, Guarantees to each Holder and to the Trustee Trustee, the Securities Obligations including, without limitation, the prompt and its successors complete payment and assigns performance by the Issuer and each other Guarantor when due (i) the full and punctual payment when due, whether at Stated Maturitythe stated maturity, by acceleration, by redemption or otherwise, of all obligations ) of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, whether for payment of principal of, premium, if any, or interest (including any and interest, feesif any, 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 Notes held by the Holders, Securities and all other monetary obligations and liabilities of the Company Issuer under this Indenture (including without limitation interest accruing after the filing of any petition in bankruptcy, or 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 Notes and all other Second Lien Obligations and (iiobligations under Section 7.07) 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 the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further agrees that the Guaranteed Guarantor Obligations shall rank equally in right of payment with other senior secured Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations. Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that each such Guarantor shall it will remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) . Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives notice of protest for nonpaymentnon-payment. Each Guarantor waives notice of any default under the Notes Securities or the Guaranteed Guarantor 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 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 Guarantee herein constitutes a guarantee an absolute, irrevocable and unconditional Guarantee of payment, performance and compliance when due payment (and is not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder, the Trustee or Collateral Agent Holder to any security held for payment of the Guaranteed Guarantor Obligations.
(e) . Except as expressly set forth in Sections 8.01 and Section 10.02, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full), 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 Guarantor 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 (a) the failure of any Holder, the Trustee or Collateral Agent Holder to assert any claim or demand or to enforce any right or remedy under against the Issuer or any other person under, this Indenture, the Notes Securities or any other agreement or otherwise; (b) any extension or renewal granted; (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 waiver Holder or modification the Trustee for the Guarantor Obligations or any of them; (e) the failure of any thereof, by Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the obligations, Guarantor Obligations; or by (h) 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 Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02. Subject to the provisions of Section 4.10, each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 10.03 hereof. Except as set forth in Sections 8.01 and 10.02, each 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 or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent Holder upon the bankruptcy insolvency, bankruptcy, dissolution, liquidation or reorganization of the Company Issuer or any other Guarantor or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the Issuer or any other Guarantor or any substantial part of its property, or otherwise.
(g) , all as though such payments had not been made. In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shallwill, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, 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 applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed Obligations.
(h) Each 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 itsuch Guarantor, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article 6 this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article 6Guarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01.
(i) Guarantee. Each Guarantor also agrees to pay any and all fees costs and expenses (including reasonable attorneys’ counsel fees and expenses) incurred by the Trustee, Trustee or the Collateral Agent or any Holder Holders in enforcing any rights under this Section 10.01.
(j) Upon request Section. Each of the Guarantors hereby agrees that its Guarantee of the Securities shall remain in full force and effect notwithstanding any failure to endorse on each Security a notation of such Guarantee. If an Officer of a Guarantor whose signature is on this Indenture or a Guarantee no longer holds that office at the time the Trustee authenticates the Security on which such Guarantee is endorsed or at any time thereafter, such Guarantor’s Guarantee of such Security shall nevertheless be valid, The delivery of any Security by the Trustee, after the authentication thereof hereunder shall constitute due delivery of any Guarantee set forth in this Indenture on behalf of each Guarantor. Each Guarantor shall execute (a) assumes all responsibility for being 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) Any Guarantee given by any direct or indirect parent keeping itself informed of the Company may be released financial condition and discharged from assets of any other Guarantor, and of all obligations under this Article 10 at any time other circumstances bearing upon written notice to the risk of nonpayment of the Guarantor Obligations and the nature, scope and extent of the risks that such Guarantor assumes and incurs hereunder, and (b) agrees that the Trustee from will not have any duty to advise such direct Guarantor of information known to it or indirect parent any of the Companyregarding such circumstances or risks.
Appears in 1 contract
Sources: Indenture (SFX Entertainment, INC)
Guarantees. (a) Each Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees on a senior secured basisGuarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder and of the Notes, to the extent lawful, and the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, whether for payment of principal of, premium, if any, or and 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 Notes held by the Holders, and all other monetary obligations Obligations of the Company under this Indenture and the Notes and all other Second Lien Obligations and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Company, or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture, the Notes post-petition interest is allowed in such proceeding and the Security Documents obligations under Section 7.6) (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further 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 each such Guarantorit, and that each such Guarantor it shall remain bound under this Article 10 X, notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Guarantor Obligations. The .
(c) Each Guarantor further agrees that its 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 Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (ia) the failure of any Holder, the Trustee or Collateral Agent Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other Person person under this Indenture, the Notes or any other agreement or otherwise; (iib) any extension or renewal of this Indenture, the Notes or any other agreementthereof; (iiic) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (ivd) the release of any security, if any, security held by any Holder, the Trustee or Collateral Agent Holder for the Guaranteed Guarantor Obligations or any Guarantorof them; (ve) the failure of any Holder, Trustee or Collateral Agent Holder to exercise any right or remedy against any other guarantor of the Guaranteed ObligationsGuarantor; or (vif) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
(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. 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.
; (dg) 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, Guarantor Obligations; or by (h) 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 Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 and 10.02, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII, as applicable. Except as set forth in Sections 8.01 and 10.02, each 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 of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent Holder upon the bankruptcy or reorganization of the Company or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, Trustee or the Trustee or Collateral Agent on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, 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 applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company to the Holders, the Trustee and Collateral Agent or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in respect of the Guaranteed Obligationssuch proceeding).
(hg) Each 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 itsuch Guarantor, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article 6 this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article 6Guarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(ih) Each Guarantor also agrees to pay any and all fees reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee, Trustee or the Collateral Agent or any Holder Holders in enforcing any rights under this Section 10.0110.1.
(ji) 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) Any Guarantee given by any direct or indirect parent of Neither the Company may nor the Guarantors shall be released required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and discharged from all obligations under this Article 10 at any time upon written notice such notation shall not be a condition to the Trustee from such direct or indirect parent validity of the Companyany Guarantee.
Appears in 1 contract
Sources: Indenture (Lannett Co Inc)
Guarantees. (a) Each Guarantor hereby jointly and severally, irrevocably and unconditionally guarantees on a senior secured basis, as a primary obligor and not merely as a surety, to each Holder and to the Trustee and its their successors and assigns (i) the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by redemption acceleration or otherwise, of all obligations of the Company Issuer under this Indenture (including obligations to the Trustee and Collateral AgentTrustee) and the Notes, whether for payment of principal of, premium, if any, or interest (including any intereston, feesif any, 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 Notes held by the Holders, and all other monetary obligations of the Company Issuer 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 Issuer whether for fees, expenses, indemnification or otherwise under this Indenture, the Notes Indenture and the Security Documents Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “"Guaranteed Obligations”"). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 Ten notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives 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 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 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, Holder or the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(ed) Except as expressly set forth in Sections 8.01 8.01(b), 10.02, 10.03 and 10.0210.06, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 Subject to Section 10.02 and 10.0210.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, each 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, Holder or the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, Holder or the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuer to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee (or Collateral Agent its designee) an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company Issuer to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed ObligationsTrustee.
(hg) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders Trustee in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between it, on the one hand, and the Holders, the Trustee and Collateral AgentTrustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 Six for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6Six, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(ih) Each Guarantor also agrees to pay any and all fees costs and expenses (including reasonable attorneys’ ' fees and expenses) incurred by the Trustee, the Collateral Agent Trustee or any Holder in enforcing any rights under this Section 10.01.
(j) Upon request of the Trustee, each . 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.
(k) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Sources: Indenture (Kronos Worldwide Inc)
Guarantees. (a) Each Subject to the provisions of this Article 10, each Guarantor hereby jointly and severally, severally with each other Guarantor irrevocably and unconditionally guarantees on a senior secured basis, (to the extent permitted by law) as a primary obligor and not merely as a surety, surety on a senior basis to each Holder Holder, the Trustee, the Collateral Agent and to the Trustee and its their respective successors and assigns (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations Obligations of the Company Issuer under this Indenture (including obligations to the Trustee and Collateral AgentTrustee) and the NotesSecurities, whether for payment of principal of, premium, if any, or premium or interest on, the Securities (including and any interest, fees, costs or charges that would accrue but for the provisions of (xapplicable Exit Fee) the Bankruptcy Code after any bankruptcy or insolvency petition under the Bankruptcy Code and (y) any other debtor relief laws) on the Notes held by the Holders, all other monetary obligations of the Company Issuer under this Indenture and the Notes and all other Second Lien Obligations Securities, and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuer, whether for fees, expenses, indemnification or otherwise under this Indenture, the Notes Indenture and the Security Documents Securities, on the terms set forth in this Indenture by becoming a party to this Indenture (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Obligations”). .
(b) Each Guarantor further agrees that (to the extent permitted by law) the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. The Guaranteed Obligations of a Guarantor will 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 Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives 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 Company Issuer or any other Person under this Indenture, the Notes Securities, any Security Document, or any other agreement or otherwise; (ii) any extension or renewal of this Indenture, the Notes 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 Notes Securities, any Security Document or any other agreement; (iv) the release of any security, if 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)10.03.
(cd) Each Guarantor hereby waives any right to which it may be entitled to (i) 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 , (ii) have the assets of the Company Issuer or any other Guarantor first be used and depleted as payment of the CompanyIssuer’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 hereunder and (iii) require that the Company Issuer be sued prior to an action being initiated against such Guarantor.
(de) 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, the Trustee or the Collateral Agent to any security held for payment of the Guaranteed Obligations.
(ef) Except as expressly set forth in Sections 8.01 8.01, 10.02, 10.03 and 10.0210.06, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than the payment in full of the Guaranteed Obligations), 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 (i) the failure of any Holder, the Trustee or the Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes Securities, any Security Document or any other agreement, by (ii) any waiver or modification of any thereof, by (iii) any default, failure or delay, willful or otherwise, in the performance of the obligations, Guaranteed Obligations or by (iv) 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 Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(fg) Except as expressly set forth in Sections 8.01 and 10.0210.03, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the its Guaranteed Obligations. Except as expressly set forth in Sections 8.01 and 10.0210.03, 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, Holder or the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(gh) In furtherance of the foregoing and not in limitation of any other right which that any Holder, the Trustee or the Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuer to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, 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 Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed ObligationsObligations then due, (ii) accrued and unpaid interest on such Guaranteed Obligations then due (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company Issuer then due to the Holders, the Trustee and the Collateral Agent in respect of the Guaranteed Obligations.
(hi) Each 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 it, 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 hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(ij) Each Guarantor also agrees to pay any and all fees costs and expenses (including reasonable and documented attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 10.01.
(jk) Upon request of the Trustee, each 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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Guarantees. (a) Each Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder and Holder, to the extent lawful, and the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, whether for payment of principal of, premium, if any, or and 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 Notes held by the Holders, and all other monetary obligations Obligations of the Company Issuers under this Indenture and the Notes and all other Second Lien Obligations and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuers or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture, the Notes post-petition interest is allowed in such proceeding and the Security Documents obligations under Section 7.6) (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further 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 each such Guarantorit, and that each such Guarantor shall it will remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuers of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Guarantor Obligations. The .
(c) Each Guarantor further agrees that its 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 Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder, the Trustee or Collateral Agent Holder to assert any claim or demand or to enforce any right or remedy against the Company Issuers 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 agreementthereof; (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, security held by any Holder, the Trustee or Collateral Agent Holder for the Guaranteed Guarantor Obligations or any Guarantorof them; (v) the failure of any Holder, Trustee or Collateral Agent Holder to exercise any right or remedy against any other guarantor of the Guaranteed ObligationsGuarantor; or (vi) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
the Issuers; (cvii) 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 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, Guarantor Obligations; or by (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 Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 and 10.02, each Each Guarantor agrees that its Guarantee shall herein will remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, each Guarantor further agrees that Obligations or such Guarantor is released from its Guarantee herein shall continue to be effective or be reinstatedin compliance with Section 4.1, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing Section 10.2 and not in limitation of any other right which any Holder, the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed Obligations.
(h) Each 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 it, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) Each Guarantor also agrees to pay any and all fees and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.Article
Appears in 1 contract
Guarantees. (a) Each Except as permitted in Section 4.24, each Note Guarantor hereby jointly and severally, severally irrevocably and unconditionally guarantees on a senior secured basis, as a primary obligor and not merely as a surety, to each Holder and to the Trustee and its successors and assigns (i1) the full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Company Issuer under this Indenture (including obligations to the Trustee and Collateral AgentTrustee) and the Notes, whether for payment of principal of, or interest, premium, if any, or interest (including any intereston, 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 Notes held by the Holders, and all other monetary obligations of the Company Issuer under this Indenture and the Notes and all other Second Lien Obligations and (ii2) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuer whether for fees, expenses, indemnification or otherwise under this Indenture, Indenture and the Notes and the Security Documents (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Note Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Note Guarantor, and that each such Note Guarantor shall remain bound under this Article 10 11 notwithstanding any extension or renewal of any Guaranteed Obligation. The Note Guarantees will be substantially in the form of Exhibit B or C hereto.
(b) Each Note Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Note Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Note Guarantor hereunder shall not be affected by (i1) the failure of any Holder, Holder or the Trustee or Collateral Agent to assert any claim or demand or to enforce any right or remedy against the Company Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (ii2) any extension or renewal of this Indenture, the Notes or any other agreementthereof; (iii3) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (iv4) the release of any security, if any, security held by any Holder, Holder or the Trustee or Collateral Agent for the Guaranteed Obligations or any Guarantorof them; (v5) the failure of any Holder, Holder or 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 Note Guarantor, except as provided in Section 10.02(bSections 11.02(b) and (c).
(c) Each Note Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Note Guarantors, such that such Note Guarantor’s obligations would be less than the full amount claimed. Each Note Guarantor hereby waives any right to which it may be entitled to have the assets of the Company Issuer first be used and depleted as payment of the CompanyIssuer’s or such Note Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Note Guarantor hereunder. Each Note Guarantor hereby waives any right to which it may be entitled to require that the Company Issuer be sued prior to an action being initiated against such Note Guarantor.
(d) Each Note 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, Holder or the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 8.02, 11.02, 11.06, 11.08 and 10.02the Intercreditor Deeds, the obligations of each Note 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 Note Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder, Holder or the Trustee or Collateral Agent 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 obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Note Guarantor or would otherwise operate as a discharge of any Note Guarantor as a matter of law or equity.
(f) Except as expressly set forth in Sections 8.01 8.02, 11.02, 11.06, 11.08 and 10.02the Intercreditor Deeds, each Note Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, each Each Note 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, Holder or the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder, Holder or the Trustee or Collateral Agent has at law or in equity against any Note Guarantor by virtue hereof, upon the failure of the Company Issuer to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Note Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, Holders or the Trustee or Collateral Agent an amount equal to the sum of (i1) the unpaid principal amount of such Guaranteed Obligations, (ii2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii3) all other monetary obligations of the Company Issuer to the Holders, Holders and the Trustee and Collateral Agent in respect of the Guaranteed ObligationsTrustee.
(h) Each 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 Note Guarantor further agrees that, as between it, on the one hand, and the Holders, Holders and the Trustee and Collateral AgentTrustee, on the other hand, (i1) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii2) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.0111.01.
(i) Each Note Guarantor also agrees to pay any and all fees costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent Trustee or any Holder in enforcing any rights under this Section 10.0111.01.
(j) The Company shall procure that each of the Note Guarantors shall provide Note Guarantees within 10 days of the Closing Date, provided that Note Guarantors representing at least 75% of the EBITDA of the Company and the Restricted Subsidiaries on a combined basis for the fiscal year ended December 31, 2009 shall have provided Note Guarantees on or before the Closing Date.
(k) Upon request of the Trustee, each Note 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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Sources: Indenture (Virgin Media Inc.)
Guarantees. (a) Each Guarantor hereby jointly unconditionally and severally, irrevocably and unconditionally guarantees on a senior secured basis, as a primary obligor and not merely as a surety, to each Holder and to the Trustee and its successors and assigns (ia) the full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, whether for payment of principal of, premium, if any, or and interest (including any interestand Liquidated Damages, feesif any, 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 Notes held when due, whether at maturity, by the Holdersacceleration, by redemption or otherwise, and all other monetary obligations of the Company under this Indenture and the Notes and all other Second Lien Obligations and (iib) 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, Indenture and the Notes and the Security Documents (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed "Obligations”"). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, Guarantor and that each such Guarantor shall will remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (ia) the failure of any Holder, Holder or 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; (iib) any extension or renewal of this Indentureany thereof, the Notes or any other agreement; (iiic) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (ivd) 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 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed Obligations.
(h) Each 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 it, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) Each Guarantor also agrees to pay any and all fees and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Sources: Indenture (Fresh Foods Inc)
Guarantees. (a) Each Guarantor hereby The Subsidiary Guarantors hereby, jointly and severally, irrevocably and unconditionally guarantees guarantee on a senior secured basis, unsecured basis and as a primary obligor and not merely as a surety, surety to each Holder and to the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes and all other obligations and liabilities of the Company under this Indenture (including obligations without limitation interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Trustee and Collateral AgentCompany or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) and the Notes, 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 Notes 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 the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Obligations”). The Obligations of Subsidiary Guarantors under the Subsidiary Guarantees shall rank equally in right of payment with other Indebtedness of such Subsidiary Guarantor, except to the extent such other Indebtedness is expressly subordinate to the obligations arising under the Subsidiary Guarantee. Each Subsidiary Guarantor further agrees (to the extent permitted by law) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that each such Guarantor it shall remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) . Each Subsidiary Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives 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 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed Obligations.
(h) Each 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 it, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) Each Guarantor also agrees to pay any and all fees and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.for
Appears in 1 contract
Sources: Indenture (Cimarex Energy Co)
Guarantees. (a) Each Guarantor hereby jointly and severally, irrevocably and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor and not merely as a suretysurety on a senior basis, to each Holder and to the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Company Issuer under this Indenture (including obligations to the Trustee and Collateral Agent) Note Agreement and the Notes, 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 on in respect of (x) the Bankruptcy Code after any bankruptcy or insolvency petition under the Bankruptcy Code and (y) any other debtor relief laws) on the Notes held by the Holders, and all other monetary obligations of the Company Issuer under this Indenture Note Agreement 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 Issuer whether for fees, expenses, indemnification or otherwise under this Indenture, Note Agreement and the Notes and the Security Documents (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives 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 Holder to assert any claim or demand or to enforce any right or remedy against the Company Issuer or any other Person under this IndentureNote Agreement, the Notes or any other agreement or otherwise; (ii) any extension or renewal of this IndentureNote Agreement, the Notes or any other agreement; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this IndentureNote Agreement, the Notes or any other agreement; (iv) the release of any security, if any, security held by any Holder, the Trustee or Collateral Agent Holder for the Guaranteed Obligations or any Guarantor; (v) the failure of any Holder, Trustee or Collateral Agent Holder 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 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 Issuer or any other Guarantor first be used and depleted as payment of the CompanyIssuer’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 Issuer be sued prior to an action being initiated against such Guarantor.
(d) 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, the Trustee or Collateral Agent Holder to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 8.01, 10.02, 10.06 and 10.0212.04, 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, the Trustee or Collateral Agent Holder to assert any claim or demand or to enforce any remedy under this IndentureNote Agreement, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02, each Each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, each 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent Holder upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuer to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the TrusteeHolders, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent Holders an amount equal to the sum of of: (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company Issuer to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed Obligations.
(h) Each 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 it, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) Each Guarantor also agrees to pay any and all fees costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 10.01.
(j) Upon request of the TrusteeHolders, 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 IndentureNote Agreement.
(k) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Guarantees. (a) Each If Guarantees have been provided for any particular series of Securities pursuant to Section 2.01, each applicable Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, irrevocably and unconditionally guarantees on a senior secured basis, as a primary obligor and not merely as a surety, to each Holder and holder of Securities of such series, to the Trustee and its successors and assigns assigns: (ia) the full and punctual payment of all of the principal of, and any premium and interest on, the Securities of such series when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, 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 Notes held by the Holders, all other monetary obligations of the Company Issuers under this Indenture and the Notes and all other Second Lien Obligations Securities of such series; and (iib) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise Issuers under this Indenture, Indenture with respect to the Notes Securities of such series and under the Security Documents Securities of such series (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, Guarantor and that each such Guarantor shall will remain bound under this Article 10 XIII notwithstanding any extension or renewal of any Guaranteed Obligation.
. In addition, if Guarantees have been provided pursuant to Section 2.01 for a particular series of Securities, each applicable Guarantor waives: (b1) Each Guarantor waives presentation to, demand of of, payment from and protest to the Company Issuers of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives non-payment; and (2) notice of any default under the Notes Securities of such series or the Guaranteed Obligations, and agrees that the holders of such Securities may exercise their rights of enforcement under its Guarantee without first exercising their rights of enforcement directly against the Issuers. The obligations of each Guarantor hereunder shall not be affected by by: (ia) the failure of any Holder, holder or the Trustee or Collateral Agent to assert any claim or demand or to enforce any right or remedy against the Company Issuers or any other Person under this Indenture, the Notes Securities or any other agreement or otherwise; (iib) any extension or renewal of this Indenture, the Notes or any other agreementthereof; (iiic) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Securities or any other agreement; (ivd) the release of any security, if any, security held by any Holder, holder or the Trustee or Collateral Agent for the Guaranteed Obligations or any Guarantorof them; (ve) the failure of any Holder, holder or the Trustee or Collateral Agent to exercise any right or remedy against any other guarantor Guarantor of the Guaranteed Obligations; or (vif) any change in the ownership of such Guarantor. If Guarantees have been provided for a particular series of Securities pursuant to Section 2.01, except as provided in Section 10.02(b).
(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. 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 each applicable 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, holder or the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except . If Guarantees have been provided for a particular series of Securities pursuant to Section 2.01, and except as expressly set forth in Sections 8.01 13.02 and 10.0213.06, the obligations of each applicable 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, Securityholder or the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes Securities or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any such Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02. If Guarantees have been provided for a particular series of Securities pursuant to Section 2.01, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, each applicable Guarantor further agrees that its Guarantee Guaranteed Obligations 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 of, or premium or interest on on, any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, holder of Securities or the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company an Issuer or otherwise.
(g) . In furtherance of the foregoing and not in limitation of any other right which any Holder, Securityholder or the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuers to pay the principal of of, or premium or interest on on, any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, Securityholders or the Trustee or Collateral Agent an amount equal to the sum of of: (i1) the unpaid principal amount of such Guaranteed Obligations, ; (ii2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) ); and (iii3) all other monetary obligations Guaranteed Obligations of the Company Issuers to the Holders, Securityholders and the Trustee and Collateral Agent in respect of the Guaranteed Obligations.
(h) Each 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 ObligationsTrustee. Each Guarantor further agrees that, as between it, on the one hand, and the Holders, Securityholders and the Trustee and Collateral AgentTrustee, on the other hand, : (ix) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 VI for the purposes of any such Guarantor’s Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, Obligations; and (iiy) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section. If Guarantees have been provided for a particular series of Securities pursuant to Section 10.01.
(i) Each 2.01, each applicable Guarantor also agrees to pay any and all fees costs and expenses (including reasonable attorneys’ fees and expensesexpenses of attorneys and other agents) incurred by the Trustee, the Collateral Agent Trustee or any Holder Securityholder in enforcing any rights under this Section 10.01Section.
(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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Sources: Indenture (American Realty Capital Properties, Inc.)
