Guarantees. Subject to the provisions of this Article XI, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) the principal of, premium and interest on the Notes shall be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if any, to the extent lawful, and all other Obligations of the Issuers to the Holders or the Trustee under the Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of the Indenture and the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guarantees.
Appears in 5 contracts
Sources: Fifteenth Supplemental Indenture (Markwest Energy Partners L P), Thirteenth Supplemental Indenture (Markwest Energy Partners L P), Tenth Supplemental Indenture (Markwest Energy Partners L P)
Guarantees. Subject There shall be included in determining Consolidated EBITDA for any period, without duplication, (A) the Acquired EBITDA of any Person, property, business or asset acquired by the Borrower or any Restricted Subsidiary during such period (but not the Acquired EBITDA of any related Person, property, business or assets to the provisions of this Article XI, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) the principal of, premium and interest on the Notes shall be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if anyextent not so acquired), to the extent lawfulnot subsequently sold, transferred or otherwise disposed by the Borrower or such Restricted Subsidiary during such period (each such Person, property, business or asset acquired and not subsequently so disposed of, an “Acquired Entity or Business”) and the Acquired EBITDA of any Unrestricted Subsidiary that is converted into a Restricted Subsidiary during such period (each, a “Converted Restricted Subsidiary”), based on the actual Acquired EBITDA of such Acquired Entity or Business or Converted Restricted Subsidiary for such period (including the portion thereof occurring prior to such acquisition) and (B) for the purposes of compliance with the covenant set forth in Section 7.09 and the calculation of the Consolidated First Lien Net Leverage Ratio, the Consolidated Secured Net Leverage Ratio, the Consolidated Total Net Leverage Ratio, and all other Obligations the Consolidated Interest Coverage Ratio, an adjustment in respect of each Acquired Entity or Business equal to the amount of the Issuers Pro Forma Adjustment with respect to such Acquired Entity or Business for such period (including the portion thereof occurring prior to such acquisition) as specified in a certificate executed by a Responsible Officer and delivered to the Holders or the Trustee under the Indenture Lenders and the Notes Administrative Agent. There shall be promptly paid excluded in full determining Consolidated EBITDA for any period the Disposed EBITDA of any Person, property, business or performedasset (other than an Unrestricted Subsidiary) sold, all in accordance with transferred or otherwise disposed of or, closed or classified as discontinued operations (but if such operations are classified as discontinued due to the terms fact that they are subject to an agreement to dispose of such operations, only when and to the extent such operations are actually disposed of) by the Borrower or any Restricted Subsidiary during such period (each such Person, property, business or asset so sold or disposed of, a “Sold Entity or Business”) and the Disposed EBITDA of any Restricted Subsidiary that is converted into an Unrestricted Subsidiary during such period (each a “Converted Unrestricted Subsidiary”), based on the actual Disposed EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary for such period (including the portion thereof occurring prior to such sale, transfer or disposition). Notwithstanding anything to the contrary contained herein, for purposes of determining Consolidated EBITDA under this Agreement for any period that includes any of the Indenture fiscal quarters ended on December 31, 2019, March 31, 2020, June 30, 2020 and the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of September 30, 2020, Consolidated EBITDA for such other Obligations, that same fiscal quarters shall be promptly paid $17,981,000, $17,210,000, $13,997,000 and $18,892,000, respectively, in full when due or performed in accordance with the terms of the extension or renewaleach case, as may be subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due of adjustment set forth in the immediately preceding paragraph for any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes four-quarter period with respect to any provisions of acquisitions, dispositions or conversions occurring after the Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these GuaranteesClosing Date.
Appears in 4 contracts
Sources: Credit Agreement (Legence Corp.), Credit Agreement (Legence Corp.), Credit Agreement (Legence Corp.)
Guarantees. Subject to the provisions of this Article XI, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) Seller shall use its commercially reasonable efforts to cause Seller or one or more of its Affiliates to be substituted in all respects for the principal Nordic Companies, as applicable, and for the Nordic Companies, as applicable, to be otherwise removed or released, effective as of the Closing, in respect of all obligations of any of the Nordic Companies, as applicable, under each guarantee, indemnity, surety bond, letter of credit and letter of comfort (each, a “Guarantee”), given or obtained by any of the Nordic Companies, as applicable, for the benefit of any of Seller or any of its Affiliates (other than the Nordic Companies). If Seller has been unable to effect any such substitution, removal, release or termination with respect to any such Guarantee following the Closing, Seller shall continue to use its commercially reasonable efforts to effect such substitution, removal, release or termination as soon as reasonably practicable after the Closing; provided, that from and after Closing, Seller shall indemnify against, hold harmless and promptly reimburse the Nordic Companies or their respective Affiliates for any payments made by the Nordic Companies or their respective Affiliates and for the Losses of the Nordic Companies or their respective Affiliates arising out of, premium and interest on the Notes shall be promptly paid or in full when dueperforming, whether at the maturity in whole or interest payment or mandatory redemption datein part, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if any, to the extent lawful, and all other Obligations of the Issuers to the Holders or the Trustee under the Indenture and the Notes shall be promptly paid in full or performed, all any performance obligation in accordance with the terms underlying obligation under any such Guarantee (except to the extent the performance obligation under any such Guarantee shall have been triggered solely by an act or failure to act of the Indenture and applicable guarantor (rather than the Notes; and underlying obligor)).
(b) Seller shall use its commercially reasonable efforts to cause one or more of the Nordic Companies to be substituted in case all respects for Seller or its Affiliates (other than the Nordic Companies), and for Seller or its Affiliates (other than the Nordic Companies), as applicable, to be otherwise removed or released, effective as of the Closing, in respect of all obligations of Seller or its Affiliates (other than the Nordic Companies), as applicable, under each Guarantee given or obtained by Seller or its Affiliates (other than the Nordic Companies), as applicable, for the benefit of any extension of time of payment the Nordic Companies. If Seller has been unable to effect any such substitution, removal, release or renewal of termination with respect to any Notes such Guarantee following the Closing, Seller shall continue to use its commercially reasonable efforts to effect such substitution, removal, release or any of such other Obligationstermination as soon as reasonably practicable after the Closing; provided, that same from and after the Closing, Buyer shall be indemnify against, hold harmless and promptly paid reimburse Seller for any payments made by Seller or its Affiliates and for the Losses of Seller or its respective Affiliates arising out of, or in full when due performing, in whole or performed in part, any performance obligation in accordance with the terms of the extension or renewal, subject to underlying obligation under any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance such Guarantee (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, the performance obligation under any such Guarantee shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled have been triggered solely by an act or failure to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity act of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for applicable guarantor (rather than the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guaranteesunderlying obligor)).
Appears in 4 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Coca-Cola Enterprises, Inc.), Share Purchase Agreement (Coca Cola Co)
Guarantees. Subject to Purchaser acknowledges that in the provisions course of this Article XIconduct of their business, each of the Subsidiary Guarantors hereby, jointly Sellers and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: their Affiliates may have entered into various arrangements (a) the principal ofin which guarantees, premium and interest on the Notes shall be promptly paid in full when dueletters of credit, whether at the maturity sureties, bonds or interest payment similar arrangements were issued by Sellers or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if any, to the extent lawful, and all other Obligations of the Issuers to the Holders or the Trustee under the Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of the Indenture and the Notes; their Affiliates and (b) in which Sellers or their Affiliates are the primary obligors on other Contracts, in any such case to support or facilitate such business. The arrangements entered into by Sellers or their Affiliates referred to in the foregoing clauses (a) and (b), solely to the extent relating to any Acquired Assets or Assumed Liabilities set forth in Schedule 6.10, are referred to as the “Seller Support Obligations”. It is understood that the Seller Support Obligations are not intended to continue after the Closing. Purchaser agrees that it shall use its reasonable best efforts to obtain replacements for the Seller Support Obligations (which shall include the full and unconditional release of Sellers and their Affiliates) that will be in effect at the Closing or, in the case of any extension Seller Support Obligations described in the foregoing clause (b), will use its commercially reasonable efforts to arrange for itself or one of time its Subsidiaries to be substituted as the primary obligor thereon as of payment the Closing through an assumption, accession, acknowledgement or renewal similar agreement (which shall include the full and unconditional release of any Notes Sellers and their Affiliates) with the beneficiary of the applicable Seller Support Obligation. Whether or any of such other Obligations, that same shall be promptly paid in full when due or performed in accordance with not Purchaser is able to satisfy the terms of the extension or renewalimmediately preceding sentence, subject to Purchaser shall indemnify Sellers and their Affiliates and each of their respective officers, directors, employees, agents and representatives from and against any applicable grace period, whether at Stated Maturity, and all Liabilities incurred by acceleration or otherwise. Failing payment when so due any of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that them relating to the fullest extent permitted by applicable lawSeller Support Obligations. Purchaser agrees that, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions Seller Support Obligation, its reasonable best efforts pursuant to this Section 6.10 shall include, if requested, the execution and delivery by Purchaser, or by an Affiliate of Purchaser acceptable to the beneficiary of such Seller Support Obligation, of a replacement guarantee that is substantially in the form of such Seller Support Obligation. All costs and expenses incurred in connection with providing the release or substitution of the Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, Seller Support Obligations shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable borne by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these GuaranteesPurchaser.
Appears in 4 contracts
Sources: Asset Purchase Agreement (XPO, Inc.), Asset Purchase Agreement (Yellow Corp), Asset Purchase Agreement (Saia Inc)
Guarantees. Subject to the provisions of this Article XI, each of the Subsidiary Guarantors hereby, jointly and severally(a) The Parent Guarantor hereby fully, unconditionally and irrevocably guarantees (the “Guarantee”) to each Holder of a Note the Notes authenticated and delivered by the Trustee Trustee, and to the Trustee and its successors and assigns, irrespective the due and punctual payment of the validity and enforceability of the Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) the principal of, premium and interest on the Notes shall be promptly paid in full when duepremium, whether at the maturity or interest payment or mandatory redemption dateif any, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if anysubject to any applicable grace period, to the extent lawfulwhether at stated maturity, by acceleration, by redemption or otherwise, and the due and punctual performance of all other Obligations obligations of the Issuers Company, to the Holders or the Trustee under the Indenture and the Notes shall be promptly paid in full or performed, all this Supplemental Indenture in accordance with the terms of the Indenture hereof and the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediatelythereof. The Subsidiary Guarantors Parent Guarantor hereby agree agrees that to the fullest extent permitted by applicable law, their its obligations hereunder shall be unconditional, irrespective of the validity, regularity validity or enforceability of the Notes or the obligations of the Company under the Indenture and this Supplemental Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Notes, the recovery of any judgment against the IssuersCompany or any other obligor with respect to the Indenture, this Supplemental Indenture or the Notes, any action to enforce the same or any other circumstance circumstances (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To guarantor; provided, however, that nothing contained herein shall be constituted to be a waiver by the fullest extent permitted by applicable law, each Subsidiary Parent Guarantor hereby waives diligence, presentment, of presentment or demand of payment, filing payment or notice to the Parent Guarantor with respect to the Notes and the obligations evidenced thereby or hereby. The Parent Guarantor further waives any right of claims with a court in the event of insolvency set-off or bankruptcy counterclaim it may have against registered owners of the Issuers, Notes arising from any right to require a proceeding first against other obligations of the Issuers, protest, notice and all demands whatsoever and Parent Guarantor that any such registered owners may have. The Parent Guarantor covenants that its this Guarantee shall will not be discharged except by complete performance of the obligations contained in the Indenture, this Supplemental Indenture and the Notes. The Parent Guarantor shall be subrogated to all rights of the registered owners of the Notes in respect of any amounts paid by the Parent Guarantor pursuant to the provisions of this Section 2.10; provided, however, that the Parent Guarantor shall be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation only after the principal of, premium, if any, and interest on the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return all other amounts owed to the Issuers registered owners of the Notes hereunder have been paid in full. The Guarantee shall continue to be effective or Subsidiary Guarantorsreinstated, as the case may be, if at any time any payment of the principal of, premium, if any, or interest on the Notes or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them amounts owed to the Trustee registered owners of the Notes hereunder or thereunder is rescinded or must otherwise be returned by such registered owners upon the insolvency, bankruptcy or reorganization of the Parent Guarantor, the Company or otherwise, all as though such payment had not been made.