Guarantees. (a) Each For value received, each Subsidiary Guarantor hereby jointly and severally, irrevocably and unconditionally guarantees on a senior secured basisfully guarantees, as a primary principal obligor and not merely as surety, on a suretysecured, senior subordinated, joint and several basis, to each Holder and to the Trustee and its successors and assigns (i) on behalf of each Holder, the full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, whether for payment of principal of, premium, if any, or and interest (including any intereston, 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 Notes held by the Holders, all other monetary obligations of the Company Issuer under this the Indenture and this Note (including obligations to the Notes Trustee and all other Second Lien Obligations the obligations to pay Additional Amounts, if any) with respect to each Note authenticated and (ii) delivered by the full Trustee or its agent pursuant to and punctual performance within applicable grace periods of all other obligations of in accordance with the Company whether for fees, expenses, indemnification or otherwise under this Indenture, the Notes and the Security Documents (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and Indenture (all the Security Documents foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, Subsidiary Guarantor and that each such Subsidiary Guarantor shall remain bound under this by Article 10 Ten of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from . All payments under these Guarantees shall be made in euro. These and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The other additional obligations of each Subsidiary Guarantor hereunder shall not be affected by to the Holder and to the Trustee pursuant to these Guarantees and the Indenture (i) the failure of any Holderincluding, without limitation, the Trustee or Collateral Agent provisions relating to assert any claim or demand or submission 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 jurisdiction and appointment 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 Authorized 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 set forth in the ownership of such Guarantor, except as provided in Section 10.02(b).
(cIndenture) 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 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as are expressly set forth in Sections 8.01 the Indenture to which reference is hereby made for the precise terms of such obligations. These Guarantees shall be governed by, and 10.02construed in accordance with, 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 laws of the invalidity, illegality or unenforceability State of New York. This Guarantee is dated the date 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing Note upon which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equityit is endorsed.
(f) Except as set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed Obligations.
(h) Each 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 it, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) Each Guarantor also agrees to pay any and all fees and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Guarantees. (a) Each Guarantor hereby jointly and severally, irrevocably and unconditionally guarantees on a senior secured basis, as a primary obligor and not merely as a surety, to each Holder and to the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations In consideration of the Company under transactions contemplated by this Indenture Agreement, Tinicum hereby unconditionally guaranties to Sellers (including obligations to the Trustee and Collateral Agent) and the Notes, 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 Notes 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 the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents being hereinafter collectively called the “Guaranteed ObligationsTinicum Guaranty”). Each Guarantor further agrees ) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, Tinicum will duly and that each such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives 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 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstatedpunctually pay and/or perform, as the case may be, if at any time paymentall obligations, or any part thereofliabilities and undertakings of Buyer under this Agreement, including, without limitation, all obligations, liabilities and undertakings of principal Buyer under Sections 2.05 and 2.08 of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holderthis Agreement (collectively, the Trustee or Collateral Agent “Buyer Obligations”). Notwithstanding the forgoing Tinicum’s obligations under this Section 12.15 shall terminate upon the bankruptcy payment of any amounts due to Sellers under Section 2.08 or reorganization upon the determination of Final Net Worth pursuant to Section 2.07, in the Company event that Final Net Worth does not exceed the lesser of Estimated Final Net Worth or otherwiseTarget Net Worth.
(gb) In furtherance consideration of the foregoing transactions contemplated by this Agreement, USI hereby unconditionally guaranties to Buyer (the “USI Guaranty”) that USI will duly and not in limitation punctually pay and/or perform, as the case may be, all obligations, liabilities and undertakings of any other right which any HolderSellers under this Agreement, including, without limitation, all obligations, liabilities and undertakings of Sellers under Article 10 of this Agreement ((collectively, the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed “Seller Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed Obligations”).
(hc) Each Guarantor agrees The Tinicum Guaranty and the USI Guaranty are each an absolute, unconditional and continuing guarantee by Tinicum and USI, respectively, of the Buyer Obligations and the Seller Obligations, respectively, each in accordance with their terms, and not of their collectibility only. Enforcement of the liabilities and obligations of Tinicum and USI hereunder is in no way conditioned upon any requirement that it shall not be entitled any party first attempt to collect or take any action against Buyer (in the case of Tinicum) or Sellers (in the case of USI) or any other person primarily or secondarily liable with respect to the Buyer Obligations or the Seller Obligations or resort to any right security or other means of subrogation obtaining payment of any of the Buyer Obligations which Buyer, or the Seller Obligations which Sellers, may now have or may acquire after the date hereof or upon any other contingency whatsoever; provided, however, that nothing herein shall adversely affect USI’s or Tinicum’s rights to assert any defense available to Buyer (in relation the case of Tinicum) or Sellers (in the case of USI) under this Agreement or at law. Upon any default in the full and punctual payment and/or performance by Buyer with respect to the Holders Buyer Obligations or Sellers with respect to the Seller Obligations, in respect of any Guaranteed Obligations guaranteed hereby until payment each case in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between it, on the one hand, and the Holdersaccordance with their terms, the Trustee liabilities and Collateral Agent, on the other hand, obligations of Tinicum (i) the maturity as guarantor of the Guaranteed Obligations guaranteed hereby may be accelerated Buyer Obligations) and USI (as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect guarantor of the Guaranteed Obligations guaranteed herebySeller Obligations) hereunder shall, and (ii) in at the event option of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6the aggrieved party, such Guaranteed Obligations (whether or not become forthwith due and payable) shall forthwith become due , without demand or notice of any nature, all of which are hereby expressly waived by each of USI and payable by such Guarantor for the purposes of this Section 10.01.
(i) Each Guarantor also agrees to pay any and all fees and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 10.01.
(j) Upon request of the Trustee, each Guarantor shall execute and deliver such further instruments and do such further acts as Tinicum. Payments hereunder may be reasonably necessary required on any number of occasions from Tinicum or proper to carry out more effectively USI until such time as the purpose of this IndentureBuyer Obligations or Seller Obligations, respectively, are paid or satisfied, as the case may be, in full in accordance with their terms.
(k) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Us Industries Inc /De)
Guarantees. (a) Each Guarantor hereby irrevocably and unconditionally guarantees (in the case of each Foreign Guarantor, jointly and severally, irrevocably and unconditionally guarantees on a senior secured basisin the case of each Non-Subsidiary Guarantor, severally but not jointly) as a primary obligor and not merely as a suretysurety on a senior basis, to each Holder and to the Trustee (or any Paying Agent, Registrar, authenticating agent and its successors transfer agent acting on the Trustee’s behalf), and the Trustee’s successor and assigns (or the successor and assign of any Paying Agent, Registrar, authenticating agent and transfer agent acting on the Trustee’s behalf) (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Company Issuer under this Indenture (including obligations to the Trustee (or any Paying Agent, Registrar, authenticating agent and Collateral Agenttransfer agent acting on the Trustee’s behalf) and the Notes, 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 on in respect of (x) the Bankruptcy Code after any bankruptcy or insolvency petition under the Bankruptcy Code and (y) any other debtor relief laws) on the Notes held by the Holders, and all other monetary obligations of the Company Issuer 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 Issuer whether for fees, expenses, indemnification or otherwise under this Indenture, Indenture and the Notes and the Security Documents (all of the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives 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, Holder or the Trustee or Collateral Agent to assert any claim or demand or to enforce any right or remedy against the Company Issuer or any other Person under this Indenture, the Notes 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, security held by any Holder, Holder or the Trustee or Collateral Agent for the Guaranteed Obligations or any Guarantor; (v) the failure of any Holder, Holder or 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 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 Issuer or any other Guarantor first be used and depleted as payment of the CompanyIssuer’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 Issuer be sued prior to an action being initiated against such Guarantor.
(d) 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, Holder or the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 8.01(b), 10.02, 10.06 and 10.0210.08 (with respect to the Swiss Guarantors only), 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, Holder or the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02, each Each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, each 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, Holder or the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder, Holder or the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuer to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, Holders or the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company Issuer to the Holders, Holders and the Trustee and Collateral Agent in respect of the Guaranteed ObligationsTrustee.
(h) Each 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 it, on the one hand, and the Holders, Holders and the Trustee and Collateral AgentTrustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) Each Guarantor also agrees to pay any and all fees costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent Trustee or any Holder in enforcing any rights under this Section 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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Sources: Indenture (Affinion Group, Inc.)
Guarantees. (a) Each Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder and of the Notes, to the extent lawful, and the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, whether for payment of principal of, premium, if any, or and 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 Notes held by the Holders, and all other monetary obligations Obligations of the Company under this Indenture and the Notes and all other Second Lien Obligations and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Company, or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture, the Notes post-petition interest is allowed in such proceeding and the Security Documents obligations under Section 7.6) (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further 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 each such Guarantorit, and that each such Guarantor it shall remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Guarantor Obligations. The .
(c) Each Guarantor further agrees that its 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 Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (ia) the failure of any Holder, the Trustee or Collateral Agent Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other Person person under this Indenture, the Notes or any other agreement or otherwise; (iib) any extension or renewal of this Indenture, the Notes or any other agreementthereof; (iiic) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (ivd) the release of any security, if any, security held by any Holder, the Trustee or Collateral Agent Holder for the Guaranteed Guarantor Obligations or any Guarantorof them; (ve) the failure of any Holder, Trustee or Collateral Agent Holder to exercise any right or remedy against any other guarantor of the Guaranteed ObligationsGuarantor; or (vif) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
(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. 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.
; (dg) 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, Guarantor Obligations; or by (h) 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 Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 and 10.02, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Except as set forth in Sections 8.01 and 10.02, each 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 of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent Holder upon the bankruptcy or reorganization of the Company or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, Trustee or the Trustee or Collateral Agent on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, 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 applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company to the Holders, the Trustee and Collateral Agent or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in respect of the Guaranteed Obligationssuch proceeding).
(hg) Each 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 itsuch Guarantor, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article 6 this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article 6Guarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(ih) Each Guarantor also agrees to pay any and all fees reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee, Trustee or the Collateral Agent or any Holder Holders in enforcing any rights under this Section 10.0110.1.
(ji) 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) Any Guarantee given by any direct or indirect parent of Neither the Company may nor the Guarantors shall be released required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and discharged from all obligations under this Article 10 at any time upon written notice such notation shall not be a condition to the Trustee from such direct or indirect parent validity of the Companyany Guarantee.
Appears in 1 contract
Guarantees. (a) Each Guarantor hereby Subject to the provisions of this Article Thirteen, each Guarantor, hereby, jointly and severally, irrevocably and unconditionally guarantees on a senior secured basis, as a primary obligor and not merely as a surety, unconditionally and irrevocably, Guarantees to each Holder and to the Trustee Trustee, the Indenture Obligations including, without limitation, the prompt and its successors complete payment and assigns performance by the Issuer and each other Guarantor when due (i) the full and punctual payment when due, whether at Stated Maturitythe stated maturity, by acceleration, by redemption or otherwise, of all obligations ) of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, whether for payment of principal of, premium, if any, or interest (including any and interest, feesif any, 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 Notes held by the Holders, Securities and all other monetary obligations and liabilities of the Company Issuer under this Indenture (including without limitation interest accruing after the filing of any petition in bankruptcy, or 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 Notes and all other Second Lien Obligations and (iiobligations under Section 6.07) 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 the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further agrees that the Guaranteed Guarantor Obligations shall rank equally in right of payment with other senior secured Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations. Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that each such Guarantor shall it will remain bound under this Article 10 Thirteen notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) . Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives notice of protest for nonpaymentnon-payment. Each Guarantor waives notice of any default under the Notes Securities or the Guaranteed Guarantor 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 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 (subject (in the case of the Guarantors identified thereon) to the provisions of Section 13.06) that its Guarantee herein constitutes a guarantee an absolute, irrevocable and unconditional Guarantee of payment, performance and compliance when due payment (and is not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder, the Trustee or Collateral Agent Holder to any security held for payment of the Guaranteed Guarantor Obligations.
(e) . Except as expressly set forth in Sections 8.01 Section 13.02 (and 10.02except, in the case of the Guarantors identified therein, as set forth in the provisions of Section 13.06), the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full (or pursuant to Sections 8.01 or 10.13(c))), 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 Guarantor 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 (a) the failure of any Holder, the Trustee or Collateral Agent Holder to assert any claim or demand or to enforce any right or remedy under against the Issuer or any other person under, this Indenture, the Notes Securities or any other agreement or otherwise; (b) any extension or renewal granted; (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 waiver Holder or modification the Trustee for the Guarantor Obligations or any of them; (e) the failure of any thereof, by Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the obligations, Guarantor Obligations; or by (h) 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 Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(f) Except as set forth in . Subject to the provisions of Sections 8.01 8.01, 10.13 and 10.0210.14, each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Sections 8.01 and 10.02, each or 10.13 hereof (as applicable). 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 or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent Holder upon the bankruptcy insolvency, bankruptcy, dissolution, liquidation or reorganization of the Company Issuer or any other Guarantor or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the Issuer or any other Guarantor or any substantial part of its property, or otherwise.
(g) , all as though such payments had not been made. In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shallwill, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, 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 applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed Obligations.
(h) Each 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 itsuch Guarantor, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article 6 this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article 6Guarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01.
(i) Guarantee. Each Guarantor also agrees to pay any and all fees costs and expenses (including reasonable attorneys’ counsel fees and expenses) incurred by the Trustee, Trustee or the Collateral Agent or any Holder Holders in enforcing any rights under this Section 10.01.
(j) Upon request Section. Each of the Guarantors hereby agrees that its Guarantee of the Securities shall remain in full force and effect notwithstanding any failure to endorse on each Security a notation of such Guarantee. If an officer of a Guarantor whose signature is on this Indenture or a Guarantee no longer holds that office at the time the Trustee authenticates the Security on which such Guarantee is endorsed or at any time thereafter, such Guarantor’s Guarantee of such Security shall nevertheless be valid, The delivery of any Security by the Trustee, after the authentication thereof hereunder shall constitute due delivery of any Guarantee set forth in this Indenture on behalf of each Guarantor. Each Guarantor shall execute (a) assumes all responsibility for being 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) Any Guarantee given by any direct or indirect parent keeping itself informed of the Company may be released financial condition and discharged from assets of any other Guarantor, and of all obligations under this Article 10 at any time other circumstances bearing upon written notice to the risk of nonpayment of the Guarantor Obligations and the nature, scope and extent of the risks that such Guarantor assumes and incurs hereunder, and (b) agrees that the Trustee from will not have any duty to advise such direct Guarantor of information known to it or indirect parent any of the Companyregarding such circumstances or risks.
Appears in 1 contract
Sources: Consent Agreement (Blyth Inc)
Guarantees. (a) Each Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder and of the Notes, to the extent lawful, and the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, whether for payment of principal of, premium, if any, or and 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 Notes held by the Holders, and all other monetary obligations Obligations of the Company Issuers under this Indenture and the Notes and all other Second Lien Obligations and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuers or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture, the Notes post-petition interest is allowed in such proceeding and the Security Documents obligations under Section 7.6) (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further 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 each such Guarantorit, and that each such Guarantor it shall remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuers of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Guarantor Obligations. The .
(c) Each Guarantor further agrees that its 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 Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder, the Trustee or Collateral Agent Holder to assert any claim or demand or to enforce any right or remedy against the Company Issuers 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 agreementthereof; (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, security held by any Holder, the Trustee or Collateral Agent Holder for the Guaranteed Guarantor Obligations or any Guarantorof them; (v) the failure of any Holder, Trustee or Collateral Agent Holder to exercise any right or remedy against any other guarantor of the Guaranteed ObligationsGuarantor; or (vi) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
the Issuers; (cvii) 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 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, Guarantor Obligations; or by (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 Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 and 10.02, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Except as set forth in Sections 8.01 and 10.02, each 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 of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent Holder upon the bankruptcy or reorganization of the Company Issuers or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuers to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, Trustee or the Trustee or Collateral Agent on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, 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 applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the Holders, the Trustee and Collateral Agent Issuers or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in respect of the Guaranteed Obligationssuch proceeding).
(hg) Each 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 itsuch Guarantor, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article 6 this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article 6Guarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(ih) Each Guarantor also agrees to pay any and all fees reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expensesfees) incurred by the Trustee, Trustee or the Collateral Agent or any Holder Holders in enforcing any rights under this Section 10.01Section.
(i) None of the Issuers or the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Upon request Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the Trusteeapplicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, each Guarantor shall execute such limitations and deliver 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 further instruments limitations and do such further acts defenses as may be reasonably necessary or proper to carry out more effectively are described in the purpose Offering Memorandum under the caption “Limitations on Validity and Enforceability of this Indenturethe Guarantees” and (iii) other considerations under applicable law.
(k) Any Guarantee given by If and to the extent that a Guarantor incorporated in Switzerland (a “Swiss Guarantor”) is liable under the Guarantees or any other provision of the Notes or this Indenture, for obligations other than obligations of one of its wholly owned subsidiaries (being obligations of its direct or indirect parent companies (an up-stream guarantee) or other group companies except fully owned direct or indirect subsidiaries of each Swiss Guarantor (a cross-stream guarantee)) (for purposes of this clause (k), the “Restricted Obligations”), and that the making of a payment in fulfilling Restricted Obligations would under Swiss law (inter alia, prohibiting capital repayments or restricting distributions) at the time payment is due, not be permitted, then such obligations and payment amount shall from time to time be limited to the amount permitted to be paid under Swiss law; such amount currently considered to be the equivalent of the Company Swiss Guarantor’s distributable capital at the time or times payment is requested from the relevant Swiss Guarantor, and further provided that such limitation (as may apply from time to time or not) shall not (generally or definitively) release such Swiss Guarantor from payment obligations hereunder in excess thereof, but merely postpone the payment date therefore until such times as payment is again permitted notwithstanding such limitation. Any and all indemnities and guarantees contained in the Notes or this Indenture shall be released construed in a manner consistent with the provisos herein contained. In case a Swiss Guarantor who must make a payment in respect of Restricted Obligations under its Guarantee is obliged to withhold Swiss Withholding Tax (Verrechnungssteuer) in respect of such payment, such Swiss Guarantor shall:
(i) procure that such payments can be made without deduction of Swiss Withholding Tax, or with deduction of Swiss Withholding Tax at a reduced rate, by discharging the liability to such tax by notification pursuant to applicable law (including double tax treaties) rather than payment of the tax;
(ii) if the notification procedure pursuant to sub-paragraph (i) above does not apply, deduct Swiss Withholding Tax at the rate of 35% (or such other rate as in force from time to time), or if the notification procedure pursuant to sub-paragraph (i) above applies for a part of the Swiss Withholding Tax only, deduct Swiss Withholding Tax at the reduced rate resulting after the discharge of part of such tax by notification under applicable law, from any payment made by it in respect of Restricted Obligations and discharged promptly pay any such taxes to the Swiss Federal Tax Administration (Eidgenössische Steuerverwaltung);
(iii) notify the Trustee that such notification, or as the case may be, deduction has been made and provide the Trustee with evidence that such a notification of the Swiss Federal Tax Administration has been made or, as the case may be, such taxes deducted have been paid to the Swiss Federal Tax Administration;
(iv) in the case of a deduction of Swiss Withholding Tax:
(1) use its best efforts to ensure that any Person other than the Trustee which is entitled to a full or partial refund of the Swiss Withholding Tax deducted from all obligations such payment in respect of Restricted Obligations, will, as soon as possible after such deduction (A) request a refund of the Swiss Withholding Tax under this Article 10 at any time upon written notice applicable law (including tax treaties) and (B) pay to the Trustee upon receipt any amounts so refunded; and
(2) if the Trustee is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such direct or indirect parent payment, shall provide the Trustee those documents that are required by law and applicable tax treaties to be provided by the payer of such tax, in order to enable the CompanyTrustee to prepare a claim for refund of Swiss Withholding Tax.
Appears in 1 contract
Guarantees. (a) Each Guarantor Asset Entity hereby unconditionally and irrevocably guarantees, jointly and severally, irrevocably and unconditionally guarantees on a senior secured basis, as a primary obligor and not merely as a surety, to each Holder and to the Trustee Indenture Trustee, on behalf of the Noteholders, and its their respective successors and assigns (ia) the full and punctual timely payment of principal of and interest on the Notes when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, 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 Notes held by the Holders, all other monetary obligations of the Company Co-Issuers and the other Asset Entities under this Base Indenture and the Notes and all each other Second Lien Obligations Transaction Document and (iib) the full and punctual timely performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise Co-Issuers and the other Asset Entities under this Indenture, Base Indenture and the Notes and the Security all other Transaction Documents (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor Asset Entity waives presentation to, demand of of, payment from and protest to the Company Co-Issuers and the other Asset Entities of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor Asset Entity waives notice of any default under the Notes or the other Guaranteed Obligations. The obligations of each Guarantor Asset Entity hereunder shall not be affected by (ia) the failure of any Holder, Holder or the Indenture Trustee or Collateral Agent to assert any claim or demand or to enforce any right or remedy under the Transaction Documents against the Company any other Obligor or any other Person under this Indenture, the Notes or any other agreement or otherwise; (iib) any extension or renewal of this Indenture, the Notes or any other agreementthereof; (iiic) any rescission, waiver, amendment or modification of any of the terms or provisions of this Base Indenture, the Notes or any other agreementTransaction Document; (ivd) the release of any security, if any, security held by any Holder, Holder or the Indenture Trustee or Collateral Agent for the Guaranteed Obligations or any Guarantorof them; or (ve) the failure of any Holder, Holder or the Indenture 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 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 Asset Entity further agrees that its Guarantee 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, Holder or the Indenture Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) . Except as expressly set forth in Sections 8.01 and 10.02herein, the obligations of each Guarantor Asset Entity 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 Asset Entity herein shall not be discharged or impaired or otherwise affected by the failure of any Holder, Holder or the Indenture Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Base Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor such Asset Entity or would otherwise operate as a discharge of any Guarantor such Asset Entity as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, each Guarantor Each Asset Entity further agrees that its Guarantee guaranty 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, Holder or the Indenture Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company Co-Issuers or otherwise.
(g) . In furtherance of the foregoing and not in limitation of any other right which any Holder, Holder or the Indenture Trustee or Collateral Agent has at law or in equity against any Guarantor Asset Entity by virtue hereof, upon the failure of the Company Co-Issuers to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor Asset Entity hereby promises to and shall, upon receipt of written demand by the Indenture Trustee, forthwith pay, or cause to be paid, in cash, to the HoldersHolders or the Indenture Trustee, as the Trustee or Collateral Agent case may be, an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations Guaranteed Obligations of the Company to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed Obligations.
(h) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation Co-Issuers to the Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligationsand the Indenture Trustee. Each Guarantor further agrees that, as between it, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) Each Guarantor Asset Entity also agrees to pay any and all fees costs and expenses (including reasonable attorneys’ fees and expensesexpenses and court costs) incurred by the Trustee, the Collateral Agent or any Holder Indenture Trustee in enforcing any rights under this Section 10.01.
(j) Upon request Section. Notwithstanding any payment made by any Asset Entity hereunder, such Asset Entity shall not be entitled to be subrogated to any 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) Any Guarantee given by any direct or indirect parent rights of the Company may Indenture Trustee against the Co-Issuers or any collateral security or guarantee or right of offset held by the Indenture Trustee for the payment of the Obligations, nor shall the Asset Entity seek or be released and discharged entitled to seek any contribution or reimbursement from all obligations under this Article 10 the Co-Issuers 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 shall, forthwith upon written notice receipt by such Asset Entity, be turned over to the Indenture Trustee from in the exact form received by such direct Asset Entity (duly indorsed by such Asset Entity, as applicable, to the Indenture Trustee, if required), to be applied against the Obligations, whether matured or indirect parent of unmatured, in such order as the CompanyIndenture Trustee may determine.