(b) The Parent Guarantor, and by its acceptance of Notes, each Holder, these Guarantees, hereby confirms that it is the intention of all such parties that the Guarantee of the Parent Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law or any similar federal or state law to the extent theretofore dischargedapplicable to its Guarantee. To effectuate the foregoing intention, shall the Trustee, the Holders and the Parent Guarantor hereby irrevocably agree that the obligations of the Parent Guarantor will be reinstated limited to the maximum amount that will, after giving effect to such maximum amount and all other contingent and fixed liabilities of the Parent Guarantor that are relevant under such laws, result in the obligations of the Parent Guarantor under its Guarantee not constituting a fraudulent transfer or conveyance.
(c) The terms of the Guarantee set forth in this Section 2.10 do not require the Parent Guarantor to evidence its Guarantee through any notation of the Guarantee endorsed by an Officer of the Parent Guarantor on each Note authenticated and delivered by the Trustee. This Supplemental Indenture will be executed on behalf of the Parent Guarantor by one of its Officers. The Guarantee set forth in this Section 2.10 will remain in full force and effecteffect without any requirement to endorse on each Note a notation of the Note Guarantee. Each Subsidiary If an Officer of the Parent Guarantor agrees whose signature is on this Supplemental Indenture no longer holds that it shall not office at the time the Trustee authenticates any Note, the Guarantee will be entitled to any right of subrogation in relation to the Holders in respect valid nevertheless. The delivery of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and Note by the Trustee, on after the other handauthentication thereof, (x) the maturity will constitute due delivery of the Obligations guaranteed hereby may be accelerated as provided Guarantee set forth in Article VII hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect this Supplemental Indenture on behalf of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these GuaranteesParent Guarantor.
Appears in 3 contracts
Sources: Third Supplemental Indenture (Labcorp Holdings Inc.), First Supplemental Indenture (Labcorp Holdings Inc.), Second Supplemental Indenture (Labcorp Holdings Inc.)
Guarantees. (a) Subject to the provisions of this Article XI13, each of the Subsidiary Guarantors hereby, as a primary obligor and not merely as surety, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee, the Collateral Trustee and its their successors and assigns, irrespective of the validity and enforceability of the this Indenture, the Notes or the other Obligations obligations of the Issuers Company hereunder or thereunder, that: :
(ai) the principal of, premium premium, if any, and interest on on, the Notes shall and such other Note Obligations will be promptly paid in full in cash when due, whether at the maturity or interest payment or mandatory redemption datematurity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium of and interest on the Notes, if any, to the extent if lawful, and all other Obligations obligations of the Issuers Company to the Holders Holders, the Trustee or the Collateral Trustee under the Indenture and the Notes shall hereunder or thereunder will be promptly paid in full in cash or performed, all in accordance with the terms of the Indenture hereof and the Notes; and thereof, and
(bii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations (including Note Obligations), that same shall will be promptly paid in full in cash when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturitymaturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(b) The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be are unconditional, irrespective of the validity, regularity or enforceability of the Notes or the this Indenture, the absence of any action to enforce the same, any amendment, waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Noteshereof or thereof, the recovery of any judgment against the IssuersCompany or any other Guarantor, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Each Guarantor hereby unconditionally and irrevocably waives and agrees not to assert any claim, defense, setoff or counterclaim based on diligence, promptness, presentment, requirements for any demand of payment, filing of claims with a court in the event of insolvency or bankruptcy notice hereunder including any of the Issuersfollowing: (i) any demand for payment or performance and protest and notice of protest; (ii) any notice of acceptance; (iii) any presentment, demand, protest or further notice or other requirements of any kind with respect to any Note Obligation (including any accrued but unpaid interest thereon) becoming immediately due and payable; and (iv) any other notice in respect of any Note Obligation or any part thereof, and any defense arising by reason of any disability or other defense of the Company or any Guarantor. Each Guarantor further unconditionally and irrevocably agrees not to (x) enforce or otherwise exercise any right of subrogation or any right of reimbursement or contribution or similar right against the Company or any Guarantor by reason of any Transaction Document or any payment made thereunder or (y) assert any claim, defense, setoff or counterclaim it may have against the Company or any other Guarantor or set off any of its obligations to the Company or any other Guarantor against obligations of such Guarantor to the Company or such other Guarantor. No obligation of any Guarantor hereunder shall be discharged other than by complete performance. Each Guarantor further waives any right such Guarantor may have under any applicable requirement of law to require a proceeding the Trustee, the Collateral Trustee or any Holder to seek recourse first against the IssuersCompany or any other Person, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance or to realize upon any Collateral for any of the Note Obligations, as a condition precedent to enforcing such Guarantor’s liability and obligations contained in the Notes and the Indenture. under this Article 13.
(c) If any Holder Holder, the Trustee or the Collateral Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by the Company or any of them Guarantor to the Trustee, the Collateral Trustee or such Holder, these Guaranteesthis Guarantee, to the extent theretofore discharged, shall will be reinstated in full force and effect. .
(d) Each Subsidiary Guarantor agrees that it shall will not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations obligations guaranteed hereby until payment in full in cash of all Obligations obligations (including the Note Obligations) guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders Holders, the Trustee and the Collateral Trustee, on the other hand, (x1) the maturity of the Obligations obligations guaranteed hereby may be accelerated as provided in Article VII hereof Section 6.02 for the purposes of these Guaranteesthis Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations obligations guaranteed hereby, and (y2) in the event of any declaration of acceleration of such Obligations obligations as provided in Article VII hereof6, such Obligations obligations (whether or not due and payable) shall will forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guaranteesthis Guarantee.
(e) Without limiting the joint and several obligations of the Guarantors to the Trustee, Collateral Trustee and Holders, all Guarantors desire to allocate among themselves (collectively, the “Contributing Guarantors”), in a fair and equitable manner, their 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 of the Notes such that its Aggregate Payments exceed its Fair Share as of such date, such Funding Guarantor shall be entitled to a contribution from each of the other Contributing Guarantors in an amount sufficient to cause each Contributing Guarantor’s Aggregate Payments to equal its Fair Share as of such date. “Fair Share” means, with respect to a Contributing Guarantor as of any date of determination, an amount equal to (a) the ratio of (i) 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 its guarantee of the Notes 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 of the Notes 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 13.01, 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 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 distributions made on or before such date by such Contributing Guarantor in respect of its guarantee of the Notes (including in respect of this Section 13.01), minus (2) the aggregate amount of all payments received on or before such date by such Contributing Guarantor from the other Contributing Guarantors as contributions under this Section 13.01. The Subsidiary 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 Guarantor is a third-party beneficiary to the contribution agreement set forth in this Section 13.01. Notwithstanding anything to the contrary, the Guarantors shall not have the right to seek contribution from the Company and any non-paying Subsidiary Guarantor so long as the exercise until payment in full in cash of such right does not impair the rights of the Holders under these Guaranteesall Note Obligations.
Appears in 3 contracts
Sources: Indenture (Electra Battery Materials Corp), Indenture (Electra Battery Materials Corp), Indenture (Electra Battery Materials Corp)
Guarantees. Subject to the provisions of this Article XI11, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the this Indenture, the Notes or the other Obligations obligations of the Issuers Company hereunder or thereunder, that: (a) the principal and premium, if any, of, premium and interest on and Special Interest, if any, on, the Notes shall will be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption datematurity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, premium and interest on and Special Interest, if any, on, the Notes, if any, to the extent if lawful, and all other Obligations obligations of the Issuers Company to the Holders or the Trustee under the Indenture and the Notes shall hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms of the Indenture hereof and the Notesthereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligationsobligations, that same shall will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturitystated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Noteshereof or thereof, the recovery of any judgment against the IssuersCompany, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantorguarantor. To the fullest extent permitted by applicable law, each Subsidiary Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the IssuersCompany, any right to require a proceeding first against the IssuersCompany, protest, notice and all demands whatsoever and covenants covenant that its this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary GuarantorsCompany, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers Company or Subsidiary the Guarantors, any amount paid by any of them either to the Trustee or such Holder, these Guaranteesthis Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations obligations guaranteed hereby until payment in full of all Obligations obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations obligations guaranteed hereby may be accelerated as provided in Article VII 6 hereof for the purposes of these Guaranteesthis Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations obligations as provided in Article VII 6 hereof, such Obligations obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guaranteesthis Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guaranteesthe Guarantee.
Appears in 3 contracts
Sources: Indenture (Asbury Automotive Group Inc), Indenture (Asbury Automotive Group Inc), Indenture (Asbury Automotive Group Inc)
Guarantees. Subject (a) The payment by the Company of all amounts due with respect to the provisions Notes and the performance by the Company of its obligations under this Agreement will be absolutely and unconditionally guaranteed by the Reporting Entity (if the Reporting Entity is New STERIS Limited) and the Affiliates of the Reporting Entity (other than the Company) that guarantee the obligations of the obligors under the Bank Credit Agreement (together with any additional Affiliate who delivers a guaranty pursuant to Section 9.7, the “Guarantors”) pursuant to the guaranty agreement substantially in the form of Exhibit 2.2(a) attached hereto and made a part hereof (as the same may be amended, modified, extended or renewed, the “Affiliate Guaranty”).
(b) Any instruments, documents and agreements pursuant to which the Reporting Entity or any Subsidiary agrees to grant Liens in favor of a collateral agent (the “Collateral Agent”) for the benefit of the holders of Notes are hereinafter referred to as the “Collateral Documents”. The Collateral Documents and the Affiliate Guaranties are hereinafter collectively referred to as the “Security Documents.”
(c) [Reserved].