Appears in 1 contract
Guarantees. (a) Each Guarantor hereby of AOL and Historic TW hereby, jointly and severally, unconditionally and irrevocably and unconditionally guarantees on a senior secured basis, as a primary obligor and not merely as a surety, to each Holder and to the Trustee Administrative Agent, for the ratable benefit of the Lenders and its successors their respective successors, indorsees, transferees and assigns assigns, the prompt and complete payment and performance by the Designated Borrowers when due (i) the full and punctual payment when due, whether at Stated Maturitythe stated maturity, by acceleration, by redemption acceleration or otherwise, of all obligations ) of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, 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 Notes 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 the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from Time Warner hereby unconditionally and protest irrevocably guarantees to the Company of any Administrative Agent, for the ratable benefit of the Guaranteed Obligations Lenders and also waives notice of protest for nonpayment. Each Guarantor waives 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 Holdertheir respective successors, indorsees, transferees and assigns, the Trustee or Collateral Agent to assert any claim or demand or to enforce any right or remedy against prompt and complete payment and performance by TWFI when due (whether at the Company or any other Person under this Indenturestated maturity, the Notes or any other agreement by acceleration 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 Obligations 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)TWFI.
(c) Each Guarantor hereby waives any right of TBS and TWCI hereby, jointly and severally, unconditionally and irrevocably guarantees to which it may be entitled to have 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 Historic TW when due (whether at the stated maturity, by acceleration or otherwise) of its obligations hereunder divided among and liabilities under this Guarantee (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"Historic TW Obligations") including under Section 2(a) hereof.
(d) 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02, each Guarantor agrees that its This Guarantee shall remain in full force and effect until the Obligations are paid in full, no Letter of Credit shall be outstanding (unless such Letter of Credit is cash collateralized in accordance with Section 2.05(c) of the Credit Agreement) and the Commitments are terminated, notwithstanding that from time to time prior thereto either one or both of the Designated Borrowers may be free from any Obligations.
(e) Each Guarantor agrees that whenever, at any time, or from time to time, it shall make any payment to the Administrative Agent or any Lender on account of its liability hereunder, it will notify the Administrative Agent and such Lender in full writing that such payment is made under this Guarantee for such purpose.
(f) Anything herein or in any other Credit Document to the contrary notwithstanding, the maximum liability of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, each Guarantor further agrees that its Guarantee herein hereunder and under the other Credit Documents shall continue in no event exceed the amount which can be guaranteed by such Guarantor under applicable federal and state laws relating to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, insolvency of principal debtors (after giving effect to the right of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company or otherwisecontribution established in Section 3 hereof).
(g) In furtherance No payment or payments made by either of the foregoing and not in limitation 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 other right which action or proceeding or any Holdersetoff or appropriation or payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the Trustee or Collateral Agent has at law or in equity against liability of any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and hereunder who shall, upon receipt of written demand notwithstanding any such payment or payments (other than payments made by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent Guarantor in respect of the Guaranteed Obligations.
(h) Each Obligations or payments received or collected from such 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 it, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations), remain liable for the Obligations guaranteed herebyand, and (ii) in the event case of any declaration of acceleration TBS and TWCI, the Historic TW Obligations, up to the maximum liability of such Guaranteed Guarantor hereunder until the Obligations as provided are paid in Article 6full, no Letter of Credit shall be outstanding (unless such Guaranteed Obligations (whether or not due and payableLetter of Credit is cash collaterized in accordance with Section 2.05(c) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) Each Guarantor also agrees to pay any and all fees and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 10.01.
(j) Upon request of the Trustee, each Guarantor shall execute Credit Agreement) 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 IndentureCommitments are terminated.
(k) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Sources: Credit Agreement (Time Warner Inc)
Guarantees. (a) Each Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder and of the Notes, to the extent lawful, and the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, whether for payment of principal of, premium, if any, or and 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 Notes held by the Holders, and all other monetary obligations Obligations of the Company Issuer under this Indenture and the Notes and all other Second Lien Obligations and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuer or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture, the Notes post-petition interest is allowed in such proceeding and the Security Documents obligations under Section 7.6) (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further 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 each such Guarantorit, and that each such Guarantor it shall remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Guarantor Obligations. The .
(c) Each Guarantor further agrees that its 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 Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (ia) the failure of any Holder, the Trustee or Collateral Agent Holder to assert any claim or demand or to enforce any right or remedy against the Company Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (iib) any extension or renewal of this Indenture, the Notes or any other agreementthereof; (iiic) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (ivd) the release of any security, if any, security held by any Holder, the Trustee or Collateral Agent Holder for the Guaranteed Guarantor Obligations or any Guarantorof them; (ve) the failure of any Holder, Trustee or Collateral Agent Holder to exercise any right or remedy against any other guarantor of the Guaranteed ObligationsGuarantor; or (vif) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
the Issuer; (cg) 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 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, Guarantor Obligations; or by (h) 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 Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 and 10.02, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Except as set forth in Sections 8.01 and 10.02, each 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 of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent Holder upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, Trustee or the Trustee or Collateral Agent on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, 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 applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the Holders, the Trustee and Collateral Agent Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in respect of the Guaranteed Obligationssuch proceeding).
(hg) Each 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 itsuch Guarantor, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article 6 this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article 6Guarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(ih) Each Guarantor also agrees to pay any and all fees reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee, Trustee or the Collateral Agent or any Holder Holders in enforcing any rights under this Section 10.01Section.
(i) None of the Issuer or the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Upon request Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the Trusteeapplicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, each Guarantor shall execute such limitations and deliver 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 further instruments limitations and do such further acts defenses as may be reasonably necessary or proper to carry out more effectively are described in the purpose Offering Memorandum under the caption “Limitations on Validity and Enforceability of this Indenturethe Guarantees and the Security Interests” and (iii) other considerations under applicable law.
(k) Any Guarantee given by If and to the extent that a Guarantor incorporated in Switzerland (a “Swiss Guarantor”) is liable under the Guarantees or any other provision of the Notes or this Indenture, for obligations other than obligations of one of its wholly owned subsidiaries (being obligations of its direct or indirect parent companies (an up-stream guarantee) or sister companies (a cross-stream guarantee)) (for purposes of this clause (k), the “Restricted Obligations”), and that the making of a payment in fulfilling Restricted Obligations would under Swiss corporate law (inter alia, prohibiting capital repayments or restricting distributions) at the time payment is due, not be permitted, then such obligations and payment amount shall from time to time be limited to the amount permitted to be paid under Swiss corporate law; provided that such limited amount shall at no time be less than such Swiss Guarantor’s distributable capital at the time or times payment is requested from the relevant Swiss Guarantor, and further provided that such limitation (as may apply from time to time or not) shall not (generally or definitively) release such Swiss Guarantor from payment obligations hereunder in excess thereof, but merely postpone the payment date therefore until such times as payment is again permitted notwithstanding such limitation. Any and all indemnities and guarantees contained in the Notes or this Indenture shall be construed in a manner consistent with the provisos herein contained. In case a Swiss Guarantor who must make a payment in respect of Restricted Obligations under its Guarantee is obliged to withhold Swiss Withholding Tax (Verrechnungssteuer) in respect of such payment, such Swiss Guarantor shall:
(i) procure that such payments can be made without deduction of Swiss Withholding Tax, or with deduction of Swiss Withholding Tax at a reduced rate, by discharging the liability to such tax by notification pursuant to applicable law (including double tax treaties) rather than payment of the Company tax;
(ii) if the notification procedure pursuant to sub-paragraph (i) above does not apply, deduct Swiss Withholding Tax at the rate of 35% (or such other rate as in force from time to time), or if the notification procedure pursuant to sub-paragraph (i) above applies for a part of the Swiss Withholding Tax only, deduct Swiss Withholding Tax at the reduced rate resulting after the discharge of part of such tax by notification under applicable law, from any payment made by it in respect of Restricted Obligations and promptly pay any such taxes to the Swiss Federal Tax Administration (Eidgenössische Steuerverwaltung);
(iii) notify the Trustee that such notification, or as the case may be released be, deduction has been made and discharged provide the Trustee with evidence that such a notification of the Swiss Federal Tax Administration has been made or, as the case may be, such taxes deducted have been paid to the Swiss Federal Tax Administration;
(iv) in the case of a deduction of Swiss Withholding Tax:
(1) use its best efforts to ensure that any Person other than the Trustee which is entitled to a full or partial refund of the Swiss Withholding Tax deducted from all obligations such payment in respect of Restricted Obligations, will, as soon as possible after such deduction (A) request a refund of the Swiss Withholding Tax under this Article 10 at any time upon written notice applicable law (including tax treaties) and (B) pay to the Trustee upon receipt any amounts so refunded; and
(2) if the Trustee is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such direct or indirect parent payment, shall provide the Trustee those documents that are required by law and applicable tax treaties to be provided by the payer of such tax, in order to enable the CompanyTrustee to prepare a claim for refund of Swiss Withholding Tax.
Appears in 1 contract
Guarantees. (a) Each Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder and Holder, to the extent lawful, and the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, whether for payment of principal of, premium, if any, or and 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 Notes held by the Holders, and all other monetary obligations Obligations of the Company Issuers under this Indenture and the Notes and all other Second Lien Obligations and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuers or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture, the Notes post-petition interest is allowed in such proceeding and the Security Documents obligations under Section 7.6) (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further 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 each such Guarantorit, and that each such Guarantor shall it will remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuers of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Guarantor Obligations. The .
(c) Each Guarantor further agrees that its 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 Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder, the Trustee or Collateral Agent Holder to assert any claim or demand or to enforce any right or remedy against the Company Issuers 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 agreementthereof; (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, security held by any Holder, the Trustee or Collateral Agent Holder for the Guaranteed Guarantor Obligations or any Guarantorof them; (v) the failure of any Holder, Trustee or Collateral Agent Holder to exercise any right or remedy against any other guarantor of the Guaranteed ObligationsGuarantor; or (vi) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
the Issuers; (cvii) 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 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, Guarantor Obligations; or by (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 Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 and 10.02, each Each Guarantor agrees that its Guarantee shall herein will remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Except as set forth in Sections 8.01 and 10.02, each Each Guarantor further agrees that its Guarantee herein shall 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 of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent Holder upon the bankruptcy or reorganization of the Company Issuers or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuers to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall will become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shallwill, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, Trustee or the Trustee or Collateral Agent on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, 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 applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the Holders, the Trustee and Collateral Agent Issuers or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in respect of the Guaranteed Obligationssuch proceeding).
(hg) Each 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 itsuch Guarantor, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article 6 this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article 6Guarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall will forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(ih) Each Guarantor also agrees to pay any and all fees reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee, Trustee or the Collateral Agent or any Holder Holders in enforcing any rights under this Section 10.01Section.
(ji) Upon request of Neither the TrusteeIssuers nor the Guarantors will be required to make a notation on the Notes to reflect any Guarantee or any release, each Guarantor shall execute termination or discharge thereof and deliver any such further instruments and do such further acts as may notation will not be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
(k) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice a condition to the Trustee from such direct or indirect parent validity of the Companyany Guarantee.
Appears in 1 contract
Guarantees. (a) Each Guarantor hereby jointly and severally, severally irrevocably and unconditionally guarantees on a senior secured basis, as a primary obligor and not merely as a surety, surety on a senior basis to each Holder Holder, the Trustee, the Collateral Agent and to the Trustee and its their respective successors and assigns (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations Obligations of the Company Issuer under this Indenture (including obligations to the Trustee and Collateral AgentTrustee) and the NotesSecurities, whether for payment of principal of, or premium, if any, or interest (including any interest, feesif any, costs or charges that would accrue but for on, the provisions of (x) the Bankruptcy Code after any bankruptcy or insolvency petition under the Bankruptcy Code Securities and (y) any other debtor relief laws) on the Notes held by the Holders, all other monetary obligations of the Company Issuer under this Indenture and the Notes and all other Second Lien Obligations Securities, and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuer, whether for fees, expenses, indemnification or otherwise under this Indenture, the Notes Indenture and the Security Documents Securities, on the terms set forth in this Indenture by becoming a party to this Indenture (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Obligations”). .
(b) Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. The Guaranteed Obligations of a Guarantor will 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 4.13 and 4.16.
(bc) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives 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 Company Issuer or any other Person under this Indenture, the Notes Securities, any Security Document, or any other agreement or otherwise; (ii) any extension or renewal of this Indenture, the Notes 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 Notes Securities, any Security Document or any other agreement; (iv) the release of any security, if 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)10.03.
(cd) Each Guarantor hereby waives any right to which it may be entitled (except as may be required by applicable requirements of law or regulation and to the extent the relevant requirement cannot be waived) to (i) 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 , (ii) have the assets of the Company Issuer or any other Guarantor first be used and depleted as payment of the CompanyIssuer’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 hereunder and (iii) require that the Company Issuer be sued prior to an action being initiated against such Guarantor.
(de) 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, the Trustee or the Collateral Agent to any security held for payment of the Guaranteed Obligations.
(ef) Except as expressly set forth in Sections 8.01 8.01, 10.02, 10.03 and 10.0210.06, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim (other than payment in full) 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 (i) the failure of any Holder, the Trustee or the Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes Securities, any Security Document or any other agreement, by (ii) any waiver or modification of any thereof, by (iii) any default, failure or delay, willful or otherwise, in the performance of the obligations, or by (iv) 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 Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(fg) Except as expressly set forth in Sections 8.01 and 10.0210.03, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the its Guaranteed Obligations. Except as expressly set forth in Sections 8.01 and 10.0210.03, 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, Holder or the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(gh) In furtherance of the foregoing and not in limitation of any other right which that any Holder, the Trustee or the Collateral Agent has at law or in equity against any Guarantor by virtue hereof, at any time when an Event of Default pursuant to Section 6.01(a) or 6.01(b) has occurred and is continuing or upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or Issuer to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, 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 Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company Issuer then due to the Holders, the Trustee and the Collateral Agent in respect of the Guaranteed Obligations.
(hi) Each 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 it, 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 hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(ij) Each Guarantor also agrees to pay any and all fees costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 10.01.
(jk) Upon request of the Trustee, each 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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Sources: Indenture (Vivus Inc)
Guarantees. (a) Each Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder and of the Notes, to the extent lawful, and the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, whether for payment of principal of, premium, if any, or and 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 Notes held by the Holders, and all other monetary obligations Obligations of the Company Issuer under this Indenture and the Notes and all other Second Lien Obligations and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuer, or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture, the Notes post-petition interest is allowed in such proceeding and the Security Documents obligations under Section 7.6) (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further 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 each such Guarantorit, and that each such Guarantor it shall remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Guarantor Obligations.
(c) Without prejudice to the foregoing, any Guarantor incorporated under the laws of the Federative Republic of Brazil further waives and renounces, to the fullest extent permitted by applicable law, any and all rights and/or benefits it may have under Articles 333, sole paragraph, 366, 827, 829, 830, 834, 835, 837, 838 and 839 of Law No. The 10,406, dated January 10, 2002, as amended from time to time, and Articles 130 and 794 of Law No. 13,105, dated March 16, 2015, as amended from time to time.
(d) Each Guarantor further agrees that its 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 Guarantor Obligations.
(e) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (ia) the failure of any Holder, the Trustee or Collateral Agent Holder to assert any claim or demand or to enforce any right or remedy against the Company Issuer or any other Person person under this Indenture, the Notes or any other agreement or otherwise; (iib) any extension or renewal of this Indenture, the Notes or any other agreementthereof; (iiic) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (ivd) the release of any security, if any, security held by any Holder, the Trustee or Collateral Agent Holder for the Guaranteed Guarantor Obligations or any Guarantorof them; (ve) the failure of any Holder, Trustee or Collateral Agent Holder to exercise any right or remedy against any other guarantor of the Guaranteed ObligationsGuarantor; or (vif) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
the Issuer; (cg) 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 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, Guarantor Obligations; or by (h) 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 Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII, as applicable. Except as set forth in Sections 8.01 and 10.02, each 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 of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent Holder upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, Trustee or the Trustee or Collateral Agent on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, 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 applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the Holders, the Trustee and Collateral Agent Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in respect of the Guaranteed Obligationssuch proceeding).
(h) Each 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 itsuch Guarantor, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article 6 this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article 6Guarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(i) Each Guarantor also agrees to pay any and all fees reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee, Trustee or the Collateral Agent or any Holder Holders in enforcing any rights under this Section 10.0110.1.
(j) Upon request of Neither the TrusteeIssuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, each Guarantor termination or discharge thereof and any such notation shall execute and deliver such further instruments and do such further acts as may not be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
(k) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice a condition to the Trustee from such direct or indirect parent validity of the Companyany Guarantee.
Appears in 1 contract
Sources: Indenture (Sylvamo Corp)
Guarantees. (a) Each Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, irrevocably and unconditionally guarantees on a senior secured basis, as a primary obligor and not merely as a surety, to each Holder and to the Trustee and its successors and assigns (ia) the full and punctual payment of principal of and interest on the Notes when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral AgentTrustee) and the Notes, 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 on in respect of (x) the Bankruptcy Code after any bankruptcy or insolvency petition under the Bankruptcy Code and (y) any other debtor relief laws) on the Notes held by the Holders, and all other monetary obligations of the Company under this Indenture and the Notes and all other Second Lien Obligations and (iib) 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, Indenture and the Notes and the Security Documents (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, Guarantor and that each such Guarantor shall will remain bound under this Article 10 11 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) . Each Guarantor waives presentation to, demand of of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (ia) the failure of any Holder, Holder or 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; (iib) any extension or renewal of this Indenture, the Notes or any other agreement; (iiic) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (ivd) the release of any security, if any, security held by any Holder, Holder or the Trustee or Collateral Agent for the Guaranteed Obligations or any Guarantor; (ve) the failure of any Holder, Holder or the Trustee or Collateral Agent to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (vif) except as set forth in Section 11.07, any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
(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. 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 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, Holder or the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) . Except as expressly set forth in Sections 8.01 11.02 and 10.0211.07 hereof, 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, Holder or the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any such Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, each 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, Holder or the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company or otherwise.
(g) . In furtherance of the foregoing and not in limitation of any other right which any Holder, Holder or the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, Holders or the Trustee or Collateral Agent an amount equal to the sum of (i1) the unpaid principal amount of such Guaranteed Obligations, (ii2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii3) all other monetary obligations of the Company to the Holders, Holders and the Trustee and Collateral Agent in respect of the Guaranteed Obligations.
(h) Trustee. Each 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 it, on the one hand, and the Holders, Holders and the Trustee and Collateral AgentTrustee, on the other hand, (ix) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any such Guarantor’s Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (iiy) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) Section. Each Guarantor also agrees to pay any and all fees costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent Trustee or any Holder in enforcing any rights under this Section 10.01.
(j) Section. Upon request of the TrusteeTrustee (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.
(k) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Guarantees. (a) Each Subject to the provisions of this Article 10, each Guarantor hereby jointly and severallyseverally with each other Guarantor, irrevocably and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor and not merely as a suretysurety on a senior basis, to each Holder Holder, the Trustee, the Collateral Agent and to the Trustee and its their respective successors and assigns (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Company Issuer under this Indenture (including obligations to the Trustee and Collateral AgentTrustee) and the NotesSecurities, whether for payment of principal of, or premium, if any, or interest (including any intereston, 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 Securities and (y) any other debtor relief laws) on the Notes held by the Holders, all other monetary obligations of the Company Issuer under this Indenture and the Notes and all other Second Lien Obligations Securities, and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuer, whether for fees, expenses, indemnification or otherwise under this Indenture, the Notes Indenture and the Security Documents Securities (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Obligations”). .
(b) Each Guarantor further agrees that (to the extent permitted by law) the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. The Guaranteed Obligations of a Guarantor will 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 Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives 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 Company Issuer or any other Person under this Indenture, the Notes Securities, any Security Document, or any other agreement or otherwise; (ii) any extension or renewal of this Indenture, the Notes 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 Notes Securities, any Security Document or any other agreement; (iv) the release of any security, if 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 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 Issuer or any other Guarantor first be used and depleted as payment of the CompanyIssuer’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 Issuer be sued prior to an action being initiated against such Guarantor.
(de) 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, the Trustee or the Collateral Agent to any security held for payment of the Guaranteed Obligations.
(ef) Except as expressly set forth in Sections 8.01 Section 8.01, Section 10.02 and 10.02Paragraph 19 of the form of Security set forth in Exhibit A hereto, 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, the Trustee or the Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes Securities, any Security Document or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which that may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(fg) Except as expressly set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the its Guaranteed Obligations. Except as expressly set forth in Sections 8.01 and 10.02, 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, Holder or the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(gh) In furtherance of the foregoing and not in limitation of any other right which that any Holder, the Trustee or the Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuer to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, 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 Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company Issuer then due to the Holders, the Trustee and the Collateral Agent in respect of the Guaranteed Obligations.
(hi) Each 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 it, 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 hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(ij) Each Guarantor also agrees to pay any and all fees costs and expenses (including reasonable and documented attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 10.01.
(jk) Upon request of the Trustee, each 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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Sources: Indenture (Egalet Corp)
Guarantees. (a) Each Guarantor The Guarantors hereby jointly and severallyunconditionally guarantee, irrevocably and unconditionally guarantees on a senior secured basis, unsecured basis and as a primary obligor and not merely as a surety, jointly and severally with each other Guarantor, to each Holder and to the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of the principal of, premium and additional amounts, if any, and interest on the Notes and all other obligations and liabilities of the Company Issuer under this Indenture (including obligations without limitation interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Trustee and Collateral Agent) and the NotesIssuer, 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 Notes held by the Holders, all other monetary obligations of the Company under this Indenture and the Notes and all other Second Lien Obligations and (iior any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) 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 the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being 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 Guarantor further agrees (to the extent permitted by law) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that each such Guarantor it shall remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) . Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (ia) the failure of any Holder, the Trustee or Collateral Agent Holder to assert any claim or demand or to enforce any right or remedy against the Company Issuer or any other Person person under this Indenture, the Notes or any other agreement or otherwise; (iib) any extension or renewal of this Indenture, the Notes or any other agreementthereof; (iiic) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (ivd) the release of any security, if any, security held by any Holder, Holder or the Trustee or Collateral Agent for the Guaranteed Obligations or any Guarantorof them; (ve) the failure of any Holder, Trustee or Collateral Agent Holder to exercise any right or remedy against any other guarantor of the Guaranteed ObligationsGuarantor; or (vif) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
(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. 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 Issuer or 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 Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder, the Trustee or Collateral Agent Holder to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, the . The obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Obligations in full), 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, the Trustee or Collateral Agent Holder to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligationsObligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02, each . Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsObligations or such Guarantor is released from its 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 10.2 or otherwise in accordance with the terms of this Indenture. Except as set forth in Sections 8.01 and 10.02, each 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 or interest on any Guaranteed Obligation of the Obligations is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent Holder upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(g) . In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, 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 applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed Obligations.
(h) Each 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 itsuch Guarantor, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (ix) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article 6Obligations, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01.
(i) Guarantee. Each Guarantor also agrees to pay any and all fees reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee, Trustee or the Collateral Agent or any Holder Holders in enforcing any rights under this Section 10.01Section.