(d) If at any time the Reporting Entity or any Affiliate shall grant to any one or more of the Creditors security of any kind or provide any one or more of the Creditors with additional guaranties or other credit support of any kind pursuant to the requirements of a Material Credit Facility, then the Reporting Entity or such Affiliate shall grant to the holders of the Notes the same security or guaranty so that the holders of the Notes shall at all times be secured on an equal and pro rata basis with such Creditors. All such additional guaranties or security shall be given to the holders of the Notes pursuant to Section 9.7 or 9.8, as applicable, of this Article XI, each Agreement.
(e) The holders of the Subsidiary Guarantors herebyNotes agree that the obligations of any Affiliate (other than New STERIS Limited if such entity is the Reporting Entity) under the Affiliate Guaranty and the Liens of the Collateral Documents in respect of all or any part of the collateral therein described shall be automatically released and discharged without the necessity of further action on the part of the holders of the Notes if, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee extent, (i) the corresponding guaranty or Lien given pursuant to the terms of any Material Credit Facility is released and (ii) no Default or Event of Default shall have occurred and then be continuing or result therefrom (or should any Default or Event of Default then exist or result, at such later time as any such Default or Event of Default shall cease to exist or result therefrom), provided that in the event the Reporting Entity or any Affiliate shall again become obligated under or with respect to the previously discharged Affiliate Guaranty, or again grant the discharged Lien, as the case may be, pursuant to the terms and provisions the relevant Material Credit Facility, then the Lien granted by the Reporting Entity or its successors Subsidiaries under a Collateral Document or the obligations of such Affiliate under the Affiliate Guaranty, as the case may be, shall be reinstated and assignsany release thereof previously given shall be deemed null and void, irrespective and such Affiliate Guaranty shall again benefit the holders of the validity Notes on an equal and enforceability pro rata basis. Any release by the holders of the Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (aunder this Section 2.2(e) the principal of, premium and interest on the Notes shall be promptly paid in full when duedeemed to have occurred concurrently with the release and discharge under the Material Credit Facilities. Further, whether at the maturity any reinstatement of an Affiliate Guaranty or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if any, Lien pursuant to the extent lawful, and all other Obligations of the Issuers to the Holders or the Trustee under the Indenture and the Notes terms hereof shall be promptly paid in full or performed, all in accordance comply with the terms of the Indenture Sections 9.7 and the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately9.8 hereof. The Subsidiary Guarantors hereby agree that to Reporting Entity shall promptly notify the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability holders of the Notes or the Indenture, the absence of any action release of an Affiliate Guaranty pursuant to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture this Section 2.2(e) and the Notes, the recovery shall deliver evidence of any judgment against the Issuers, any action to enforce the same release or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court guaranty or Lien in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guaranteescustomary form.
Appears in 3 contracts
Sources: Note Purchase Agreement (Steris Corp), Note Purchase Agreement (Steris Corp), Note Purchase Agreement (Steris Corp)
Guarantees. Subject of accommodation Any guarantee given by us in our Accommodation brochure or website to allocate accommodation to you shall cease to have effect if this Agreement is terminated. Inventory Means the list of furniture and equipment at the Accommodation which will be provided to you in your Accommodation on arrival. University/We The University of Reading, being an independent corporation with charitable status established by Royal Charter with number RC000665 whose registered office is at Whiteknights, PO Box 217, Reading RG6 6AH and includes all buildings from time to time belonging to the provisions of this Article XI, each University or managed by or on behalf of the Subsidiary Guarantors herebyUniversity Contact Details Any notice about this Agreement should be sent to ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇.▇▇ You The person named in the Offer (where the Tenant is more than one person, jointly obligations are undertaken both individually and severally, unconditionally guarantees to each Holder of a Note authenticated together and delivered by you as the Trustee person named in this Agreement shall be responsible for all acts and to the Trustee and its successors and assigns, irrespective omissions of the validity same as if their acts and enforceability of omissions were carried out by you) Accommodation The room(s) to which the Indenture, Offer relates Flat The flat (if any) in which the Notes Accommodation is situated and “a flat” means the Flat or the any other Obligations of the Issuers hereunder or thereunder, that: (a) the principal of, premium and interest on the Notes shall be promptly paid in full when due, whether flat at the maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if any, to the extent lawful, and all other Obligations Hall Hall The University’s hall of the Issuers to the Holders or the Trustee residence at which you reside under the Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of this contract Licence Fee The amount payable as rent as stated to in the Indenture Offer Period of Residence The term of weeks as referred to in the Offer Security Deposit The sum of £250 Policies and Procedures Means the Notes; University's policies and procedures which can be reviewed at: ▇▇▇▇://▇▇▇▇▇▇▇.▇▇▇▇▇▇▇.▇▇.▇▇/essentials/_the-important-stuff/an-a-to-z-of-policies-and-procedures.aspx Managing Agent UPP Reading Ltd, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, Offer Means your offer of accommodation as issued by the University Visitors Means any guest invited by you, whether that invitation is express or implied (beg where the guest assumes from what you have said or done that they have been invited) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that same shall be promptly paid in full when due or performed in accordance with person visiting you at the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these GuaranteesAccommodation.
Appears in 3 contracts
Sources: Terms and Conditions of Residence, Terms and Conditions of Residence, Terms and Conditions of Residence
Guarantees. Subject to the provisions of this Article XI, each of the Subsidiary Guarantors herebyEach Guarantor, jointly and severally, unconditionally guarantees guarantees, on an unsecured senior basis, to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the this Indenture, the Notes or the other Obligations of the Issuers hereunder under this Indenture or thereunderthe Notes, that: (ai) the principal of, premium premium, if any, and interest and Liquidated Damages, if any, on the Notes shall will be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption date, by acceleration, redemption call for redemption, offer to purchase or otherwise, and interest on the overdue principal of, premium premium, and interest on the Notesand Liquidated Damages, if any, to on the extent lawful, Notes and all other Obligations of the Issuers to the Holders or the Trustee under the this Indenture and or the Notes shall will be promptly paid in full or performed, all in accordance with the terms of the this Indenture and the Notes; and (bii) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that same shall they will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturitymaturity, by acceleration or otherwise; and (iii) any and all costs and expenses (including reasonable attorneys' fees) incurred by the Trustee or any Holder in enforcing any rights under any Guarantee with respect to the Notes will be paid. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall any Guarantor will be jointly and severally obligated (subject to any grace periods allowed pursuant to Section 6.1 hereof) to pay the same immediatelywhether or not such failure to pay has become an Event of Default which could cause acceleration pursuant to Section 6.2 hereof. The Subsidiary Guarantors hereby agree that An Event of Default under this Indenture or the Notes shall constitute an event of default under any Guarantee of the Notes, and shall entitle the Holders of Notes to accelerate the Obligations of any Guarantor hereunder in the same manner and to the fullest same extent permitted by applicable law, their obligations as the Obligations of the Issuers. Each Guarantor agrees that its Obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Noteshereof or thereof, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary any Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Any Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against either or both of the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall with respect to the Notes will not be discharged except by complete performance of the obligations contained in its Obligations under the Notes and the this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantorsany Issuer, any Guarantor or any custodianCustodian, trusteeTrustee, liquidator or other similar official acting in relation to either the Issuers any Issuer or Subsidiary Guarantors, any Guarantor any amount paid by any of them such entity to the Trustee or such Holder, these Guaranteesany Guarantee to the Notes, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders Holder in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantorsit, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII 6 hereof for the purposes of these Guaranteeshereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII 6 hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors such Guarantor for the purpose of these Guaranteessuch Guarantee of the Notes. The Subsidiary Guarantors A Guarantor shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders Holder under these Guaranteesits Guarantee of the Notes. Each Holder of a Note by its acceptance thereof agrees to and shall be bound by the provisions of this Section 10.1.
Appears in 3 contracts
Sources: Indenture (Meristar Hospitality Corp), Indenture (Meristar Hospitality Corp), Indenture (Meristar Hospitality Corp)
Guarantees. Subject to the provisions of this Article XI10, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the this Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) the principal of, premium and interest (including Additional Interest, if any) on the Notes shall be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest (including Additional Interest, if any) on the Notes, if any, to the extent lawful, and all other Obligations of the Issuers to the Holders or the Trustee under the this Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of the this Indenture and the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the this Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII 6 hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII 6 hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guarantees.. Back to Contents
Appears in 3 contracts
Sources: Indenture (Atlas Pipeline Partners Lp), Indenture (Atlas Pipeline Holdings, L.P.), Indenture (Atlas America Inc)
Guarantees. Subject (a) The Guarantors, hereby jointly and severally guarantee, as a primary obligor and not as a surety, to the provisions of this Article XI, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee Lender and its permitted successors and assigns, irrespective of the validity Guaranteed Obligations. The Guarantors hereby jointly and enforceability of the Indenture, the Notes severally agree that if Borrower or the any other Obligations of the Issuers hereunder or thereunder, that: (a) the principal of, premium and interest on the Notes Guarantor shall be promptly paid fail to pay in full when due, due (whether at the maturity or interest scheduled payment or mandatory redemption date, by acceleration, redemption required repayment or otherwise) any of the Guaranteed Obligations, the Guarantors will promptly pay the same in cash, without any demand or notice whatsoever, and interest on that in the overdue principal of, premium and interest on the Notes, if any, to the extent lawful, and all other Obligations of the Issuers to the Holders or the Trustee under the Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of the Indenture and the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other the Guaranteed Obligations, that the same shall will be promptly paid in full when due (whether at scheduled payment date, by requirement prepayment or performed otherwise) in accordance with the terms of the such extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing .
(b) The obligations of the Guarantors under Section 10.01(a) shall constitute a guaranty of payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable lawLaw, their obligations hereunder shall be are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Notes or the Indenture, the absence Guaranteed Obligations of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture Borrower and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same Guarantors under this Agreement or any other agreement or instrument referred to herein or therein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance (other than complete performance) which whatsoever that might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantorsurety or Guarantor (except for payment in full). To Without limiting the fullest extent permitted by applicable lawgenerality of the foregoing, each Subsidiary it is agreed that the occurrence of any one or more of the following shall not alter or impair the liability of the Guarantors hereunder which shall remain absolute, irrevocable and unconditional under any and all circumstances as described above:
(i) at any time or from time to time, without notice to the Guarantors, the time for any performance of or compliance with any of the Guaranteed Obligations shall be extended, or such performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of this Agreement or any other agreement or instrument referred to herein or therein shall be done or omitted;
(iii) the scheduled payment date of any of the Guaranteed Obligations shall be accelerated, or any of the Guaranteed Obligations shall be amended in any respect, or any right under the Transaction Documents or any other agreement or instrument referred to herein or therein shall be amended or waived in any respect or any other guarantee of any of the Guaranteed Obligations or any security therefor shall be released or exchanged in whole or in part or otherwise dealt with;
(iv) any Lien or security interest granted to, or in favor of, the Lender as security for any of the Guaranteed Obligations shall fail to be perfected; or
(v) the release of any other Guarantor pursuant to Section 10.01(h).