(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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Sources: Indenture (Quiksilver Inc)
Guarantees. (a) Each Guarantor hereby of the Company’s Subsidiary Guarantors, jointly and severally, irrevocably and unconditionally guarantees on a senior secured basisand, as a primary obligor and not merely as a surety, to each Holder absolutely, unconditionally and irrevocably guarantees, subject to the Trustee and its successors and assigns (i) First Lien/Second Lien/Third Lien Intercreditor Agreements, the full and punctual prompt payment when due, whether at Stated Maturity, by acceleration, by redemption upon acceleration or otherwise, of and at all obligations times thereafter, all Obligations of the Company under this Second Lien Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, whether for payment New Second Lien Secured Notes and all reasonable fees and documented costs and expenses incurred by the Second Lien Trustees and the Collateral Agent in endeavoring to collect all of principal of, premium, if anyany part of the Obligations from, or interest (including in prosecuting any interest, fees, costs action against the Company 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 Notes held by Subsidiary Guarantor to the Holders, all other monetary obligations of the Company under this Indenture Second Lien Trustees 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 Collateral Agent (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents such Obligations guaranteed by such Subsidiary Guarantors being hereinafter collectively herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, renewed in whole or in part, part without notice to or further assent from each such Guarantorit, and that each such Guarantor shall remain it remains bound under this Article 10 upon its guarantee notwithstanding any such extension or renewal of any Guaranteed Obligationrenewal.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the 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 New Second Lien Secured 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 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 Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder, the Trustee or Collateral Agent Holder to any security held for payment of the Guaranteed Obligations.
(ed) Except as expressly set forth in Sections 8.01 Section 4.09. Section 10.02 and 10.02Article VIII, the obligations of each Subsidiary Guarantor hereunder shall will not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall 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 shall will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder, Holder or the Trustee or Collateral Agent Second Lien Trustees to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Second Lien Indenture, the New Second Lien Secured Notes or any other agreementagreement or otherwise; (ii) any extension or renewal of any thereof; (iii) any rescission, by any waiver waiver, amendment or modification of any thereofof the terms or provisions of this Second Lien Indenture, the New Second Lien Secured Notes, the Security Agreements or any other Second Lien Documents; (iv) the release of any security held by any Holder, any Second Lien Trustee or the Collateral Agent for the Guaranteed Obligations or any of them; (v) the failure of any Holder, the Second Lien Trustees or the Collateral Agent to exercise any right or remedy against any other Subsidiary Guarantor; (vi) any change in the ownership of the Company; (vii) any default, failure or delay, willful or otherwise, in the performance of the obligations, Guaranteed Obligations; or by (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 any such Subsidiary Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 and 10.02, each Each Subsidiary Guarantor agrees that its Subsidiary Guarantee shall herein will remain in full force and effect until payment in full of all the Guaranteed ObligationsObligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.09, Section 10.02 and Article VIII. Except as set forth in Sections 8.01 and 10.02, each Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein shall 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 of, premium, if any, or interest on any of the Guaranteed Obligation Obligations is rescinded or must otherwise be restored by any Holder, the Trustee Second Lien Trustees or the Collateral Agent upon the bankruptcy or reorganization of the Company or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, any of the Trustee Second Lien Trustees or the Collateral Agent has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay any of the principal of or interest on any Guaranteed Obligation Obligations when and as the same shall will 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 shallwill, upon receipt of written demand by the TrusteeSecond Lien Trustees, forthwith pay, or cause to be paid, in cash, to the Holders, applicable Second Lien Trustee on behalf of the Trustee or Collateral Agent Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, 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 applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company to the Holders, the Trustee and Collateral Agent or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in respect of the Guaranteed Obligationssuch proceeding).
(hg) Each 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 Subsidiary Guarantor further agrees that, as between itsuch Subsidiary Guarantor, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby by this Guarantee may be accelerated as provided in Article 6 this Second Lien Indenture for the purposes of any its Subsidiary Guarantee hereinin this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article 6Obligations, such Guaranteed Obligations (whether or not due and payable) shall will forthwith become due and payable by such the Subsidiary Guarantor for the purposes of this Section 10.01Subsidiary Guarantee.
(i) Each Guarantor also agrees to pay any and all fees and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Sources: Second Lien Indenture (Bed Bath & Beyond Canada L.P.)
Guarantees. (a) Each Guarantor hereby that guarantees the Notes pursuant to this Indenture, jointly and severally, irrevocably and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor and not merely as a surety, to each Holder and to the Trustee and its their successors and assigns (i) the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by redemption acceleration or otherwise, of all obligations of the Company Issuer under this Indenture (including obligations to the Trustee and Collateral AgentTrustee) and the Notes, 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 Notes held by the Holders, and all other monetary obligations of the Company Issuer 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 Issuer whether for fees, expenses, indemnification or otherwise under this Indenture, the Notes Indenture and the Security Documents Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default 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 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 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, Holder or the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(ed) Except as expressly set forth in Sections 8.01 and Section 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 Subject to Section 10.02 and 10.02Section 10.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, each 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 paymentpayment of, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, Holder or the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company Issuer or any of its Subsidiaries or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, Holder or the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuer to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company Issuer to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed ObligationsTrustee.
(hg) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders Trustee in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between it, on the one hand, and the Holders, the Trustee and Collateral AgentTrustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 VI for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(ih) Each Guarantor also agrees to pay any and all fees fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent Trustee or any Holder in enforcing any rights under this Section 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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Guarantees. (a) Each Guarantor hereby of the Company’s Subsidiary Guarantors, jointly and severally, irrevocably and unconditionally guarantees on a senior secured basisand, as a primary obligor and not merely as a surety, to each Holder absolutely, unconditionally and irrevocably guarantees, subject to the Trustee and its successors and assigns (i) First Lien/Second Lien/Third Lien Intercreditor Agreements, the full and punctual prompt payment when due, whether at Stated Maturity, by acceleration, by redemption upon acceleration or otherwise, of and at all obligations times thereafter, all Obligations of the Company under this Third Lien Indenture (including obligations to and the New Third Lien Secured Notes and all reasonable fees and documented costs and expenses incurred by the Third Lien Trustee and the Collateral Agent) and Agent in endeavoring to collect all of any part of the Notes, whether for payment of principal of, premium, if anyObligations from, or interest (including in prosecuting any interest, fees, costs action against the Company 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 Notes held by Subsidiary Guarantor to the Holders, all other monetary obligations of the Company under this Indenture Third Lien Trustee 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 Collateral Agent (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents such Obligations guaranteed by such Subsidiary Guarantors being hereinafter collectively herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, renewed in whole or in part, part without notice to or further assent from each such Guarantorit, and that each such Guarantor shall remain it remains bound under this Article 10 upon its guarantee notwithstanding any such extension or renewal of any Guaranteed Obligationrenewal.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the 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 New Third Lien Secured 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 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 Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder, the Trustee or Collateral Agent Holder to any security held for payment of the Guaranteed Obligations.
(ed) Except as expressly set forth in Sections 8.01 Section 4.09. Section 10.02 and 10.02Article VIII, the obligations of each Subsidiary Guarantor hereunder shall will not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall 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 shall will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder, Holder or the Third Lien 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 Third Lien Indenture, the New Third Lien Secured Notes or any other agreementagreement or otherwise; (ii) any extension or renewal of any thereof; (iii) any rescission, by any waiver waiver, amendment or modification of any thereofof the terms or provisions of this Third Lien Indenture, the New Third Lien Secured Notes, the Third Lien Security Agreements or any other Third Lien Documents; (iv) the release of any security held by any Holder, any Third Lien Trustee or the Collateral Agent for the Guaranteed Obligations or any of them; (v) the failure of any Holder, the Third Lien Trustee or the Collateral Agent to exercise any right or remedy against any other Subsidiary Guarantor; (vi) any change in the ownership of the Company; (vii) any default, failure or delay, willful or otherwise, in the performance of the obligations, Guaranteed Obligations; or by (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 any such Subsidiary Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 and 10.02, each Each Subsidiary Guarantor agrees that its Subsidiary Guarantee shall herein will remain in full force and effect until payment in full of all the Guaranteed ObligationsObligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.09, Section 10.02 and Article VIII. Except as set forth in Sections 8.01 and 10.02, each Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein shall 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 of, premium, if any, or interest on any of the Guaranteed Obligation Obligations is rescinded or must otherwise be restored by any Holder, the Third Lien Trustee or the Collateral Agent upon the bankruptcy or reorganization of the Company or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Third Lien Trustee or the Collateral Agent has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay any of the principal of or interest on any Guaranteed Obligation Obligations when and as the same shall will 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 shallwill, upon receipt of written demand by the Third Lien Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, Third Lien Trustee on behalf of the Trustee or Collateral Agent Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, 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 applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company to the Holders, the Trustee and Collateral Agent or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in respect of the Guaranteed Obligationssuch proceeding).
(hg) Each 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 Subsidiary Guarantor further agrees that, as between itsuch Subsidiary Guarantor, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby by this Guarantee may be accelerated as provided in Article 6 this Third Lien Indenture for the purposes of any its Subsidiary Guarantee hereinin this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article 6Obligations, such Guaranteed Obligations (whether or not due and payable) shall will forthwith become due and payable by such the Subsidiary Guarantor for the purposes of this Section 10.01Subsidiary Guarantee.
(i) Each Guarantor also agrees to pay any and all fees and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Sources: Third Lien Indenture (Bed Bath & Beyond Canada L.P.)
Guarantees. (a) Each On and after the Issue Date, each Guarantor hereby jointly and severally, irrevocably and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor and not merely as a suretysurety on a senior basis, to each Holder and to the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Company Issuer under this Indenture (including obligations to the Trustee and Collateral AgentTrustee) and the Notes, 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 on in respect of (x) the Bankruptcy Code after any bankruptcy or insolvency petition under the Bankruptcy Code and (y) any other debtor relief laws) on the Notes held by the Holders, and all other monetary obligations of the Company Issuer 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 Issuer whether for fees, expenses, indemnification or otherwise under this Indenture, Indenture and the Notes and the Security Documents (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. The Guaranteed Obligations of a Guarantor will 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 4.12 and 4.14.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives 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 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed Obligations.
(h) Each 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 it, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) Each Guarantor also agrees to pay any and all fees and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.Guaranteed
Appears in 1 contract
Guarantees. (a) Each Guarantor hereby jointly and severally, irrevocably and unconditionally guarantees on a senior secured basis, as a primary obligor and not merely as a surety, to each Holder and to the Trustee and its their successors and assigns (i) the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by redemption acceleration or otherwise, of all obligations of the Company Issuer under this Indenture (including obligations to the Trustee and Collateral AgentTrustee) and the Notes, whether for payment of principal of, premium, if any, or interest (including any intereston, feesif any, 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 Notes held by the Holders, and all other monetary obligations of the Company Issuer 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 Issuer whether for fees, expenses, indemnification or otherwise under this Indenture, the Notes Indenture and the Security Documents Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 Ten notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives 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 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 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, Holder or the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(ed) Except as expressly set forth in Sections 8.01 8.01(b), 10.02, 10.03 and 10.0210.06, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 Subject to Section 10.02 and 10.0210.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, each 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, Holder or the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, Holder or the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuer to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee (or Collateral Agent its designee) an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company Issuer to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed ObligationsTrustee.
(hg) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders Trustee in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between it, on the one hand, and the Holders, the Trustee and Collateral AgentTrustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 Six for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6Six, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(ih) Each Guarantor also agrees to pay any and all fees costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent Trustee or any Holder in enforcing any rights under this Section 10.01.
(j) Upon request of the Trustee, each . 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.
(k) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Sources: Indenture (Kronos Worldwide Inc)
Guarantees. (a) Each Guarantor hereby jointly and severally, irrevocably and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor and not merely as a suretysurety on a senior basis, to each Holder and to the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and the Notes Collateral Agent) under this Indenture, the Notes, the Security Documents and the NotesIntercreditor Agreement, 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 Notes held by the Holders, and all other monetary obligations of the Company under this Indenture Indenture, the Notes, the Security Documents and the Notes and all other Second Lien Obligations Intercreditor Agreement 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 Notes, the Security Documents and the Intercreditor Agreement (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. The Guaranteed Obligations of a Guarantor will 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 4.12 and 4.15.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives 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 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 Notes, any Security Document, or any other agreement or otherwise; (ii) any extension or renewal of this Indenture, the Notes 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 Notes, any Security Document or any other agreement; (iv) the release of any security, if any, security held by any Holder, the Trustee or the Notes Collateral Agent for the Guaranteed Obligations or any Guarantor; (v) the failure of any Holder, Trustee or the Notes 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 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 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 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, the Trustee or the Notes Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 8.01, 10.02 and 10.0210.06, 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, the Trustee or the Notes Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes Notes, any Security Document or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(f) Except as expressly set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as expressly set forth in Sections 8.01 and 10.02, 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, Holder or the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder, Holder or the Trustee or Notes Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, 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 Notes Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company then due to the Holders, the Trustee and the Notes Collateral Agent in respect of the Guaranteed Obligations.
(h) Each 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 it, on the one hand, and the Holders, the Trustee and the Notes Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) Each Guarantor also agrees to pay any and all fees costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Notes Collateral Agent or any Holder in enforcing any rights under this Section 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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Sources: Indenture (Metals USA Plates & Shapes Southcentral, Inc.)
Guarantees. (a) Each Guarantor hereby jointly and severally, irrevocably and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor and not merely as a surety, to each Holder and to the Trustee Purchaser and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee due and Collateral Agent) and the Notes, 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 Notes 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 Secured Obligations (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 Section 11 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default Event of Default under this Agreement or the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (i) the failure of any Holder, Purchaser or the Trustee or Collateral Designated Agent to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this IndentureAgreement, the Notes Note Documents or any other agreement or otherwise; (ii) any extension or renewal of this Indenture, the Notes or any other agreementthereof; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this IndentureAgreement, the Notes or any other agreement; (iv) the release of any security, if any, security held by any Holder, Purchaser or the Trustee or Collateral Designated Agent for the Guaranteed Obligations or any Guarantorof them; (v) the failure of any Holder, Trustee Purchaser or Collateral the Designated 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 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 Guarantee 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, Purchaser or the Trustee or Collateral Designated Agent to any security held for payment of the Guaranteed Obligations.
(ed) Except as expressly set forth in Sections 8.01 and 10.02this Section 11, 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 otherwiseotherwise (other than the defense of payment in full of the Secured Obligations, other than unasserted contingent obligations). 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, Purchaser or the Trustee or Collateral Designated Agent to assert any claim or demand or to enforce any remedy under this IndentureAgreement, the Notes Note Documents or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 and 10.02otherwise provided herein, each Guarantor agrees that its Guarantee guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations, other than unasserted contingent obligations. Except as set forth in Sections 8.01 and 10.02, each Each Guarantor further agrees that its Guarantee 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, Purchaser or the Trustee or Collateral Designated Agent upon the bankruptcy or reorganization of the Company or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, Purchaser or the Trustee or Collateral Designated Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the TrusteeDesignated Agent, forthwith pay, or cause to be paid, in cash, to the Holders, Purchasers or the Trustee or Collateral Designated Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations required under the Note Documents (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders, Purchasers and the Trustee and Collateral Designated Agent in respect of required under the Guaranteed ObligationsNote Documents.
(hg) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders Purchasers in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations, other than unasserted contingent obligations. Each Guarantor further agrees that, as between it, on the one hand, and the Holders, Purchasers and the Trustee and Collateral Designated Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 Section 9 for the purposes of any Guarantee guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6Section 9 of this Agreement, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.0111.1.
(ih) Each Guarantor also agrees to pay any and all fees costs and expenses (including reasonable attorneys’ documented attorney’s fees and expenses) incurred by the Trustee, the Collateral Designated Agent or any Holder Purchaser in enforcing any rights under this Section 10.0111.1.
(ji) Upon request of the TrusteeDesignated Agent, 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 IndentureAgreement.
(k) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Sources: Securities Purchase and Security Agreement (Evofem Biosciences, Inc.)
Guarantees. (a) Each Guarantor hereby jointly and severally, irrevocably and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor and not merely as a surety, to each Holder and to the Trustee and its their successors and assigns (i) the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by if applicable, redemption or otherwise, of all obligations of the Company Issuers under this Indenture (including obligations to the Trustee and Collateral AgentTrustee) and the Notes, whether for payment of principal of, premium, if any, or interest (including any intereston, feesif any, 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 Notes held by the Holders, and all other monetary obligations of the Company Issuers under this Indenture and the Notes and all other Second Lien Obligations (subject in the case of interest, to any right the Issuer may have to forgo or defer the payment thereof as contemplated by Section 2.02) and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuer whether for fees, expenses, indemnification or otherwise under this Indenture, the Notes Indenture and the Security Documents Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default 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 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 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, Holder or the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(ed) Except as expressly set forth in Sections 8.01 and Section 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 and Subject to Section 10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, each 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 paymentpayment of, or any part thereof, of principal of of, or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, Holder or the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company Issuer or otherwiseany of its Subsidiaries or otherwise (subject in the case of interest, to any right the Issuer may have to forgo or defer the payment thereof as contemplated by Section 2.02).
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, Holder or the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuer to pay the principal of of, or interest on (subject to any right the Issuer may have to forgo or defer the payment of interest as contemplated by Section 2.02), any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by if applicable, redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) if applicable, accrued and unpaid interest (including, if applicable, deferred interest) on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company Issuers to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed ObligationsTrustee.
(hg) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders Trustee in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Subject to the inapplicability of Sections 6.01 and 6.02 as contemplated by Section 2.02, each Guarantor further agrees that, as between it, on the one hand, and the Holders, the Trustee and Collateral AgentTrustee, on the other hand, if applicable, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 VI for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(ih) Each Guarantor also agrees to pay any and all fees fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent Trustee or any Holder in enforcing any rights under this Section 10.01.
(ji) Upon request of the Trustee, each 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.
(k) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Guarantees. (a) Each Guarantor hereby jointly and severally, irrevocably and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor and not merely as a suretysurety on a senior basis, to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee Trustee, the Collateral Agent and its their respective successors and assigns (i) the full and punctual payment when due, subject to applicable grace periods, whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and the Collateral Agent) under this Indenture, the Notes and the NotesNotes Security Documents, 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 Notes held by the Holders, and all other monetary obligations of the Company under this Indenture Indenture, the Notes and the Notes and all other Second Lien Obligations Security Documents, 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 Notes Security Documents (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the The Guaranteed Obligations may of a Guarantor will be extended or renewed, secured by security interests in whole or in part, without notice or further assent from each such Guarantor, and that each the Collateral owned by such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligationto the extent provided for in the Notes Security Documents and as required pursuant to Sections 4.13 and 4.18.
(b) Each Guarantor Guarantor, to the extent permitted by law, waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives 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 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, any Notes Security Document or any other agreement or otherwise; (ii) any extension or renewal of this Indenture, the Notes, any Notes 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 Notes Security Document or any other agreement; (iv) the release of any security, if 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, 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(b12.02(b).
(c) Each Subject to Section 12.02(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 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 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, the Trustee or the Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02Article 12, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(f) Except as expressly set forth in Sections 8.01 and 10.02Article 12, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as expressly set forth in Sections 8.01 and 10.02Article 12, 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, Holder or the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder, Holder or the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, 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 Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company then due to the Holders, the Trustee and the Collateral Agent in respect of the Guaranteed Obligations.
(h) Each 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 it, 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 hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.0112.01. The Guarantors shall 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 under any Guarantee.
(i) Each Guarantor also agrees to pay any and all fees costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 10.0112.01.
(j) The Guarantee set forth in this Article 12 shall not be valid or become obligatory for any purpose with respect to a Note until such Note has been duly authenticated pursuant to this Indenture.
(k) 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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Guarantees. (a) Each Guarantor hereby jointly and severally, irrevocably and unconditionally guarantees on a senior secured basis (except for Holdings, whose Guarantee shall be on a senior unsecured basis), as a primary obligor and not merely as a surety, to each Holder and to the Trustee and its their successors and assigns (i) the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by redemption acceleration or otherwise, of all obligations of the Company Issuer under this Indenture (including obligations to the Trustee and Collateral AgentTrustee) and the NotesSecurities, whether for payment of principal of, premium, if any, or interest (including any intereston, feesif any, 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 Securities and (y) any other debtor relief laws) on the Notes held by the Holders, all other monetary obligations of the Company Issuer under this Indenture and the Notes and all other Second Lien Obligations Securities and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuer whether for fees, expenses, indemnification or otherwise under this Indenture, the Notes Indenture and the Security Documents Securities, on the terms set forth in this Indenture by executing this Indenture (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives 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 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 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 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, Holder or the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(ed) Except as expressly set forth in Sections 8.01 8.01(b), 10.02 and 10.0210.06 hereof, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 and 10.02Subject to Section 10.02 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, each 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, Holder or the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, Holder or the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuer to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company Issuer to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed ObligationsTrustee.
(hg) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders Trustee in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between it, on the one hand, and the Holders, the Trustee and Collateral AgentTrustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(ih) Each Guarantor also agrees to pay any and all fees costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent Trustee or any Holder in enforcing any rights under this Section 10.01.
(j) Upon request of the Trustee, each . 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.
(k) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Sources: Indenture (PQ Group Holdings Inc.)
Guarantees. (a) Each Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder and Holder, to the Trustee extent lawful, and its successors and assigns (i) the Trustee, the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, whether for payment of principal of, premium, if any, or and 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 Notes held by the Holders, and all other monetary obligations Obligations of the Company Issuer under this Indenture and the Notes and all other Second Lien Obligations and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuer or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture, the Notes post-petition interest is allowed in such proceeding and the Security Documents obligations under Section 7.6) (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further 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 each such Guarantorit, and that each such Guarantor it shall remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Guarantor Obligations. The .
(c) Each Guarantor further agrees that its 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 Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (ia) the failure of any Holder, the Trustee or Collateral Agent Holder to assert any claim or demand or to enforce any right or remedy against the Company Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (iib) any extension or renewal of this Indenture, the Notes or any other agreementthereof; (iiic) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (ivd) the release of any security, if any, security held by any Holder, the Trustee or Collateral Agent Holder for the Guaranteed Guarantor Obligations or any Guarantorof them; (ve) the failure of any Holder, Trustee or Collateral Agent Holder to exercise any right or remedy against any other guarantor of the Guaranteed ObligationsGuarantor; or (vif) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
the Issuer; (cg) 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 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, Guarantor Obligations; or by (h) 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 Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 and 10.02, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Except as set forth in Sections 8.01 and 10.02, each 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 of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent Holder upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, Trustee or the Trustee or Collateral Agent on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, 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 applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the Holders, the Trustee and Collateral Agent Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in respect of the Guaranteed Obligationssuch proceeding).
(hg) Each 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 itsuch Guarantor, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article 6 this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article 6Guarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(ih) Each Guarantor also agrees to pay any and all fees reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee, Trustee or the Collateral Agent or any Holder Holders in enforcing any rights under this Section 10.01Section.
(ji) Upon request of Neither the TrusteeIssuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, each Guarantor termination or discharge thereof and any such notation shall execute and deliver such further instruments and do such further acts as may not be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
(k) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice a condition to the Trustee from such direct or indirect parent validity of the Companyany Guarantee.
Appears in 1 contract
Guarantees. 20.1 Guarantee by the Initial Guarantors
20.1.1 The Initial Guarantors guarantee to the Bank, jointly and severally among themselves and with the Borrower, the fulfilment of each and all of the Borrower’s obligations hereunder, on the same terms and conditions as the Borrower, expressly waiving the benefits of division, priority and discussion, until all the Borrower’s obligations hereunder and thus guaranteed have been fully cancelled.
20.1.2 The Bank accepts the guarantee made in Clause 20.1.1 above.
20.1.3 The guarantee made in Clause 20.1.1 above shall be subject to the following:
(a) Each Guarantor hereby jointly The Initial Guarantors accept the form of debt settlement established in Clause 21 and severally, irrevocably and unconditionally guarantees on a senior secured basis, as a primary obligor and not merely as a surety, to each Holder and the submission to the Trustee and its successors and assigns (i) the full and punctual payment when duejurisdiction established in Clause 26, whether at Stated Maturity, by acceleration, by redemption or otherwise, with express waiver of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, 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 Notes 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 jurisdiction. Their address for fees, expenses, indemnification or otherwise under this Indenture, the Notes and the Security Documents (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligationnotices hereunder is as per Clause 22.
(b) Each Guarantor waives presentation toThe Initial Guarantors accept, demand without reservation and waiving as appropriate the rights established in sections 1839 and 1212 of payment from the Civil Code, that any part payments made in fulfilment of their obligation as guarantors shall not entitle them to any subrogation against the Borrower in the payments of the Bank until such time as the Bank shall have received full repayment of the Facility and protest unless the Initial Guarantors establish sureties or take other measures guaranteeing to the Company of any satisfaction of the Guaranteed Obligations and also waives notice Bank the priority corresponding to the Bank under section 1213 of protest for nonpayment. Each Guarantor waives notice of the Civil Code to collect 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 remaining credit it may hold 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)Borrower.
(c) Each Guarantor The Initial Guarantors hereby waives agree to all effects and purposes to any right periods of grace or facilities granted to which it the Borrower and any modification of the terms and conditions of this Facility that may be entitled to have its obligations hereunder divided among agreed between the GuarantorsBank and the Borrower in the future, such that such Guarantor’s obligations would be less than provided they do not increase 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 Facility or 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 Guarantorinterest rate applicable thereto.
(d) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee The rules on payments and their application established in Clause 13 shall be applicable to all payments made by the Initial Guarantors in fulfilment 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligationsthis guarantee.
(e) Except as expressly set forth The assignment of the credit rights or subrogation in Sections 8.01 and 10.02, the obligations contractual position of each Guarantor hereunder the Bank (and/or its legitimate assignees) contemplated in Clause 24 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 detract from or otherwise affected by howsoever adversely affect the failure validity and effectiveness of any Holderthis guarantee, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect effect.
(f) This guarantee shall be deemed to remain in force until the Bank has received full payment in full of all sums that it is entitled to receive from the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02Borrower under this Facility, each Guarantor further agrees that even after 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company or otherwisefinal maturity.
(g) In furtherance of The Bank may enforce the foregoing and not guarantee made in limitation of any other right which any Holder, the Trustee or Collateral Agent has at law or this Clause in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and such order as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent it may deem fit in respect of the Guaranteed Obligationsother guarantees furnished or promised hereunder.
(h) Each 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 it, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) Each Guarantor also agrees to pay any and all fees and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Sources: Credit Facility Agreement (Ebro Puleva Partners G.P.)
Guarantees. (a) Each On and after the Acquisition Date, each Guarantor hereby jointly and severally, irrevocably and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor and not merely as a suretysurety on a senior basis, to each Holder and to the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Company Issuers under this Indenture (including obligations to the Trustee and Collateral AgentTrustee) and the Notes, 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 on in respect of (x) the Bankruptcy Code after any bankruptcy or insolvency petition under the Bankruptcy Code and (y) any other debtor relief laws) on the Notes held by the Holders, and all other monetary obligations of the Company Issuers 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 Issuers whether for fees, expenses, indemnification or otherwise under this Indenture, Indenture and the Notes and the Security Documents (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. The Guaranteed Obligations of a Guarantor will 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 4.12 and 4.15.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuers of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives 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, Holder or the Trustee or Collateral Agent to assert any claim or demand or to enforce any right or remedy against the Company Issuers 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 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 Notes, any Security Document or any other agreement; (iv) the release of any security, if any, security held by any Holder, Holder or the Trustee or Collateral Agent for the Guaranteed Obligations or any Guarantor; (v) the failure of any Holder, Holder or 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 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 Issuers or any other Guarantor first be used and depleted as payment of the Company’s Issuers’ 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 Issuers be sued prior to an action being initiated against such Guarantor.
(d) 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, Holder or the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 8.01(b), 10.02 and 10.0210.06, 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, Holder or the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes Notes, any Security Document or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02, each Each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, each 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, Holder or the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company Issuers or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder, Holder or the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuers to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, Holders or the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company Issuers to the Holders, Holders and the Trustee and Collateral Agent in respect of the Guaranteed ObligationsTrustee.
(h) Each 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 it, on the one hand, and the Holders, Holders and the Trustee and Collateral AgentTrustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) Each Guarantor also agrees to pay any and all fees costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent Trustee or any Holder in enforcing any rights under this Section 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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Sources: Indenture (Borden Chemical Inc)
Guarantees. (a) Each Guarantor hereby irrevocably and unconditionally guarantees, jointly and severally, irrevocably to Lender and unconditionally guarantees on a senior secured basis, as a primary obligor the Collateral Agent and not merely as a surety, to each Holder and to the Trustee and its their respective successors and assigns (i) the full and punctual payment of all Obligations under this Agreement, the Loan Documents and the Notes, including, without limitation, principal of, premium, if any, and interest on the Company Notes when due, whether at Stated Maturity, by acceleration, by redemption acceleration or otherwise, of and all other obligations of the Company under this Indenture (including obligations Agreement and the Company Notes and the Company and each Guarantor hereby irrevocably and unconditionally guarantees, jointly and severally, to the Trustee Lender and the Collateral Agent) Agent and their respective successors and assigns the full and punctual payment of all Obligations under this Agreement, the Loan Documents and the Notes, whether for payment of including, without limitation, principal of, premium, if any, or and 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 MSXI Limited Notes held when due, whether at Stated Maturity, by the Holdersacceleration or otherwise, 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 MXSI Limited under this Indenture, the Notes Agreement and the Security Documents MSXI Limited Notes (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “"Guaranteed Obligations”"). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, Guarantor and that each such Guarantor shall will remain bound under this Article 10 8 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of of, payment from and protest to the Company and MSXI Limited of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (ia) the failure of any Holder, the Trustee Lender or the Collateral Agent to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this IndentureAgreement, the Notes or any other agreement or otherwise; (iib) any extension or renewal of this Indenture, the Notes or any other agreementthereof; (iiic) any rescission, waiver, amendment or modification of any of the terms or provisions of this IndentureAgreement, the Notes or any other agreement; (ivd) the release of any security, if any, security held by any Holder, the Trustee or Collateral Agent Lender for the Guaranteed Obligations or any Guarantorof them; (ve) the failure of any Holder, Trustee the Lender or the Collateral Agent to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (vif) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
(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. 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 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, the Trustee or Collateral Agent Lender to any security held for payment of the Guaranteed Obligations.
(ed) Except as expressly set forth in Sections 8.01 Section 8.2 and 10.028.6, 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, the Trustee Lender or the Collateral Agent to assert any claim or demand or to enforce any remedy under this IndentureAgreement, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligationsGuaranteed Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any such Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, each Each Guarantor further agrees that its Subsidiary 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 of, premium, if any, or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, the Trustee Lender or the Collateral Agent upon the bankruptcy or reorganization of the Company or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee Lender or the Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of of, premium, if any, or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shallwill, upon receipt of written demand by the TrusteeLender, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent Lender an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations Guaranteed Obligations of the Company to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed ObligationsLender.
(hg) Each 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 it, on the one hand, and the Holders, the Trustee and Collateral AgentLender, on the other hand, (ix) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 7 for the purposes of any such Guarantor's Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (iiy) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 67, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.018.1.
(ih) Each Guarantor also agrees to pay any and all fees costs and expenses (including reasonable attorneys’ fees and expenses' fees) incurred by the Trustee, the Collateral Agent or any Holder Lender in enforcing any rights under this Section 10.018.1.
(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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Sources: Third Secured Term Loan Agreement (MSX International Inc)
Guarantees. (a) Each On and after the Issue Date (following the Issuers’ Assumption), each Guarantor hereby jointly and severally, irrevocably and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor and not merely as a suretysurety on a senior basis, to each Holder and to the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Company Issuers under this Indenture (including obligations to the Trustee and Collateral AgentTrustee) and the Notes, 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 on in respect of (x) the Bankruptcy Code after any bankruptcy or insolvency petition under the Bankruptcy Code and (y) any other debtor relief laws) on the Notes held by the Holders, and all other monetary obligations of the Company Issuers 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 Issuers whether for fees, expenses, indemnification or otherwise under this Indenture, Indenture and the Notes and the Security Documents (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. The Guaranteed Obligations of a Guarantor will 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 4.12 and 4.15.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuers of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives 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 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed Obligations.
(h) Each 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 it, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) Each Guarantor also agrees to pay any and all fees and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.Guaranteed
Appears in 1 contract
Guarantees. (ai) Each Guarantor hereby jointly and severallyHoldings, irrevocably and unconditionally guarantees on a senior secured basisunsecured basis (the “Holdings Guarantee”), as a primary obligor hereby fully and not merely as a suretyunconditionally guarantees, to each Holder and to the Trustee and its successors and assigns assignees (ix) the full and punctual payment of principal of and interest on the Securities when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, 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 Notes held by the Holders, all other monetary obligations of the Company under this Indenture and with respect to the Notes and all other Second Lien Obligations Securities and (iiy) 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 IndentureIndenture with respect to the Securities and (ii) each Limited Guarantor in a Collateral Rig Guarantor Family, on a senior secured basis, hereby severally in respect of each other Collateral Rig Guarantor Family (but jointly and severally among the entities within such Collateral Rig Guarantor Family) guarantees up to the applicable Secured Limited Guarantee Cap outstanding immediately prior to the refinancing of the Existing Secured Notes (the “Secured Limited Guarantees,” and the Security Documents (all the foregoingtogether with Holdings Guarantee, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents being hereinafter collectively called the “Guaranteed Obligations”)) (x) the full and punctual payment of principal of and interest on the Securities when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company under this Indenture with respect to the Securities and (y) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture with respect to the Securities, in each case subject to the Secured Limited Guarantee Cap. Each Guarantor of Securities further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, Guarantor and that each such Guarantor shall will remain bound under this Article 10 11 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) obligation. Each Guarantor of Securities waives presentation to, demand of of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor of Securities waives notice of any default under the Notes Securities or the Guaranteed Obligations. The obligations of each Guarantor hereunder of Securities shall not be affected by (i1) the failure of any Holder, Holder or 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 (including any Guarantor) under this Indenture, Indenture with respect to the Notes Securities or any other agreement or otherwise; (ii2) any extension or renewal of this Indenture, the Notes or any other agreementthereof; (iii3) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, Indenture with respect to the Notes Securities or any other agreement; (iv4) the release of any security, if any, security held by any Holder, Holder or the Trustee or Collateral Agent for the Guaranteed Obligations or any Guarantorof them; (v5) the failure of any Holder, Holder or the Trustee or Collateral Agent to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (vi6) except as set forth in Section 11.06, any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
(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. 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 Securities further agrees that its Securities Guarantee herein constitutes a guarantee of paymentpayment (subject to the Secured Limited Guarantee Cap, if applicable), 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, Holder or the Trustee or Collateral Agent to any security Security held for payment of the Guaranteed Obligations.
(e) . Except as expressly set forth in Sections 8.01 9.01, 11.02 and 10.0211.06 and subject to the Secured Limited Guarantee Cap, if applicable, the obligations of each Guarantor of Securities 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 of Securities herein shall not be discharged or impaired or otherwise affected by the failure of any Holder, Holder or the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, Indenture with respect to the Notes Securities or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any such Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02, each . Each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, each Guarantor Securities further agrees that its Securities 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 or interest on any Guaranteed Obligation obligation is rescinded or must otherwise be restored by any Holder, Holder or the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company or otherwise.
(g) . In furtherance of the foregoing and not in limitation of any other right which any Holder, Holder of Securities or the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, Holders or the Trustee or Collateral Agent an amount equal to the sum of (iA) the unpaid principal amount of such Guaranteed Obligations, (iiB) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iiiC) all other monetary obligations Guaranteed Obligations of the Company to the Holders, Holders and the Trustee and Collateral Agent in respect of the Guaranteed Obligations.
(h) Each 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 ObligationsTrustee. Each Guarantor further of Securities agrees that, as between it, on the one hand, and the Holders, Holders and the Trustee and Collateral AgentTrustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any such Guarantor’s Securities Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) 11.01. Each Guarantor of Securities also agrees to pay any and all fees costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee, the Collateral Agent Trustee or any Holder in enforcing any rights under this Section 10.0111.01.
(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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Sources: Indenture (Transocean Ltd.)
Guarantees. (a) Each Guarantor hereby jointly and severally, irrevocably and unconditionally guarantees on a senior secured basis, as a primary obligor and not merely as a surety, to each Holder and to the Trustee and its their successors and assigns (i) the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by redemption acceleration or otherwise, of all obligations of the Company Issuer under this Indenture (including obligations to the Trustee and Collateral AgentTrustee) and the Notes, whether for payment of principal of, premium, if any, or interest (including any intereston, feesif any, 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 Notes held by the Holders, and all other monetary obligations of the Company Issuer 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 Issuer whether for fees, expenses, indemnification or otherwise under this Indenture, the Notes Indenture and the Security Documents Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 Ten notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives 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 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 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, Holder or the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(ed) Except as expressly set forth in Sections 8.01 8.01(b), 10.02, 10.03 and 10.0210.06, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 Subject to Section 10.02 and 10.0210.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, each 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, Holder or the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, Holder or the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuer to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee (or Collateral Agent its designee) an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company Issuer to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed ObligationsTrustee.
(hg) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders Trustee in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between it, on the one hand, and the Holders, the Trustee and Collateral AgentTrustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 Six for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6Six, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(ih) Each Guarantor also agrees to pay any and all fees costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent Trustee or any Holder in enforcing any rights under this Section 10.01.
(j) Upon request of the Trustee, each . 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.
(k) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Guarantees. (a) Each Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder and Holder, to the Trustee extent lawful, and its successors and assigns (i) the Trustee, the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, whether for payment of principal ofprincipal, premium, if any, or and 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 Notes held by the Holders, and all other monetary obligations Obligations of the Company Issuer under this Indenture and the Notes and all other Second Lien Obligations and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuer or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture, the Notes post-petition interest is allowed in such proceeding and the Security Documents obligations under Section 7.6) (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further 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 each such Guarantorit, and that each such Guarantor it shall remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Guarantor 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 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 Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder, the Trustee or Collateral Agent Holder to any security held for payment of the Guaranteed Guarantor Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed Obligations.
(h) Each 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 it, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) Each Guarantor also agrees to pay any and all fees and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Guarantees. (a) Each Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder and Holder, to the extent lawful, the Trustee and its successors and assigns (i) the Agent the full and punctual payment and performance when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, whether for payment of principal of, premium, if any, or and 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 Notes held by the Holders, and all other monetary obligations Obligations of the Company Issuers under this Indenture and the Notes and all other Second Lien Obligations and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuers or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture, the Notes post-petition interest is allowed in such proceeding and the Security Documents obligations under Section 7.6) (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further 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 each such Guarantorit, and that each such Guarantor it shall remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuers of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Guarantor Obligations. The .
(c) Each Guarantor further agrees that its 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 Guarantor Obligations.
(d) Except as set forth in this Article X, Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of set-off, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (ia) the failure of any Holder, the Trustee or Collateral Agent Holder to assert any claim or demand or to enforce any right or remedy against the Company Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (iib) any extension or renewal of this Indenture, the Notes or any other agreementthereof; (iiic) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (ivd) the release of any security, if any, security held by any Holder, the Trustee or Collateral Agent Holder for the Guaranteed Guarantor Obligations or any Guarantorof them; (ve) the failure of any Holder, Trustee or Collateral Agent Holder to exercise any right or remedy against any other guarantor of the Guaranteed ObligationsGuarantor; or (vif) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
(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. 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 Issuers 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent 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 Guarantor; (g) any default, failure or delay, willful or otherwise, in the performance of the obligations, Guarantor Obligations; or by (h) 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 Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 and 10.02, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 or Article VIII. Except as set forth in Sections 8.01 and 10.02, each 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 of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent Holder upon the bankruptcy or reorganization of the Company Issuers or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuers to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the HoldersTrustee, the Agents or the Trustee or Collateral Agent on behalf of the Holders and such Agents an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, 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 applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the Holders, the Trustee and Collateral Agent Issuers or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in respect of the Guaranteed Obligationssuch proceeding).
(hg) Each 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 itsuch Guarantor, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article 6 this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article 6Guarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(ih) Each Guarantor also agrees to pay any and all fees reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee, the Collateral Agent or any Holder the Holders in enforcing any rights under this Section 10.01Section.
(i) Each Guarantor acknowledges and agrees that the Guarantee of such Guarantor will be a general senior obligation of such Guarantor and will rank senior in right of payment to all future obligations of such Guarantor that are, by their terms, expressly subordinated in right of payment to such Guarantee and equal in right of payment with all existing and future obligations of such Guarantor that are not so subordinated.
(j) Upon request Neither the Issuers nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity 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 Indentureany Guarantee.
(k) Any Each Guarantee given by any direct or indirect parent shall be subject to limitations in accordance with local law in the jurisdiction of organization of the Company applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may be released 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 discharged from all 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.
(l) (i) The obligations and liabilities of any Guarantor incorporated in France (each such Guarantor, a “French Guarantor”) under the Notes or this Indenture and in particular under this Article 10 at X shall not include any time upon written notice to obligation or liability which, if incurred, would constitute the Trustee from such direct or indirect parent provision of financial assistance within the meaning of article L.225-216 of the CompanyFrench Code de Commerce and/or would constitute a misuse of corporate assets within the meaning of articles L.242-6 or L.244-1 of the French Code de Commerce or any other law or regulation having the same effect, as interpreted by French courts.
Appears in 1 contract
Sources: Indenture (Ortho Clinical Diagnostics Holdings PLC)
Guarantees. (a) Each Subject to the provisions of this Article X, each Subsidiary Guarantor hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees guarantees, on a senior secured basis, as a primary obligor guarantor and not merely as a surety, to with each Holder and to the Trustee and its successors and assigns (i) other Guarantor, the full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption acceleration or otherwise, of all obligations Obligations of the Company Issuers under this Indenture and the Notes Documents (including obligations 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, the Trustee and Collateral each Agent) and the Notes, 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 Notes 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 feesNotes, expenses, indemnification or otherwise under this Indenture, the Notes and the Security Documents (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents such obligations guaranteed by such Subsidiary Guarantors being hereinafter collectively herein 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 each such Guarantorit, and that each such Guarantor shall it will remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company 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. 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 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 Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder, the Trustee or Collateral Agent Holder to any security held for payment of the Guaranteed Obligations.
(ed) Except as expressly set forth in Sections 8.01 Section 10.2 and 10.02Article VIII, the obligations of each Subsidiary Guarantor hereunder shall will not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall 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 shall will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder, the Trustee or Collateral any 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 agreementagreement or otherwise; (ii) any extension or renewal of any thereof; (iii) any rescission, by any waiver waiver, amendment or modification of any thereofof the terms or provisions of this Indenture, the Notes, the Notes Collateral Agreement, the MYT Guarantee and Collateral Agreement or any other Notes Document; (iv) the release of any security held by any Holder, the Trustee or any Agent for the Guaranteed Obligations or any of them; (v) the failure of any Holder, the Trustee or any Agent 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 obligations, Guaranteed Obligations; or by (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 any such Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 and 10.02, each Each Subsidiary Guarantor agrees that its Subsidiary Guarantee shall herein will remain in full force and effect until payment in full of all the Guaranteed ObligationsObligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Except as set forth in Sections 8.01 and 10.02, each Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein shall 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 of, premium, if any, or interest on any of the Guaranteed Obligation Obligations is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral any Agent upon the bankruptcy or reorganization of the Company Issuers or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral any Agent has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Company Issuers to pay any of the principal of or interest on any Guaranteed Obligation Obligations when and as the same shall will 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 shallwill, 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, the Trustee or Collateral any Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, 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 applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the Holders, the Trustee and Collateral Agent Issuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in respect of the Guaranteed Obligationssuch proceeding).
(hg) Each 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 Subsidiary Guarantor further agrees that, as between itsuch Subsidiary Guarantor, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby by this Guarantee may be accelerated as provided in Article 6 this Indenture for the purposes of any its Subsidiary Guarantee hereinin this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article 6Obligations, such Guaranteed Obligations (whether or not due and payable) shall will forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Subsidiary Guarantee.
(ih) Each Subsidiary Guarantor also agrees to pay any and all fees reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee, Trustee or the Collateral Agent or any Holder Holders in enforcing any rights under this Section 10.01Guarantee.
(ji) Upon request of No Issuers or the TrusteeSubsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, each Guarantor shall execute termination or discharge thereof and deliver any such further instruments and do such further acts as may notation will not be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
(k) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice a condition to the Trustee from such direct or indirect parent validity of the Companyany Guarantee.
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Guarantees. Neither the Company nor any of its Subsidiaries shall create, incur, assume, or remain liable with respect to any Guarantees other than the following:
(a) Each Guarantor hereby jointly Guarantees in favor of the Agent or any of its affiliates or the Lenders hereunder;
(b) Guarantees existing on the date of this Agreement and severally, irrevocably and unconditionally guarantees disclosed on a senior secured basis, as a primary obligor and not merely as a EXHIBIT C hereto or in the financial statements referred to in SECTION 4.6;
(c) Guarantees resulting from the endorsement of negotiable instruments for collection in the ordinary course of business;
(d) Guarantees with respect to surety, to each Holder appeal performance and return-of-money and other similar obligations incurred in the ordinary course of business (exclusive of obligations for the payment of borrowed money) not exceeding in the aggregate at any time $2,000,000;
(e) Guarantees of normal trade debt relating to the Trustee acquisition of goods, services and its successors supplies;
(f) Guarantee of the obligations of Ranche Limited, doing business as Guess International pursuant to a certain Guarantee substantially in the form of EXHIBIT L hereto, but only to the extent of the aggregate face amount of outstanding letters of credit issued by The First National Bank of Boston for the benefit of Ranche Limited under the Ranche Limited Credit Facility as of November 22, 1994; and assigns (i) as the full and punctual payment when dueface amount of such outstanding letters of credit decrease, whether at Stated Maturity, by acceleration, by redemption or otherwise, of all the obligations of the Company under this Indenture (including such guarantee shall decrease by a corresponding amount; and such guarantee shall continue in effect only for so long as any such letters of credit and/or obligations to the Trustee with respect thereto remain outstanding, and Collateral Agent) and the Notes, whether for payment when no such letters 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 Notes held by the Holders, all other monetary obligations of the Company under this Indenture and the Notes credit remain outstanding 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 the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives 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 Guarantor hereby waives any right to which it may be entitled to respect thereto have its obligations hereunder divided among the Guarantorsbeen indefeasibly satisfied, 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, each Guarantor further agrees that its Guarantee herein shall continue to no longer be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company or otherwise.permitted hereunder;
(g) In furtherance Guarantees of the foregoing obligations for loans, letters of credit and other extensions of credit of Guess Italia or ▇▇▇▇▇▇▇▇ permitted under SECTION 6.1(h) which do not exceed $12,000,000 in limitation of any other right which any Holderthe aggregate, less the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal total face amount of such Guaranteed Obligationsall accounts receivable sold, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only factored or pledged by Guess Italia or ▇▇▇▇▇▇▇▇ to lenders to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed Obligations.permitted under SECTION 6.5(i); and
(h) Each Guarantor agrees that it shall not be entitled to any right Guarantees 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 it, on the one hand, loans and the Holders, the Trustee and Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) Each Guarantor also agrees to pay any and all fees and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 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) Any Guarantee given borrowings obtained by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.'s Subsidiaries not to exceed $40,000,000 in the aggregate less Guaranties under SECTION 6.2(g) and any other amount as listed on EXHIBIT C.