(c) The Guarantors hereby waives expressly waive diligence, presentment, demand of payment, filing of claims with a court in protest and all Notices whatsoever, and any requirement that the event of insolvency Lender exhaust any right, power or bankruptcy remedy or proceed against Borrower under this Agreement, the Note or any other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the IssuersGuaranteed Obligations. The Guarantors waive any and all notice of the creation, renewal, extension, waiver, termination or accrual of any of the Guaranteed Obligations and notice of or proof of reliance by the Lender upon this Guarantee or acceptance of this Guarantee, and the Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guarantee, and all dealings between Borrower and the Lender shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guarantee. This Guarantee shall be construed as a continuing, absolute, irrevocable and unconditional guarantee of payment without regard to any right of offset with respect to require a proceeding first against the IssuersGuaranteed Obligations at any time or from time to time held by the Lender, protest, notice and all demands whatsoever the obligations and covenants that its Guarantee liabilities of the Guarantors hereunder shall not be discharged except conditioned or contingent upon the pursuit by complete performance the Lender or any other Person at any time of any right or remedy against Borrower and the Guarantors or against any other Person which may be or become liable in respect of all or any part of the obligations contained in the Notes and the IndentureGuaranteed Obligations or against any collateral security or guarantee therefor or right of offset with respect thereto. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, This Guarantee shall be reinstated remain in full force and effect. Each Subsidiary Guarantor agrees that it shall not effect and be entitled to any right of subrogation binding in relation accordance with and to the Holders in respect extent of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between its terms upon the Subsidiary Guarantors, on Guarantors and the one handsuccessors and assigns thereof, and shall inure to the Holders and the Trustee, on the other hand, (x) the maturity benefit of the Obligations guaranteed hereby Lender and its successors and assigns, notwithstanding that from time to time during the term of this Agreement there may be accelerated as provided in Article VII hereof no Guaranteed Obligations outstanding.
(d) The obligations of the Guarantors under this Section 10.01 shall be automatically reinstated if and to the extent that for the purposes any reason any payment by or on behalf of these Guarantees, notwithstanding Borrower or any stay, injunction or other prohibition preventing such acceleration Guarantor in respect of the Guaranteed Obligations guaranteed herebyis rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise.
(e) Each Guarantor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations under this Agreement it shall not enforce any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 10.01(a), whether by subrogation or otherwise, against Borrower or any other Guarantor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.
(f) The guarantee in this Section 10.01 is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising.
(yg) in In any action or proceeding involving any state corporate, limited partnership, or limited liability company Law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other Law affecting the event rights of creditors generally, if the obligations of any declaration Guarantor under Section 10.01(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of acceleration any other creditors, on account of the amount of its liability under Section 10.01(a), then, notwithstanding any other provision of this Agreement to the contrary, the amount of such Obligations liability shall, without any further action by such Guarantor, any other Guarantor or any other Person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 10.01(a)) that is valid and enforceable and not subordinated to the claims of other creditors as provided determined in Article VII hereofsuch action or proceeding.
(h) If a Guarantor becomes a Transferred Guarantor, such Obligations Transferred Guarantor shall, upon the consummation of such sale or transfer, be automatically released from its obligations under this Agreement (whether or not due including under Article XII) and payable) its obligations to pledge and grant any Collateral owned by it pursuant to any Security Document and the pledge of such Capital Stock to the Lender pursuant to the Security Documents shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor be automatically released, and, so long as Borrower and its Subsidiaries shall have provided the exercise Lender such certifications or documents as it shall reasonably request, the Lender shall take such actions as are necessary to effect each release described in this clause (h) in accordance with the relevant provisions of the Security Documents, so long as Borrower and its Subsidiaries shall have provided the Lender such certifications or documents as it shall reasonably request in order to demonstrate compliance with this Agreement.
(i) Each Guarantor hereby agrees that to the extent that a Guarantor shall have paid more than its proportionate share of any payment made hereunder, such Guarantor shall be entitled to seek and receive contribution from and against any other Guarantor hereunder which has not paid its proportionate share of such payment. Each Guarantor’s right does not impair of contribution shall be subject to the rights terms and conditions of Section 10.01(e). The provisions of this Section 10.01(i) shall in no respect limit the Holders under these Guaranteesobligations and liabilities of any Guarantor to the Lender, and each Guarantor shall remain liable to the Lender for the full amount guaranteed by such Guarantor hereunder.
Appears in 3 contracts
Sources: Loan Agreement (Invuity, Inc.), Loan Agreement (Invuity, Inc.), Loan Agreement (Invuity, Inc.)
Guarantees. Subject to the provisions of this Article XI10, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the this Indenture, the Notes or the other Obligations obligations of the Issuers Company hereunder or thereunder, that: (a) the principal of, premium premium, if any, and interest on the Notes shall will be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption datematurity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium premium, if any, and interest on the Notes, if any, to the extent if lawful, and all other Obligations obligations of the Issuers Company to the Holders or the Trustee under the Indenture and the Notes shall hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms of the Indenture hereof and the Notesthereof; and (b) in the case of any extension of time of payment or renewal of any Notes or any of such other Obligationsobligations, that the same shall will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturitystated maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Noteshereof or thereof, the recovery of any judgment against the IssuersCompany, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantorguarantor. To the fullest extent permitted by applicable law, each Each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the IssuersCompany, any right to require a proceeding first against the IssuersCompany, protest, notice and all demands whatsoever and covenants covenant that its this Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenturethis Indenture or pursuant to Section 10.04. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary GuarantorsCompany, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers Company or Subsidiary the Guarantors, any amount paid by any of them either to the Trustee or such Holder, these Guaranteesthis Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations obligations guaranteed hereby until payment in full of all Obligations obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations obligations guaranteed hereby may be accelerated as provided in Article VII hereof 6 for the purposes of these Guaranteesthis Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations obligations as provided in Article VII hereof6, such Obligations obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guaranteesthis Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-non paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guaranteesthe Guarantee.