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Guarantees. (a) Each Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder and Holder, to the Trustee extent lawful, and its successors and assigns (i) the Trustee, the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of all obligations the principal of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, whether for payment of principal ofand, premium, if any, or and 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 Notes held by the Holders, and all other monetary obligations Obligations of the Company Issuer under this Indenture and the Notes and all other Second Lien Obligations and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuer or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture, the Notes post-petition interest is allowed in such proceeding and the Security Documents obligations under Section 7.6) (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further 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 each such Guarantorit, and that each such Guarantor it shall remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Guarantor Obligations. The .
(c) Each Guarantor further agrees that its 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 Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (ia) the failure of any Holder, the Trustee or Collateral Agent Holder to assert any claim or demand or to enforce any right or remedy against the Company Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (iib) any extension or renewal of this Indenture, the Notes or any other agreementthereof; (iiic) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (ivd) the release of any security, if any, security held by any Holder, the Trustee or Collateral Agent Holder for the Guaranteed Guarantor Obligations or any Guarantorof them; (ve) the failure of any Holder, Trustee or Collateral Agent Holder to exercise any right or remedy against any other guarantor of the Guaranteed ObligationsGuarantor; or (vif) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
the Issuer; (cg) 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 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, Guarantor Obligations; or by (h) 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 Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 and 10.02, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Except as set forth in Sections 8.01 and 10.02, each 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 and, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent Holder upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, Trustee or the Trustee or Collateral Agent on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, 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 applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the Holders, the Trustee and Collateral Agent Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in respect of the Guaranteed Obligationssuch proceeding).
(hg) Each 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 itsuch Guarantor, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article 6 this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article 6Guarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(ih) Each Guarantor also agrees to pay any and all fees reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee, Trustee or the Collateral Agent or any Holder Holders in enforcing any rights under this Section 10.01Section.
(ji) Upon request of Neither the TrusteeIssuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, each Guarantor termination or discharge thereof and any such notation shall execute and deliver such further instruments and do such further acts as may not be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
(k) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice a condition to the Trustee from such direct or indirect parent validity of the Companyany Guarantee.
Appears in 1 contract
Guarantees. (a) Each Subject to this ARTICLE Twelve, each Guarantor hereby jointly and severally, irrevocably and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor and not merely as a surety, to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns assigns, regardless of the validity and enforceability of this Indenture, (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral AgentTrustee) and the Notes, whether for payment of principal of, premium, or premium (if any), or interest and Special Interest (including any interestif any) on, 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 Notes held by the Holders, and all other monetary obligations of the Company under this Indenture (including interest on the overdue principal of, premium (if any), interest and Special Interest (if any) on, the Notes, if lawful (subject in all cases to any applicable grace period provided herein)) 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, Indenture and the Notes and the Security Documents (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 ARTICLE Twelve notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation topresentment, demand of payment from and protest to payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company of in relation to any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives 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, Holder or 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, security held by any Holder, Holder or the Trustee or Collateral Agent for the Guaranteed Obligations or any Guarantor; (v) the failure of any Holder, Holder or Trustee or Collateral Agent to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (vi) the recovery of any judgment against the Company; (vii) any change in the ownership of such Guarantor, except as provided in Section 10.02(b)12.07 or Section 12.08 or (viii) any other circumstance which might constitute a legal or equitable discharge or defense of a Guarantor.
(c) 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 Guarantor by virtue hereof, upon the failure of the Company to pay the principal of, premium (if any), interest or Special Interest (if any) on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee (or as directed by the Holders), forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (i) the unpaid principal of and premium (if any) on such Guaranteed Obligations, (ii) accrued and unpaid interest, including Special Interest (if any), on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders and the Trustee. Each Guarantor further agrees that its Note 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.
(d) 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 Guarantor hereby waives any right to which it may be entitled to have the assets of the Company in respect of such Guaranteed Obligations 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 ARTICLE Eight, Section 12.02 and 10.02Section 12.08, 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, Holder or the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02, each Each Guarantor agrees that its Note Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02If any Holder or the Trustee is required by any court or otherwise to return to the Company, 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, Guarantors or any part thereofcustodian, of principal of trustee, liquidator or interest on other similar official acting in relation to either the Company or any Guaranteed Obligation is rescinded or must otherwise be restored Guarantor, any amount paid by any Holder, of them to the Trustee or Collateral Agent upon such Holder, this Note Guarantee, to the bankruptcy or reorganization of the Company or otherwiseextent theretofore discharged, shall be reinstated in full force and effect.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed Obligations.
(h) Each 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 it, on the one hand, and the Holders, Holders and the Trustee and Collateral AgentTrustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 ARTICLE Six for the purposes of any the Note Guarantee hereinof such Guarantor, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6ARTICLE Six, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01the Note Guarantee of such Guarantor. The Guarantors shall 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 under the Note Guarantee.
(ih) Each Guarantor also agrees to pay any and all fees costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent Trustee or any Holder in enforcing any of its rights under this Section 10.0112.01.
(ji) 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 more effectively carry out more effectively the purpose of this Indenture.
(k) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Sources: Indenture (Acco Brands Corp)
Guarantees. (a) Each Guarantor hereby Subject to the provisions of this Article Thirteen, each Guarantor, hereby, jointly and severally, irrevocably and unconditionally guarantees on a senior secured basis, as a primary obligor and not merely as a surety, unconditionally and irrevocably, Guarantees to each Holder and to the Trustee Trustee, the Indenture Obligations including, without limitation, the prompt and its successors complete payment and assigns performance by the Issuer and each other Guarantor when due (i) the full and punctual payment when due, whether at Stated Maturitythe stated maturity, by acceleration, by redemption or otherwise, of all obligations ) of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, whether for payment of principal of, premium, if any, or interest (including any and interest, feesif any, 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 Notes held by the Holders, Securities and all other monetary obligations and liabilities of the Company Issuer under this Indenture (including without limitation interest accruing after the filing of any petition in bankruptcy, or 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 Notes and all other Second Lien Obligations and (iiobligations under Section 6.07) 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 the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further agrees that the Guaranteed Guarantor Obligations shall rank equally in right of payment with other senior secured Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations. Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that each such Guarantor shall it will remain bound under this Article 10 Thirteen notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) . Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives notice of protest for nonpaymentnon-payment. Each Guarantor waives notice of any default under the Notes Securities or the Guaranteed Guarantor 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 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 (subject (in the case of the Guarantors identified thereon) to the provisions of Section 13.06) that its Guarantee herein constitutes a guarantee an absolute, irrevocable and unconditional Guarantee of payment, performance and compliance when due payment (and is not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder, the Trustee or Collateral Agent Holder to any security held for payment of the Guaranteed Guarantor Obligations.
(e) . Except as expressly set forth in Sections 8.01 Section 13.02 (and 10.02except, in the case of the Guarantors identified therein, as set forth in the provisions of Section 13.06), the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full (or pursuant to Sections 8.01 or 10.13(c))), 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 Guarantor 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 (a) the failure of any Holder, the Trustee or Collateral Agent Holder to assert any claim or demand or to enforce any right or remedy under against the Issuer or any other person under, this Indenture, the Notes Securities or any other agreement or otherwise; (b) any extension or renewal granted; (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 waiver Holder or modification the Trustee for the Guarantor Obligations or any of them; (e) the failure of any thereof, by Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the obligations, Guarantor Obligations; or by (h) 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 Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(f) Except as set forth in . Subject to the provisions of Sections 8.01 8.01, 10.13 and 10.0210.14, each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Sections 8.01 and 10.02, 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed Obligations.
(h) Each 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 it, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) Each Guarantor also agrees to pay any and all fees and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.or
Appears in 1 contract
Sources: Supplemental Indenture (Blyth Inc)
Guarantees. (a) Each Guarantor hereby jointly and severally, irrevocably and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor and not merely as a suretysurety on a senior basis, to each Holder and to the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and the Notes Collateral Agent) under this Indenture, the Notes, the Security Documents and the NotesIntercreditor Agreement, 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 Notes held by the Holders, and all other monetary obligations of the Company under this Indenture Indenture, the Notes, the Security Documents and the Notes and all other Second Lien Obligations Intercreditor Agreement 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 Notes, the Security Documents and the Intercreditor Agreement (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. The Guaranteed Obligations of a Guarantor will 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 4.12 and 4.15.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives 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 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 Notes, any Security Document, or any other agreement or otherwise; (ii) any extension or renewal of this Indenture, the Notes 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 Notes, any Security Document or any other agreement; (iv) the release of any security, if any, security held by any Holder, the Trustee or the Notes Collateral Agent for the Guaranteed Obligations or any Guarantor; (v) the failure of any Holder, Trustee or the Notes 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 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 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 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, the Trustee or the Notes Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 8.01, 10.02 and 10.0210.06, 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, the Trustee or the Notes Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes Notes, any Security Document or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(f) Except as expressly set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as expressly set forth in Sections 8.01 and 10.02, 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, Holder or the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder, Holder or the Trustee or Notes Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, 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 Notes Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company then due to the Holders, the Trustee and the Notes Collateral Agent in respect of the Guaranteed Obligations.
(h) Each 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 it, on the one hand, and the Holders, the Trustee and the Notes Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) Each Guarantor also agrees to pay any and all fees costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Notes Collateral Agent or any Holder in enforcing any rights under this Section 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) Any 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 given by any direct or indirect parent 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 Company may 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) 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 obligations guaranteed. “Fair Share Contribution Amount” means, with respect to a Contributing Guarantor as of any date of determination, the maximum aggregate amount of the obligations of such Contributing Guarantor under its Guarantee that would not render its obligations hereunder or thereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of the Bankruptcy Code or any comparable 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, any assets or liabilities of such Contributing Guarantor arising by virtue of any rights to subrogation, reimbursement or indemnification or any rights to or obligations of contribution hereunder shall not be released considered as assets or liabilities of such Contributing Guarantor. “Aggregate Payments” means, with respect to a Contributing Guarantor as of any date of determination, an amount equal to (1) the aggregate amount of all payments and discharged 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 all 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 contribution agreement set forth in this Section 10.01(k). For the avoidance of doubt, nothing in this Section 10.01(k) shall limit or impair, by implication or otherwise, each Guarantor’s obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Companyits Guarantee.
Appears in 1 contract
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 the 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) Each Guarantor hereby jointly and severally, irrevocably and unconditionally guarantees on a senior secured basis, as a primary obligor and not merely as a surety, to each Holder and to endorsements of negotiable instruments for deposit or collection or similar transactions in the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, normal course of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, 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 Notes 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 the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation.business;
(b) Each Guarantor waives presentation toany guarantee of the completion of a real estate building project if the Borrower or any Subsidiary is the developer of the project or has a property interest in the project, demand of payment from and protest provided, that such guarantee contains balancing provisions satisfactory to the Company of any of the Guaranteed Obligations Banks and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes provided, further, that no debt service guarantees or the Guaranteed Obligations. The obligations of each Guarantor hereunder balancing guarantees through lease-up 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).permitted;
(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. 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[Reserved.];
(d) Each Guarantor further agrees that its Guarantee herein constitutes a any indemnity or guarantee of payment, a surety bond for the 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, the Trustee or Collateral Agent to any security held for payment some customer of the Guaranteed Obligations.Borrower or any Subsidiary of the customer's obligations under a land development contract;
(e) Except as expressly set forth in Sections 8.01 and 10.02, any guarantee by Borrower of the equity investment or performance of a Subsidiary (other than any obligations of each Guarantor hereunder shall such Subsidiary incurred for borrowed money) in connection with a real estate project in favor of a partner or partnership in which such Subsidiary is a general partner, when Borrower deems it to be in its best interest not to be subject to any reduction, limitation, impairment a partner 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, have a direct interest in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.partnership;
(f) Except as set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full Borrower's guarantee of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, each Guarantor further agrees that its Guarantee herein shall continue up to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent upon the bankruptcy or reorganization Six Million Eight Hundred Thousand Dollars ($6,800,000) of the Company or otherwise.Wisconsin Park Associates' letter of credit; and
(g) In furtherance guarantee(s) by Borrower not permitted under the provisions of the foregoing and Subsections (a) through (f), inclusive, of this Section 8.07 of up to an aggregate principal amount of indebtedness not in limitation of at any other right which any Holder, the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent time exceeding an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Four Million Five Hundred Thousand Dollars ($4,500,000) minus (ii) accrued and unpaid interest on such Guaranteed Obligations (but only all amounts subject to the extent not prohibited guarantee(s) permitted by applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed Obligations.
(h) Each 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 it, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) Each Guarantor also agrees to pay any and all fees and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.9.12
Appears in 1 contract
Guarantees. (a) Each Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, severally irrevocably and unconditionally guarantees on a senior secured basis, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder of the Notes, to the extent lawful, and to the Trustee and its successors and assigns (i) the full Collateral Agent, the performance and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption acceleration or otherwise, of all obligations Obligations of the Company Issuer under this Indenture and the Notes (including obligations interest which, but for the filing of a petition in bankruptcy with respect to the Issuer, would have accrued on any Obligation, whether or not a claim is allowed against the Issuer for such interest in the related bankruptcy proceeding) to the Holders, the Trustee and the Collateral Agent) and the Notes, 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 Notes 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 feesNotes, expenses, indemnification or otherwise under this Indenture, the Notes and the Security Documents (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents such obligations guaranteed by such Guarantors being hereinafter collectively herein called the “Guaranteed Guarantor Obligations”). Each Guarantor further 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 each such Guarantorit, and that each such Guarantor it shall remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Guarantor Obligations. The .
(c) Each Guarantor further agrees that its 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 Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (ia) the failure of any Holder, the Trustee or Collateral Agent Holder to assert any claim or demand or to enforce any right or remedy against the Company Issuer or any other Person person under this Indenture, the Notes or any other agreement or otherwise; (iib) any extension or renewal of this Indenture, the Notes or any other agreementthereof; (iiic) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (ivd) the release of any security, if any, security held by any Holder, the Trustee or Collateral Agent Holder for the Guaranteed Guarantor Obligations or any Guarantorof them; (ve) the failure of any Holder, Trustee or Collateral Agent Holder to exercise any right or remedy against any other guarantor of the Guaranteed ObligationsGuarantor; or (vif) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
the Issuer; (cg) 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 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, Guarantor Obligations; or by (h) 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 Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 and 10.02, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2, 10.5 or Article VIII. Except as set forth in Sections 8.01 and 10.02, each 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 of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent Holder upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed Obligations.
(h) Each 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 it, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) Each Guarantor also agrees to pay any and all fees and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Guarantees. (a) Each Guarantor hereby jointly In respect of Notes issued on or before December 31, 2021, the States of Belgium, France and Luxembourg as Guarantors will severally, irrevocably and unconditionally guarantees on a senior secured basisbut not jointly, as a primary obligor and not merely as a suretyguarantee, to each Holder and to the Trustee extent of its percentage share indicated in the Independent On-Demand Guarantee, dated January 24, 2013, payments of principal, interest and its successors incidental amounts due with respect to such Notes (the "Tri- Guarantor Guarantee") and assigns (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations subject to the Trustee and Collateral Agent) and the Notes, 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 Notes 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 the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives 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 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly limitations set forth in Sections 8.01 Clause 3 thereof. The Tri-Guarantor Guarantee is an unconditional and 10.02irrevocable on-demand guarantee. For further information on the Tri-Guarantor Guarantee, see the section entitled "The Guarantees—Tri-Guarantor Guarantee" in this Base Prospectus. In respect of Notes issued on or after January 1, 2022, the obligations States of Belgium and France as Guarantors will, severally but not jointly, guarantee, each to the extent of its percentage share indicated in an amended and restated Independent On-Demand Guarantee to be entered into after the date of this Base Prospectus but before January 1, 2022, payments of principal, interest and incidental amounts due with respect to such Notes (the "Bi- Guarantor hereunder shall not be Guarantee" and, together with the Tri-Guarantor Guarantee, as the context so requires, the "Guarantees" and each a "Guarantee") and subject to any reductionthe limitations to be set forth therein. The State of Luxembourg will not guarantee Notes issued on or after January 1, limitation2022. As from January 1, 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 foregoing2022, the aggregate amount payable for all obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected (including the Notes) issued by the failure of Issuer and benefitting from either the Tri-Guarantor Guarantee or the Bi-Guarantor Guarantee outstanding at any Holder, time (the Trustee obligations issued by the Issuer and benefitting from the Tri- Guarantor Guarantee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Bi-Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstatedGuarantee, as the case may be, if being the "Guaranteed Obligations") is expected to be capped at any time payment, or any part thereof, a maximum amount of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored EUR 75,000,000,000 by any Holder, the Trustee or Collateral Agent upon the bankruptcy or reorganization virtue of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent has at law or in equity against any Bi-Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantee. The Bi-Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause Guarantee is expected to be paid, in cash, to an unconditional and irrevocable on-demand guarantee. The Issuer will supplement the Holders, the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued Programme and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent this Base Prospectus in respect of the Guaranteed Obligations.
(h) Each Bi-Guarantor agrees that Guarantee following the execution of it shall by the States of Belgium and France. For further information on the Bi-Guarantor Guarantee, see the section entitled "The Guarantees—The Bi-Guarantor Guarantee" in this Base Prospectus. Notes issued on or before December 31, 2021 will continue to be guaranteed, severally but not be entitled to any right jointly, by the States of subrogation Belgium, France and Luxembourg in relation to accordance with the Holders Tri-Guarantor Guarantee and the obligations of the States of Belgium, France and Luxembourg in respect of such Notes shall not in any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between it, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction way by amended or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) Each Guarantor also agrees to pay any and all fees and expenses (including reasonable attorneys’ fees and expenses) incurred varied by the Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 10.01Bi-Guarantor Guarantee.
(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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Guarantees. (a) Each Subject to this ARTICLE Eleven, each Guarantor hereby jointly and severally, irrevocably and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor and not merely as a surety, to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns assigns, regardless of the validity and enforceability of this Indenture, (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Company Issuer under this Indenture (including obligations to the Trustee and Collateral AgentTrustee) and the Notes, whether for payment of principal of, premium, or premium (if any), or interest (including any interestif any) on, 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 Notes held by the Holders, and all other monetary obligations of the Company Issuer under this Indenture (including interest on the overdue principal of, premium (if any), interest (if any) on, the Notes, if lawful (subject in all cases to any applicable grace period provided herein)) 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 Issuer whether for fees, expenses, indemnification or otherwise under this Indenture, Indenture and the Notes and the Security Documents (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 ARTICLE Eleven notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives 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 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed Obligations.
(h) Each 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 it, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) Each Guarantor also agrees to pay any and all fees and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Sources: Indenture (ACCO BRANDS Corp)
Guarantees. (a) Each Guarantor hereby of AOL and Historic TW hereby, jointly and severally, unconditionally and irrevocably and unconditionally guarantees on a senior secured basis, as a primary obligor and not merely as a surety, to each Holder and to the Trustee Administrative Agent, for the ratable benefit of the Lenders and its successors their respective successors, indorsees, transferees and assigns assigns, the prompt and complete payment and performance by the Designated Borrowers when due (i) the full and punctual payment when due, whether at Stated Maturitythe stated maturity, by acceleration, by redemption acceleration or otherwise, of all obligations ) of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, 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 Notes 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 the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from Time Warner hereby unconditionally and protest irrevocably guarantees to the Company of any Administrative Agent, for the ratable benefit of the Guaranteed Obligations Lenders and also waives notice of protest for nonpayment. Each Guarantor waives 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 Holdertheir respective successors, indorsees, transferees and assigns, the Trustee or Collateral Agent to assert any claim or demand or to enforce any right or remedy against prompt and complete payment and performance by TWIFL when due (whether at the Company or any other Person under this Indenturestated maturity, the Notes or any other agreement by acceleration 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 Obligations 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)TWIFL.
(c) Each Guarantor hereby waives any right of TBS and TWCI hereby, jointly and severally, unconditionally and irrevocably guarantees to which it may be entitled to have 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 Historic TW when due (whether at the stated maturity, by acceleration or otherwise) of its obligations hereunder divided among and liabilities under this Guarantee (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"Historic TW Obligations") including under Section 2(a) hereof.
(d) 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02, each Guarantor agrees that its This Guarantee shall remain in full force and effect until the Obligations are paid in full, no Letter of Credit shall be outstanding (unless such Letter of Credit is cash collateralized in accordance with Section 2.05(c) of the Credit Agreement) and the Commitments are terminated, notwithstanding that from time to time prior thereto either one or both of the Designated Borrowers may be free from any Obligations.
(e) Each Guarantor agrees that whenever, at any time, or from time to time, it shall make any payment to the Administrative Agent or any Lender on account of its liability hereunder, it will notify the Administrative Agent and such Lender in full writing that such payment is made under this Guarantee for such purpose.
(f) Anything herein or in any other Credit Document to the contrary notwithstanding, the maximum liability of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, each Guarantor further agrees that its Guarantee herein hereunder and under the other Credit Documents shall continue in no event exceed the amount which can be guaranteed by such Guarantor under applicable federal and state laws relating to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, insolvency of principal debtors (after giving effect to the right of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company or otherwisecontribution established in Section 3 hereof).
(g) In furtherance No payment or payments made by either of the foregoing and not in limitation 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 other right which action or proceeding or any Holdersetoff or appropriation or payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the Trustee or Collateral Agent has at law or in equity against liability of any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and hereunder who shall, upon receipt of written demand notwithstanding any such payment or payments (other than payments made by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent Guarantor in respect of the Guaranteed Obligations.
(h) Each Obligations or payments received or collected from such 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 it, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations), remain liable for the Obligations guaranteed herebyand, and (ii) in the event case of any declaration of acceleration TBS and TWCI, the Historic TW Obligations, up to the maximum liability of such Guaranteed Guarantor hereunder until the Obligations as provided are paid in Article 6full, no Letter of Credit shall be outstanding (unless such Guaranteed Obligations (whether or not due and payableLetter of Credit is cash collaterized in accordance with Section 2.05(c) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) Each Guarantor also agrees to pay any and all fees and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 10.01.
(j) Upon request of the Trustee, each Guarantor shall execute Credit Agreement) 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 IndentureCommitments are terminated.
(k) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Sources: Credit Agreement (Time Warner Inc)
Guarantees. (a) Each On and after the Combinations Date, each Guarantor hereby jointly and severally, irrevocably and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor and not merely as a suretysurety on a senior basis, to each Holder and to the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Company Issuers under this Indenture (including obligations to the Trustee and Collateral AgentTrustee) and the Notes, 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 on in respect of (x) the Bankruptcy Code after any bankruptcy or insolvency petition under the Bankruptcy Code and (y) any other debtor relief laws) on the Notes held by the Holders, and all other monetary obligations of the Company Issuers 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 Issuers whether for fees, expenses, indemnification or otherwise under this Indenture, Indenture and the Notes and the Security Documents (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. The Guaranteed Obligations of a Guarantor will 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 4.12 and 4.15.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuers of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives 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, Holder or the Trustee or Collateral Agent to assert any claim or demand or to enforce any right or remedy against the Company Issuers 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 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 Notes, any Security Document or any other agreement; (iv) the release of any security, if any, security held by any Holder, Holder or the Trustee or Collateral Agent for the Guaranteed Obligations or any Guarantor; (v) the failure of any Holder, Holder or 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 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 Issuers or any other Guarantor first be used and depleted as payment of the Company’s Issuers’ 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 Issuers be sued prior to an action being initiated against such Guarantor.
(d) 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, Holder or the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 10.02 and 10.0210.06, 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, Holder or the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes Notes, any Security Document or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02, each Each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, each 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, Holder or the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company Issuers or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder, Holder or the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuers to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, Holders or the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company Issuers to the Holders, Holders and the Trustee and Collateral Agent in respect of the Guaranteed ObligationsTrustee.
(h) Each 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 it, on the one hand, and the Holders, Holders and the Trustee and Collateral AgentTrustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) Each Guarantor also agrees to pay any and all fees costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent Trustee or any Holder in enforcing any rights under this Section 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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Guarantees. (a) Each On and after the Issue Date, each Guarantor hereby jointly and severally, irrevocably and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor and not merely as a suretysurety on a senior basis, to each Holder and to the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Company Issuers under this Indenture (including obligations to the Trustee and Collateral AgentTrustee) and the Notes, 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 on in respect of (x) the Bankruptcy Code after any bankruptcy or insolvency petition under the Bankruptcy Code and (y) any other debtor relief laws) on the Notes held by the Holders, and all other monetary obligations of the Company Issuers 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 Issuers whether for fees, expenses, indemnification or otherwise under this Indenture, Indenture and the Notes and the Security Documents (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. The Guaranteed Obligations of a Guarantor will 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 4.12 and 4.15.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuers of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives 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 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed Obligations.
(h) Each 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 it, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) Each Guarantor also agrees to pay any and all fees and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.Guaranteed
Appears in 1 contract
Guarantees. (a) Each Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder and of the Notes, to the extent lawful, and the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, whether for payment of principal of, premium, if any, or and 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 Notes held by the Holders, and all other monetary obligations Obligations of the Company Issuers under this Indenture and the Notes and all other Second Lien Obligations and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuers or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture, the Notes post-petition interest is allowed in such proceeding and the Security Documents obligations under Section 7.6) (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further 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 each such Guarantorit, and that each such Guarantor it shall remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuers of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Guarantor Obligations. The .
(c) Each Guarantor further agrees that its 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 Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (ia) the failure of any Holder, the Trustee or Collateral Agent Holder to assert any claim or demand or to enforce any right or remedy against the Company Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (iib) any extension or renewal of this Indenture, the Notes or any other agreementthereof; (iiic) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (ivd) the release of any security, if any, security held by any Holder, the Trustee or Collateral Agent Holder for the Guaranteed Guarantor Obligations or any Guarantorof them; (ve) the failure of any Holder, Trustee or Collateral Agent Holder to exercise any right or remedy against any other guarantor of the Guaranteed ObligationsGuarantor; or (vif) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
the Issuers; (cg) 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 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, Guarantor Obligations; or by (h) 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 Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 and 10.02, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Except as set forth in Sections 8.01 and 10.02, each 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 of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent Holder upon the bankruptcy or reorganization of the Company Issuers or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuers to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, Trustee or the Trustee or Collateral Agent on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, 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 applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the Holders, the Trustee and Collateral Agent Issuers or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in respect of the Guaranteed Obligationssuch proceeding).
(hg) Each 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 itsuch Guarantor, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article 6 this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article 6Guarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(ih) Each Guarantor also agrees to pay any and all fees reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee, Trustee or the Collateral Agent or any Holder Holders in enforcing any rights under this Section 10.01Section.
(i) Neither the Issuers nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Upon request Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the Trusteeapplicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, each Guarantor shall execute such limitations and deliver 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 further instruments limitations and do such further acts defenses as may be reasonably necessary or proper to carry out more effectively are described in the purpose Offering Circular under the caption “Limitations on Validity and Enforceability of this Indenturethe Guarantees and the Security Interests” and (iii) other considerations under applicable law.
(k) Any Guarantee given by If and to the extent that a Guarantor incorporated in Switzerland (a “Swiss Guarantor”) is liable under the Guarantees or any other provision of the Notes or this Indenture, for obligations other than obligations of one of its wholly owned subsidiaries (being obligations of its direct or indirect parent companies (for purposes of this clause (k), an “up-stream guarantee”) or sister companies (for purposes of this clause (k), a “cross-stream guarantee”)) (for purposes of this clause (k), the “Restricted Obligations”), and that the making of a payment in fulfilling Restricted Obligations would under Swiss corporate law (inter alia, prohibiting capital repayments or restricting distributions) at the time payment is due, not be permitted, then such obligations and payment amount shall from time to time be limited to the amount permitted to be paid under Swiss corporate law; provided that such limited amount shall at no time be less than such Swiss Guarantor’s distributable reserves (presently being the balance sheet profits and any reserves available for distribution, including, without limitation, Kapitaleinlagereserven) at the time or times payment is requested from the relevant Swiss Guarantor, and further provided that such limitation (as may apply from time to time or not) shall not (generally or definitively) release such Swiss Guarantor from payment obligations hereunder in excess thereof, but merely postpone the payment date therefore until such times as payment is again permitted notwithstanding such limitation. Any and all indemnities and guarantees contained in the Notes or this Indenture shall be construed in a manner consistent with the provisos herein contained. In case a Swiss Guarantor who must make a payment in respect of Restricted Obligations under its Guarantee is obliged to withhold Swiss Withholding Tax (Verrechnungssteuer) in respect of such payment, such Swiss Guarantor shall:
(i) procure that such payments can be made without deduction of Swiss Withholding Tax, or with deduction of Swiss Withholding Tax at a reduced rate, by discharging the liability to such tax by notification pursuant to applicable law (including double tax treaties) rather than payment of the Company tax;
(ii) if the notification procedure pursuant to sub-paragraph (i) above does not apply, deduct Swiss Withholding Tax at the rate of 35% (or such other rate as in force from time to time), or if the notification procedure pursuant to sub-paragraph (i) above applies for a part of the Swiss Withholding Tax only, deduct Swiss Withholding Tax at the reduced rate resulting after the discharge of part of such tax by notification under applicable law, from any payment made by it in respect of Restricted Obligations and promptly pay any such taxes to the Swiss Federal Tax Administration (Eidgenössische Steuerverwaltung);
(iii) notify the Trustee in writing that such notification, or as the case may be, deduction has been made and provide the Trustee with evidence that such a notification of the Swiss Federal Tax Administration has been made or, as the case may be, such taxes deducted have been paid to the Swiss Federal Tax Administration;
(iv) in the case of a deduction of Swiss Withholding Tax:
(1) use its best efforts to ensure that any Person other than a Secured Party which is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such payment in respect of Restricted Obligations, will, as soon as possible after such deduction (A) request a refund of the Swiss Withholding Tax under applicable law (including tax treaties) and (B) pay to the Trustee upon receipt any amounts so refunded; and
(2) if a Secured Party is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such payment, shall provide the Trustee (on its behalf or on behalf of any Secured Party) those documents that are required by law and applicable tax treaties to be released provided by the payer of such tax, for each relevant Secured Party, to prepare a claim for refund of Swiss Withholding Tax. If a Swiss Guarantor is obliged to withhold Swiss Withholding Tax in accordance with the previous paragraph, the Trustee shall be entitled to further enforce the Guarantees or any other indemnity granted by the respective Swiss Guarantor under this Indenture and discharged apply proceeds therefrom against the Restricted Obligations up to an amount which is equal to that amount which would have been obtained if no withholding of Swiss Withholding Tax were required, whereby such further enforcements shall always be limited to the maximum amount of the freely distributable reserves of the respective Swiss Guarantor as set out above. If and to the extent a demand for payment against a Swiss Guarantor is made by the Trustee and if and to the extent required under Swiss mandatory law (with regards to restricting distributions) applicable at the relevant time, in order to allow the Trustee (and the Secured Parties) to obtain a maximum benefit under the Guarantees, the relevant Swiss Guarantor shall, and any parent company of the Swiss Guarantor being a party to this Indenture shall procure that the Swiss Guarantor will, promptly implement all such measures and/or promptly procure the fulfillment of all prerequisites allowing it to promptly make the (requested) payment(s) hereunder from time to time, including the following:
(i) preparation of an up-to-date audited balance sheet of the Swiss Guarantor;
(ii) obtain a confirmation of the auditors of the Swiss Guarantor confirming the maximum amount of the freely distributable reserves; and
(iii) approval by a shareholders’ meeting of the Swiss Guarantor of the (resulting) distribution
(iv) to the extent permitted by applicable law write up or realize any of the Swiss Guarantor’s assets that are shown in its balance sheet with a book value that is significantly lower than the market value of the assets, in case of realization, however, only if such assets are not necessary for the Swiss Guarantor’s business (nicht betriebsnotwendig); and
(v) all such other measures necessary or useful to allow the Swiss Guarantor to make the payments and perform the obligations hereunder with a minimum of limitations.
(l) The obligations and liabilities of each Guarantor incorporated in Sweden (each a “Swedish Guarantor”) incurred under its Guarantee shall be limited if (and only if) and to the extent required by the provisions of the Swedish Companies Act (Sw. Aktiebolagslagen (2005:551)) regulating (i) distribution of assets (Chapter 17, Sections 1-4 (or its equivalent from time to time)) and (ii) unlawful financial assistance and other prohibited loans and guarantees (Chapter 21, Section 5 (or its equivalent from time to time)), and it is understood that the obligations and liabilities of each Swedish Guarantor in its capacity as Guarantor under its Guarantee only applies to the extent permitted by the aformentioned provisions of the Swedish Companies Act.
(i) The obligations and liabilities of any Guarantor incorporated in France (each such Guarantor, a “French Guarantor”) under the Notes or this Indenture and in particular under this Article 10 X shall not include any obligation or liability which, if incurred, would constitute the provision of financial assistance within the meaning of article L.225-216 of the French Code de Commerce and/or would constitute a misuse of corporate assets within the meaning of articles L.242-6 or L.244-1 of the French Code de Commerce or any other law or regulation having the same effect, as interpreted by French courts.
(ii) The obligations and liabilities of each French Guarantor under this Article X for the obligations under the Notes or this Indenture of any other obligor which is not a Subsidiary of such French Guarantor shall be limited, at any time upon written notice to an amount equal to the Trustee proceeds from such the offering of the Notes which the Issuers have applied for the direct or indirect parent benefit of each French Guarantor through the intercompany loan agreements and cash pooling arrangements that are outstanding on the date a payment is requested to be made by such French Guarantor under this Article X; it being specified that any payment made by a French Guarantor under this Article X in respect of the Company.obligations of the Issuers shall reduce pro tanto the outstanding amount due by such French Guarantor under the intercompany loan agreements or cash pooling arrangements referred to above and that any repayment of the intercompany loans or of the cash pooling arrangements by the French Guarantor shall reduce pro tanto the amount payable under this Article X;
(iii) The obligations and liabilities of each French Guarantor under this Article X for the obligations under the Notes or this Indenture of any other obligor which is its Subsidiary shall not be limited, and shall therefore cover all amounts due by such obligor. However, where such Subsidiary is itself a Guarantor that guarantees the obligations of an obligor that is not a Subsidiary of the relevant French Guarantor, the amounts payable by such French Guarantor under this paragraph (iii) in respect of the obligations of this Subsidi
Appears in 1 contract
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) Each Guarantor hereby 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, irrevocably and unconditionally guarantees on a senior secured basis, as a primary obligor and not merely as a surety, to each Holder and to severally with the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, of DEBTOR for all obligations of the Company under this Indenture (including obligations to the Trustee Contract and Collateral Agent) and the Notes, whether Request 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 Notes held Disbursement by the HoldersDEBTOR, all other monetary and who may at any time be called upon to honor the 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 the foregoinghere assumed, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees event that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives 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 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination DEBTOR for any reason, including fails to make timely payments of what is owed, waiving any claim benefit of waiverorder 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, releasesuch that the same, surrenderirrevocably and irreversibly, alteration or compromisedeclares agreement to the 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 shall not 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 Contract. If the guarantee for Assignment of Credit Rights arising in 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, as described in Table VI and subject to any defense of setoffthe conditions established in this Contract, counterclaimis not lodged within the period prescribed in this Clause 17 or depreciates and/or gets lost, recoupment so as to become awkward, inappropriate, 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, insufficient to secure the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure DEBTOR in this Contract, it is hereby certain and agreed that the DEBTOR and/or guaranteeing third parties will constitute the Assignment of any Holder, Credit Rights in favor of the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreementLENDER, by any waiver contractual or modification legal provisions applicable to its proper formalization and registration, ensuring Assignment of any thereof, by any default, failure or delay, willful or otherwise, in the performance Shares of the obligationscompany Rio das Contas Produtora de Petróleo LTDA within 15 days from the referred-to nonformalization or depreciation, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk and/or loss of any Guarantor or would otherwise operate as a discharge collateral, under penalty of any Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent upon the bankruptcy or reorganization early termination of the Company or otherwisetransaction.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed Obligations.
(h) Each 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 it, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) Each Guarantor also agrees to pay any and all fees and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Guarantees. (a) Each Guarantor hereby jointly and severally, severally irrevocably and unconditionally guarantees on a senior secured basis, as a primary obligor and not merely as a surety, surety on a senior basis to each Holder and 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, by redemption or otherwise, of all obligations of the Company Issuer under this Indenture (including obligations to the Indenture Trustee and Collateral Agent) and the Notes, whether for payment of principal of, or premium, if any, or interest (including any intereston, 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 Notes held by the Holders, and all other monetary obligations of the Company Issuer under this Indenture and the Notes and all other Second Lien Obligations Notes, and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuer, whether for fees, expenses, indemnification or otherwise under this Indenture, Indenture and the Notes and the Security Documents (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 9 notwithstanding any extension or renewal of any Guaranteed Obligation. The Guaranteed Obligations of a Guarantor will 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 Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives 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, Holder or the Indenture Trustee or Collateral Agent to assert any claim or demand or to enforce any right or remedy against the Company 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 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 Notes, any Security Document or any other agreement; (iv) the release of any security, if any, security held by any Holder, Holder or the Indenture Trustee or Collateral Agent for the Guaranteed Obligations or any Guarantor; (v) the failure of any Holder, Holder or the Indenture 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(b9.02(b).
(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. Each Guarantor hereby waives any right to which it may be entitled to have the assets of the Company Issuer or any other Guarantor first be used and depleted as payment of the CompanyIssuer’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 Issuer be sued prior to an action being initiated against such Guarantor.
(d) 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, Holder or the Indenture Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 7.01 and 10.029.02, 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, Holder or the Indenture Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes Notes, any Security Document or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(f) Except as expressly set forth in Sections 8.01 7.01 and 10.029.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as expressly set forth in Sections 8.01 7.01 and 10.029.02, 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, Holder or the Indenture Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder, Holder or the Indenture Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuer to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, 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 Holders, Holders or the Indenture Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company Issuer then due to the Holders, Holders or the Indenture Trustee and Collateral Agent in respect of the Guaranteed Obligations.
(h) Each 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 it, on the one hand, and the Holders, Holders and the Trustee and Collateral AgentIndenture Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 5 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 65, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.019.01.
(i) Each Guarantor also agrees to pay any and all fees costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent Indenture Trustee or any Holder in enforcing any rights under this Section 10.019.01.
(j) 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 purpose of this Indenture.
(k) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Sources: Indenture (Imperial Holdings, Inc.)
Guarantees. (a) Each Guarantor hereby jointly and severally, irrevocably and unconditionally guarantees on a senior secured an unsecured basis, as a primary obligor and not merely as a surety, to each Holder and to the Trustee and its their successors and assigns (i) the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by redemption acceleration or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral AgentTrustee) and the Notes, whether for payment of principal of, premium, if any, or interest (including any intereston, feesif any, 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 Notes held by the Holders, and 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 Indenture and the Security Documents Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives 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 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 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, Holder or the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(ed) Except as expressly set forth in Sections 8.01 8.01(b), 10.02 and 10.0210.06, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 and 10.02Subject to Section 10.02 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, each 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, Holder or the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, Holder or the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed ObligationsTrustee.
(hg) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders Trustee in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between it, on the one hand, and the Holders, the Trustee and Collateral AgentTrustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(ih) Each Guarantor also agrees to pay any and all fees costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent Trustee or any Holder in enforcing any rights under this Section 10.01.
(j) Upon request of the Trustee, each . 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.
(k) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Guarantees. (a) Each Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder and of the Notes, to the extent lawful, and the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, whether for payment of principal of, premium, if any, or and 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 Notes held by the Holders, and all other monetary obligations Obligations of the Company Issuer under this Indenture and the Notes and all other Second Lien Obligations and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuer or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture, the Notes post-petition interest is allowed in such proceeding and the Security Documents obligations under Section 7.6) (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further 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 each such Guarantorit, and that each such Guarantor it shall remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Guarantor Obligations. The .
(c) Each Guarantor further agrees that its 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 Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (ia) the failure of any Holder, the Trustee or Collateral Agent Holder to assert any claim or demand or to enforce any right or remedy against the Company Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (iib) any extension or renewal of this Indenture, the Notes or any other agreementthereof; (iiic) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (ivd) the release of any security, if any, security held by any Holder, the Trustee or Collateral Agent Holder for the Guaranteed Guarantor Obligations or any Guarantorof them; (ve) the failure of any Holder, Trustee or Collateral Agent Holder to exercise any right or remedy against any other guarantor of the Guaranteed ObligationsGuarantor; or (vif) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
the Issuer; (cg) 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 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, Guarantor Obligations; or by (h) 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 Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 and 10.02, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Except as set forth in Sections 8.01 and 10.02, each 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 of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent Holder upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, Trustee or the Trustee or Collateral Agent on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, 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 applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the Holders, the Trustee and Collateral Agent Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in respect of the Guaranteed Obligationssuch proceeding).
(hg) Each 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 itsuch Guarantor, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article 6 this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article 6Guarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(ih) Each Guarantor also agrees to pay any and all fees reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee, Trustee or the Collateral Agent or any Holder Holders in enforcing any rights under this Section 10.01Section.
(i) None of the Issuer or the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Upon request Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the Trusteeapplicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, each Guarantor shall execute such limitations and deliver 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 further instruments limitations and do such further acts defenses as may be reasonably necessary or proper to carry out more effectively are described in the purpose Offering Memorandum under the caption “Limitations on Validity and Enforceability of this Indenturethe Guarantees and the Security Interests” and (iii) other considerations under applicable law.
(k) Any Guarantee given by If and to the extent that a Guarantor incorporated in Switzerland (a “Swiss Guarantor”) is liable under the Guarantees or any other provision of the Notes or this Indenture, for obligations other than obligations of one of its wholly owned subsidiaries (being obligations of its direct or indirect parent companies (an up-stream guarantee) or sister companies (a cross-stream guarantee)) (for purposes of this clause (k), the “Restricted Obligations”), and that the making of a payment in fulfilling Restricted Obligations would under Swiss corporate law (inter alia, prohibiting capital repayments or restricting distributions) at the time payment is due, not be permitted, then such obligations and payment amount shall from time to time be limited to the amount permitted to be paid under Swiss corporate law; provided that such limited amount shall at no time be less than such Swiss Guarantor's distributable capital at the time or times payment is requested from the relevant Swiss Guarantor, and further provided that such limitation (as may apply from time to time or not) shall not (generally or definitively) release such Swiss Guarantor from payment obligations hereunder in excess thereof, but merely postpone the payment date therefore until such times as payment is again permitted notwithstanding such limitation. Any and all indemnities and guarantees contained in the Notes or this Indenture shall be construed in a manner consistent with the provisos herein contained. In case a Swiss Guarantor who must make a payment in respect of Restricted Obligations under its Guarantee is obliged to withhold Swiss Withholding Tax (Verrechnungssteuer) in respect of such payment, such Swiss Guarantor shall:
(i) procure that such payments can be made without deduction of Swiss Withholding Tax, or with deduction of Swiss Withholding Tax at a reduced rate, by discharging the liability to such tax by notification pursuant to applicable law (including double tax treaties) rather than payment of the Company may be released tax;
(ii) if the notification procedure pursuant to sub-paragraph (i) above does not apply, deduct Swiss Withholding Tax at the rate of 35% (or such other rate as in force from time to time), or if the notification procedure pursuant to sub-paragraph (i) above applies for a part of the Swiss Withholding Tax only, deduct Swiss Withholding Tax at the reduced rate resulting after the discharge of part of such tax by notification under applicable law, from any payment made by it in respect of Restricted Obligations and discharged from all obligations under this Article 10 at promptly pay any time upon written notice such taxes to the Swiss Federal Tax Administration (Eidgenössische Steuerverwaltung);
(iii) notify the Trustee from that such direct notification, or indirect parent as the case may be, deduction has been made and provide the Trustee with evidence that such a notification of the Company.Swiss Federal Tax Administration has been made or, as the case may be, such taxes deducted have been paid to the Swiss Federal Tax Administration;
(iv) in the case of a deduction of Swiss Withholding Tax:
Appears in 1 contract
Sources: Supplemental Indenture (Axalta Coating Systems Ltd.)
Guarantees. (a) Each Guarantor hereby jointly and severally, irrevocably and party hereto unconditionally guarantees on a senior secured basisguarantees, as a primary obligor and not merely as a surety, to jointly and severally with each Holder and to other Guarantor party hereto, the Trustee and its successors and assigns (i) the full due and punctual payment of principal and interest on the Loans and the other Secured Obligations, when and as due, whether at Stated Maturitymaturity, by acceleration, by redemption notice or prepayment or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, 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 Notes 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 the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor party hereto further agrees that the Guaranteed Secured Obligations may be extended or and renewed, in whole or in part, without notice to or further assent from each such Guarantorit, and that each such Guarantor shall it will remain bound under this Article 10 upon its guarantee notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Secured Obligations. To the fullest extent permitted by law, each Guarantor party hereto waives presentation presentment to, demand of payment from and protest to any of the Company or any other person of any of the Guaranteed Obligations Secured Obligations, and also waives notice of acceptance of its guarantee and notice of protest for nonpayment. Each Guarantor waives notice of any default under To the Notes or fullest extent permitted by law, the Guaranteed Obligations. The obligations of each a Guarantor party hereto hereunder shall not be affected by (ia) the failure of any Holder, the Trustee or Collateral Agent GP to assert any claim or demand or to enforce any right or remedy against the Company or any other Person Guarantor under the provisions of this Indenture, the Notes Agreement or any of the other agreement Loan Documents or otherwise; (ii) any extension or renewal of this Indenture, the Notes or any other agreement; (iiib) any rescission, waiver, amendment or modification of any of the terms or provisions of this IndentureAgreement, any of the Notes other Loan Documents, any guarantee or any other agreement; (ivc) the release of any security, if any, security held by any Holder, the Trustee or Collateral Agent GP for the Guaranteed Obligations Secured Obligations; or any Guarantor; (vd) the failure of any Holder, Trustee or Collateral Agent GP to exercise any right or remedy against any other guarantor Guarantor of the Guaranteed Secured Obligations; or (vi) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
(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. 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 party hereto further agrees that its Guarantee herein guarantee constitutes a guarantee of payment, performance and compliance payment when due (and not a guarantee of collection) , and waives any right to require that any resort be had by any Holder, the Trustee or Collateral Agent GP to any security (if any) held for payment of the Guaranteed Secured Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02. To the fullest extent permitted by law, the obligations of each Guarantor party hereto hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including including, without limitation, any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of or setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of any of the Guaranteed Secured Obligations or otherwise. Without limiting the generality of the foregoing, to the fullest extent permitted by law, the obligations of each Guarantor herein party hereto hereunder shall not be discharged or impaired or otherwise affected by the failure of any Holder, the Trustee or Collateral Agent GP to assert any claim or demand or to enforce any remedy under this IndentureAgreement or under any other Loan Document, the Notes any guarantee or any other agreement, by any waiver or modification of any provision thereof, by any default, failure or delay, willful or otherwise, in the performance of any of the obligationsSecured Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any such Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02, each . Each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, each Guarantor party hereto further agrees that its Guarantee herein 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 or of or interest on any Guaranteed Secured Obligation is rescinded or must otherwise be restored returned by any Holder, the Trustee or Collateral Agent GP upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee and Collateral Agent in respect of the Guaranteed Obligations.
(h) Each 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 thatparty hereto hereby subordinates to the Secured Obligations all rights of subrogation against the Company and its property and all rights of indemnification, as between itcontribution and reimbursement from the Company and its property, on the one handin each case in connection with this guarantee and any payments made hereunder, and the Holdersregardless of whether such rights arise by operation of law, the Trustee and Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction pursuant to contract or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01otherwise.
(i) Each Guarantor also agrees to pay any and all fees and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Sources: Subordinated Secured Liquidity Facility Agreement (Georgia Pacific Corp)
Guarantees. (a) Each Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder and of the Notes, to the extent lawful, and the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, whether for payment of principal of, premium, if any, or and 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 Notes held by the Holders, and all other monetary obligations Obligations of the Company Issuer under this Indenture and the Notes and all other Second Lien Obligations and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuer or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture, the Notes post-petition interest is allowed in such proceeding and the Security Documents obligations under Section 7.6) (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further 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 each such Guarantorit, and that each such Guarantor it shall remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Guarantor Obligations. The .
(c) Each Guarantor further agrees that its 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 Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (ia) the failure of any Holder, the Trustee or Collateral Agent Holder to assert any claim or demand or to enforce any right or remedy against the Company Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (iib) any extension or renewal of this Indenture, the Notes or any other agreementthereof; (iiic) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (ivd) the release of any security, if any, security held by any Holder, the Trustee or Collateral Agent Holder for the Guaranteed Guarantor Obligations or any Guarantorof them; (ve) the failure of any Holder, Trustee or Collateral Agent Holder to exercise any right or remedy against any other guarantor of the Guaranteed ObligationsGuarantor; or (vif) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
the Issuer; (cg) 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 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, Guarantor Obligations; or by (h) 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 Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 and 10.02, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Except as set forth in Sections 8.01 and 10.02, each 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 of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent Holder upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, Trustee or the Trustee or Collateral Agent on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, 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 applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the Holders, the Trustee and Collateral Agent Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in respect of the Guaranteed Obligationssuch proceeding).
(hg) Each 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 itsuch Guarantor, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article 6 this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article 6Guarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(ih) Each Guarantor also agrees to pay any and all fees reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee, Trustee or the Collateral Agent or any Holder Holders in enforcing any rights under this Section 10.01Section.
(i) None of the Issuer or the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Upon request Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the Trusteeapplicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, each Guarantor shall execute such limitations and deliver 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 further instruments limitations and do such further acts defenses as may be reasonably necessary or proper to carry out more effectively are described in the purpose Offering Memorandum under the caption “Limitations on Validity and Enforceability of this Indenturethe Guarantees and the Security Interests” and (iii) other considerations under applicable law.
(k) Any Guarantee given by If and to the extent that a Guarantor incorporated in Switzerland (a “Swiss Guarantor”) is liable under the Guarantees or any other provision of the Notes or this Indenture, for obligations other than obligations of one of its wholly owned subsidiaries (being obligations of its direct or indirect parent companies (an up-stream guarantee) or sister companies (a cross-stream guarantee)) (for purposes of this clause (k), the “Restricted Obligations”), and that the making of a payment in fulfilling Restricted Obligations would under Swiss corporate law (inter alia, prohibiting capital repayments or restricting distributions) at the time payment is due, not be permitted, then such obligations and payment amount shall from time to time be limited to the amount permitted to be paid under Swiss corporate law; provided that such limited amount shall at no time be less than such Swiss Guarantor’s distributable capital at the time or times payment is requested from the relevant Swiss Guarantor, and further provided that such limitation (as may apply from time to time or not) shall not (generally or definitively) release such Swiss Guarantor from payment obligations hereunder in excess thereof, but merely postpone the payment date therefore until such times as payment is again permitted notwithstanding such limitation. Any and all indemnities and guarantees contained in the Notes or this Indenture shall be construed in a manner consistent with the provisos herein contained. In case a Swiss Guarantor who must make a payment in respect of Restricted Obligations under its Guarantee is obliged to withhold Swiss Withholding Tax (Verrechnungssteuer) in respect of such payment, such Swiss Guarantor shall:
(i) procure that such payments can be made without deduction of Swiss Withholding Tax, or with deduction of Swiss Withholding Tax at a reduced rate, by discharging the liability to such tax by notification pursuant to applicable law (including double tax treaties) rather than payment of the Company tax;
(ii) if the notification procedure pursuant to sub-paragraph (i) above does not apply, deduct Swiss Withholding Tax at the rate of 35% (or such other rate as in force from time to time), or if the notification procedure pursuant to sub-paragraph (i) above applies for a part of the Swiss Withholding Tax only, deduct Swiss Withholding Tax at the reduced rate resulting after the discharge of part of such tax by notification under applicable law, from any payment made by it in respect of Restricted Obligations and promptly pay any such taxes to the Swiss Federal Tax Administration (Eidgenössische Steuerverwaltung);
(iii) notify the Trustee that such notification, or as the case may be, deduction has been made and provide the Trustee with evidence that such a notification of the Swiss Federal Tax Administration has been made or, as the case may be, such taxes deducted have been paid to the Swiss Federal Tax Administration;
(iv) in the case of a deduction of Swiss Withholding Tax:
(1) use its best efforts to ensure that any Person other than the Trustee which is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such payment in respect of Restricted Obligations, will, as soon as possible after such deduction (A) request a refund of the Swiss Withholding Tax under applicable law (including tax treaties) and (B) pay to the Trustee upon receipt any amounts so refunded; and
(2) if the Trustee is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such payment, shall provide the Trustee those documents that are required by law and applicable tax treaties to be released provided by the payer of such tax, in order to enable the Trustee to prepare a claim for refund of Swiss Withholding Tax. If a Swiss Guarantor is obliged to withhold Swiss Withholding Tax in accordance with the previous paragraph (b) above, the Trustee shall be entitled to further enforce the Guarantees or any other indemnity granted by the respective Swiss Guarantor under the Notes or this Indenture and discharged apply proceeds therefrom against the Restricted Obligations up to an amount which is equal to that amount which would have been obtained if no withholding of Swiss Withholding Tax were required, whereby such further enforcements shall always be limited to the maximum amount of the freely distributable capital of the respective Swiss Guarantor as set out in paragraph (a) above. If and to the extent a demand for payment against a Swiss Guarantor is made by the Trustee and if and to the extent required under Swiss mandatory law (with regards to restricting distributions) applicable at the relevant time, in order to allow the Trustee to obtain a maximum benefit under the Guarantees, the relevant Swiss Guarantor shall, and any parent company of the Swiss Guarantor being a party to this Indenture shall procure that the Swiss Guarantor will, promptly implement all such measures and/or promptly procure the fulfillment of all prerequisites allowing it to promptly make the (requested) payment(s) hereunder from time to time, including the following:
(i) preparation of an up-to-date audited balance sheet of the Swiss Guarantor;
(ii) obtain a confirmation of the auditors of the Swiss Guarantor confirming the maximum amount of the freely distributable capital of the relevant Swiss Guarantor;
(iii) approval by a shareholders’ meeting of the Swiss Guarantor of the capital distribution;
(iv) to the extent permitted by applicable law write up or realize any of the Swiss Guarantor’s assets that are shown in its balance sheet with a book value that is significantly lower than the market value of the assets, in case of realization, however, only if such assets are not necessary for the Swiss Guarantor’s business (nicht betriebsnotwendig); and
(v) all such other measures necessary or useful to allow the Swiss Guarantor to make the payments and perform the obligations hereunder with a minimum of limitations.
(l) The obligations and liabilities of each Guarantor incorporated in Sweden (each a “Swedish Guarantor”) incurred under its Guarantee shall be limited if (and only if) and to the extent required by the provisions of the Swedish Companies Act (Sw. Aktiebolagslagen (2005:551)) regulating (i) distribution of assets (Chapter 17, Sections 1-4 (or its equivalent from time to time)) and (ii) unlawful financial assistance and other prohibited loans and guarantees (Chapter 21, Section 5 (or its equivalent from time to time)), and it is understood that the obligations and liabilities of each Swedish Guarantor in its capacity as Guarantor under its Guarantee only applies to the extent permitted by the aforementioned provisions of the Swedish Companies Act.
(m) The obligations and liabilities of any Guarantor incorporated in France (each such Guarantor, a “French Guarantor”) under the Notes or this Indenture and in particular under this Article 10 at X shall not include any time upon written notice to obligation or liability which, if incurred, would constitute the Trustee from such direct or indirect parent provision of financial assistance within the meaning of article L.225-216 of the CompanyFrench Code de Commerce and/or would constitute a misuse of corporate assets within the meaning of articles L.242-6 or L.244-1 of the French Code de Commerce or any other law or regulation having the same effect, as interpreted by French courts.
Appears in 1 contract
Guarantees. (a) Each Guarantor hereby jointly The First Lien Notes and severally, irrevocably and unconditionally guarantees on a senior secured basis, as a primary obligor and not merely as a surety, to each Holder and to the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations under the indenture related thereto will be unconditionally guaranteed by each existing and subsequently acquired or organized wholly owned domestic subsidiary of the Company under this Indenture Issuer (including obligations the “Note Guarantors”), subject to exceptions consistent with the Trustee Documentation Precedent and Collateral Agent) and the Notes, whether for payment of principal of, premiumothers, if any, or interest to be set forth in the definitive documentation, on a senior first-priority secured basis (the “Note Guarantees”). The Note Guarantees will rank pari passu in all respects, including any interestin right of payment, fees, costs or charges that would accrue but for the provisions of (x) the Bankruptcy Code after any bankruptcy or insolvency petition with all obligations under the Bankruptcy Code and (y) any other debtor relief laws) on the Notes held by the Holders, all other monetary obligations of the Company under this Indenture and the Notes Credit Agreement and all other Second Lien Obligations and (ii) the full and punctual performance within applicable grace periods of all other obligations senior indebtedness of the Company whether for fees, expenses, indemnification or otherwise under this IndentureNote Guarantors. The Note Guarantees will be guarantees of payment and performance and not of collection. Security: Subject to the limitations set forth below and limitations consistent with the Documentation Precedent, the First Lien Notes and the Security Documents (Note Guarantees will be secured by a first-priority security interest in substantially all the foregoingowned material assets of the Issuer and each Note Guarantor, in each case strictly in accordance with whether owned on the terms of this IndentureClosing Date or thereafter acquired (collectively, the Intercreditor Agreement and the Security Documents being hereinafter collectively called the “Guaranteed ObligationsCollateral”). Each , including but not limited to: (a) a perfected first-priority pledge of all the equity interests directly held by the Issuer or any Note Guarantor further agrees that the Guaranteed Obligations may be extended or renewed(which pledge, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal the case of any Guaranteed Obligation.
foreign subsidiary, shall be limited to 100% of the non-voting equity interests (if any) and 65% of the voting equity interests of such foreign subsidiary) (b) Each a perfected first priority lien on cash, deposit accounts and securities accounts, and (c) perfected first-priority security interests in, and mortgages on, substantially all owned tangible and intangible assets of the Issuer and each Note Guarantor waives presentation (including, but not limited to, demand accounts receivable, inventory, equipment, general intangibles, investment property, intellectual property and real property (including an assignment of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest rents)) except for nonpayment. Each Guarantor waives 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 Holderreal property with a fair market value less than $15.0 million and leaseholds, Trustee or Collateral Agent to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (viw) any change in the ownership of such Guarantorvehicles, except (x) those assets as provided in Section 10.02(b).
(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. 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(f) Except as set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as set forth in Sections 8.01 and 10.02, 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders, the Trustee Issuer and Collateral Agent in respect shall reasonably determine that the costs or other consequences of the Guaranteed Obligations.
(h) Each Guarantor agrees that it shall not be entitled to any right of subrogation obtaining such a security interest are excessive in relation to the Holders value of the security to be afforded thereby, (y) assets to which the granting or perfecting such security interest would violate any applicable law (including gaming laws and regulations) or contract (and with regard to which contract the counterparty thereto requires such prohibition as a condition to entering into such contract, such contract has been entered into in respect the ordinary course of any Guaranteed Obligations guaranteed hereby until payment business, such restriction is consistent with industry custom and consent has been requested and not received), and (z) other exceptions consistent with the Documentation Precedent; and provided that the pledge of equity interests and other securities will be subject to customary Rule 3-16 cut-back provisions. For avoidance of doubt, lockbox arrangements and control agreements relating to the Issuer’s and its subsidiaries’ bank accounts and securities accounts will be required to be delivered at closing. The operating lease with [Caesars Entertainment Operating Company, Inc.] shall be subject to a customary subordination and non-disturbance agreement as provided in full the Lease Term Sheet attached to the Restructuring Support Agreement. All the above-described pledges, security interests and mortgages shall be created on terms, and pursuant to documentation, consistent with the Documentation Precedent. The relative rights and priorities in the Collateral for each of all Guaranteed Obligations. Each Guarantor further agrees thatthe Credit Agreement and the First Lien Notes will be set forth in the First Lien Intercreditor Agreement, as between itthe administrative agent for the Credit Agreement, on the one hand, and the Holders, trustee for the Trustee and Collateral AgentFirst Lien Notes, on the other hand, (i) which intercreditor agreement shall provide that the maturity of indebtedness outstanding under the Guaranteed Obligations guaranteed hereby may be accelerated Credit Agreement and the First Lien Notes vote together as provided one class and are pari passu in Article 6 for the purposes of any Guarantee hereinall respects, notwithstanding any stay, injunction or other prohibition preventing such acceleration including in respect of directing the Guaranteed Obligations guaranteed herebycollateral agent thereunder. The relative rights and priorities in the Collateral for each of the Credit Agreement, the First Lien Notes and the Second Lien Notes will be set forth in the First Lien/Second Lien Intercreditor Agreement, as between the collateral agent for the Credit Agreement and the First Lien Notes, on the one hand, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor collateral agent for the purposes of this Section 10.01Second Lien Notes, on the other hand.
(i) Each Guarantor also agrees to pay any and all fees and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Sources: Restructuring Support and Forbearance Agreement (Caesars Entertainment Operating Company, Inc.)
Guarantees. If the Escrow Agreement is effective, prior to the Acquisition Date the Issuer's obligations under this Indenture and the Notes shall be guaranteed by Holdings, as provided in this Article 10. Thereafter, on the Acquisition Date, each of the Issuer's direct and indirect Restricted Subsidiaries that guarantees Indebtedness under the Credit Agreement (other than any License Subsidiary) shall execute a supplemental indenture substantially in the form of EXHIBIT J and shall guarantee the Issuer's obligations under this Indenture and the Notes, as provided in this Article 10.
(a) Each Guarantor hereby jointly and severally, irrevocably and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor and not merely as a surety, to each Holder and to the Trustee and its successors and assigns (i) the full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Company Issuer under this Indenture (including obligations to the Trustee and Collateral AgentTrustee) and the Notes, 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 additional interest in respect of (x) the Bankruptcy Code after any bankruptcy or insolvency petition under the Bankruptcy Code and (y) any other debtor relief laws) on the Notes held by the Holders, and all other monetary obligations of the Company Issuer 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 Issuer whether for fees, expenses, indemnification or otherwise under this Indenture, Indenture and the Notes and the Security Documents (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Obligations”"GUARANTEED OBLIGATIONS"). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives 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, Holder or the Trustee or Collateral Agent to assert any claim or demand or to enforce any right or remedy against the Company 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, if any, security held by any Holder, Holder or the Trustee or Collateral Agent for the Guaranteed Obligations or any Guarantor; (v) the failure of any Holder, Holder or 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 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 '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 Issuer first be used and depleted as payment of the Company’s Issuer's or such Guarantor’s '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 Issuer be sued prior to an action being initiated against such Guarantor.
(d) 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, Holder or the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 8.01, 10.02 and 10.0210.06, 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 compromisecom- promise, 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, Holder or the Trustee or Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(f) Except as expressly set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Except as expressly set forth in Sections 8.01 and 10.02, 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder, Holder or the Trustee or Collateral Agent upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder, Holder or the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuer to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, Holders or the Trustee or Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company Issuer to the Holders, Holders and the Trustee and Collateral Agent in respect of the Guaranteed Obligations.
(h) Each 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 it, on the one hand, and the Holders, Holders and the Trustee and Collateral AgentTrustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(i) Each Guarantor also agrees to pay any and all fees costs and expenses (including reasonable attorneys’ ' fees and expenses) incurred by the Trustee, the Collateral Agent Trustee or any Holder in enforcing any rights under this Section 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) Any Guarantee given by any direct or indirect parent of the Company may be released and discharged from all obligations under this Article 10 at any time upon written notice to the Trustee from such direct or indirect parent of the Company.
Appears in 1 contract
Sources: Indenture (Intelsat LTD)
Guarantees. (a) Each Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees on a senior secured basisguarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder and Holder, to the extent lawful, the Trustee and its successors and assigns (i) the Agent the full and punctual payment and performance when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee and Collateral Agent) and the Notes, whether for payment of principal of, premium, if any, or and 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 Notes held by the Holders, and all other monetary obligations Obligations of the Company Issuers under this Indenture and the Notes and all other Second Lien Obligations and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuers or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture, the Notes post-petition interest is allowed in such proceeding and the Security Documents obligations under Section 7.6) (all the foregoing, in each case strictly in accordance with the terms of this Indenture, the Intercreditor Agreement and the Security Documents foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further 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 each such Guarantorit, and that each such Guarantor it shall remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuers of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Guarantor Obligations. The .
(c) Each Guarantor further agrees that its 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 Guarantor Obligations.
(d) Except as set forth in this Article X, Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (ia) the failure of any Holder, the Trustee or Collateral Agent Holder to assert any claim or demand or to enforce any right or remedy against the Company Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (iib) any extension or renewal of this Indenture, the Notes or any other agreementthereof; (iiic) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (ivd) the release of any security, if any, security held by any Holder, the Trustee or Collateral Agent Holder for the Guaranteed Guarantor Obligations or any Guarantorof them; (ve) the failure of any Holder, Trustee or Collateral Agent Holder to exercise any right or remedy against any other guarantor of the Guaranteed ObligationsGuarantor; or (vif) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
(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. 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 Issuers 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 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, the Trustee or Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01 and 10.02, 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, the Trustee or Collateral Agent 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 Guarantor; (g) any default, failure or delay, willful or otherwise, in the performance of the obligations, Guarantor Obligations; or by (h) 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 Guarantor or would otherwise operate as a discharge of any such Guarantor as a matter of law or equity.
(fe) Except as set forth in Sections 8.01 and 10.02, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 or Article VIII. Except as set forth in Sections 8.01 and 10.02, each 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 of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder, the Trustee or Collateral Agent Holder upon the bankruptcy or reorganization of the Company Issuers or otherwise.
(gf) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or Collateral Agent Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuers to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the HoldersTrustee, the Agents or the Trustee or Collateral Agent on behalf of the Holders and such Agents an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, 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 applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the Holders, the Trustee and Collateral Agent Issuers or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in respect of the Guaranteed Obligationssuch proceeding).
(hg) Each 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 itsuch Guarantor, on the one hand, and the Holders, the Trustee and Collateral Agent, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article 6 this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article 6Guarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(ih) Each Guarantor also agrees to pay any and all fees reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee, the Collateral Agent or any Holder the Holders in enforcing any rights under this Section 10.01Section.
(i) Each Guarantor acknowledges and agrees that the Guarantee of such Guarantor will be a general senior obligation of such Guarantor and will rank senior in right of payment to all future obligations of such Guarantor that are, by their terms, expressly subordinated in right of payment to such Guarantee and equal in right of payment with all existing and future obligations of such Guarantor that are not so subordinated.
(j) Upon request Neither the Issuers nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity 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 Indentureany Guarantee.
(k) Any Each Guarantee given 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.
(i) The obligations and liabilities of any Guarantor incorporated in France (each such Guarantor, a “French Guarantor”) under the Notes or this Indenture and in particular under this Article X shall not include any obligation or liability which, if incurred, would constitute the provision of financial assistance within the meaning of article L.225-216 of the French Code de Commerce and/or would constitute a misuse of corporate assets within the meaning of articles L.242-6 or L.244-1 of the French Code de Commerce or any other law or regulation having the same effect, as interpreted by French courts.
(ii) The obligations and liabilities of each French Guarantor under this Article X for the obligations under the Notes or this Indenture of any other obligor which is not a Subsidiary of such French Guarantor shall be limited, at any time to an amount equal to the proceeds from the offering of the Notes which the Issuers have applied for the direct or indirect parent benefit of each French Guarantor through the Company may intercompany loan agreements and cash pooling arrangements that are outstanding on the date a payment is requested to be released and discharged from all obligations made by such French Guarantor under this Article 10 at X; it being specified that any time upon written notice to the Trustee from such direct or indirect parent payment made by a French Guarantor under this Article X in respect of the Companyobligations of the Issuers shall reduce pro tanto the outstanding amount due by such French Guarantor under the intercompany loan agreements or cash pooling arrangements referred to above and that any repayment of the intercompany loans or of the cash pooling arrangements by the French Guarantor shall reduce pro tanto the amount payable under this Article X.
(iii) The obligations and liabilities of each French Guarantor under this Article X for the obligations under the Notes or this Indenture of any other obligor which is its Subsidiary shall not be limited, and shall therefore cover all amounts due by such obligor. However, where such Subsidiary is itself a Guarantor that guarantees the obligations of an obligor that is not a Subsidiary of the relevant French Guarantor, the amounts payable by such French Guarantor under this paragraph (iii) in respect of the obligations of this Subsidiary as Guarantor, shall be limited as set out in paragraph (ii) above.
(m) With respect to any German Guarantor (as defined below), the following limitations and defenses in relation to such German Guarantor’s obligations and liabilities under its Guarantee shall apply:
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Sources: Indenture (Ortho Clinical Diagnostics Holdings PLC)