Appears in 3 contracts
Sources: Indenture (E Trade Financial Corp), Indenture (E Trade Financial Corp), Indenture (E Trade Financial Corp)
Guarantees. Subject to the provisions of this Article XI(a) Historic TW, each of the Subsidiary Guarantors herebyas primary obligor and not merely as surety, jointly will fully, irrevocably and severallyunconditionally guarantee, unconditionally guarantees to each Holder of a Note authenticated and delivered by Securities (including each Holder of Securities issued under the Trustee Indenture after the date of this Indenture) and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: assigns (ai) the full and punctual payment of principal of, premium of and interest on the Notes shall be promptly paid in full Securities when due, whether at the maturity or interest payment or mandatory redemption datematurity, by acceleration, by redemption or otherwise, and interest on all other monetary obligations of the overdue principal ofCompany under this Indenture (including obligations to the Trustee) and the Securities and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Securities.
(b) Each of TBS and HBO, premium as primary obligor and interest on the Notesnot merely as surety, if anywill fully, irrevocably and unconditionally guarantee, to each Holder of Securities (including each Holder of Securities issued under the extent lawfulIndenture after the date of this Indenture) and to the Trustee and its successors and assigns (i) the full and punctual payment of all monies due under the Guarantee of Historic TW, and all other Obligations monetary obligations of Historic TW under this Indenture (including obligations to the Trustee) and (ii) the full and punctual performance within applicable grace periods of all other obligations of Historic TW under this Indenture and its Guarantee.
(c) Each of the Issuers to the Holders or the Trustee under the Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of the Indenture and the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, Guarantors further agrees that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their its obligations hereunder shall be unconditional, unconditional irrespective of the validity, regularity absence or enforceability of the Notes or the Indenture, the absence existence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same Company or any other circumstance Guarantor (other than complete performanceexcept to the extent such judgment is paid) which might 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 Subsidiary Guarantor. To guarantor (except that each such waiver or amendment shall be effective in accordance with its terms).
(d) Each of the fullest extent permitted by applicable lawGuarantors further agrees that each Guarantee constitutes a guarantee of payment, each Subsidiary Guarantor hereby performance and compliance and not merely of collection.
(e) Each of the Guarantors further agrees to waive presentment to, demand of payment from and protest to the Company or any other Person, and also waives diligence, notice of acceptance of its Guarantee, presentment, demand of for payment, notice of protest for nonpayment, the filing of claims with a court in the event of insolvency merger or bankruptcy of the Issuers, Company or any other Person and any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee Company or any other Person. The obligations of the Guarantors shall not be discharged except affected by complete performance any failure or policy on the part of the obligations contained in the Notes and the Indenture. If Trustee to exercise any Holder right or remedy under this Indenture or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect Securities of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guaranteesseries.
Appears in 3 contracts
Sources: Indenture (Home Box Office, Inc.), Indenture (Time Warner Inc.), Indenture (Home Box Office, Inc.)
Guarantees. Subject to the provisions of this Article XI11, each of the Subsidiary Guarantors hereby, jointly and severally, fully and unconditionally guarantees guarantees, on a senior unsecured basis, to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the this Indenture, the Notes or held thereby and the other Obligations of the Issuers hereunder or and thereunder, that: (a) the principal of, premium premium, if any, and interest on the Notes shall will be promptly paid in full when due, subject to any applicable grace period, whether at the maturity or interest payment or mandatory redemption dateStated Maturity, by acceleration, upon repurchase or redemption or otherwise, and interest on the overdue principal of, premium premium, if any (to the extent permitted by law) and interest on the Notes, if any, to the extent lawful, and all other payment Obligations of the Issuers to the Holders or the Trustee under the Indenture and the Notes shall hereunder or thereunder will be promptly paid in full or and performed, all in accordance with the terms of the Indenture hereof and the Notesthereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that the same shall will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration acceleration, upon repurchase or redemption or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall will be jointly and severally obligated to pay the same immediately. An Event of Default under this Indenture or the Notes shall constitute an event of default under the Guarantees, and shall entitle the Holders to accelerate the obligations of the Guarantors hereunder in the same manner and to the same extent as the Obligations of the Issuers. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Noteshereof or thereof, the recovery of any judgment against the Issuersan Issuer, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To Each Guarantor further, to the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuersan Issuer, any right to require a proceeding first against the Issuersan Issuer, protest, notice and all demands whatsoever and covenants that its Guarantee shall will not be discharged except by complete performance of the obligations Obligations contained in the Notes and the this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to an Issuer, the Issuers or Subsidiary Guarantors, or any custodianCustodian, trustee, liquidator Trustee or other similar official acting in relation to either any of the Issuers or Subsidiary the Guarantors, any amount paid by an Issuer or any of them Guarantor to the Trustee or such Holder, these the Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to to, and hereby waives, any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (xa) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII 7 hereof for the purposes of these Guaranteesits Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed herebythereby, and (yb) in the event of any declaration of acceleration of such Obligations as provided in Article VII 7 hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors Guarantor for the purpose of these Guaranteesits Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these the Guarantees.
Appears in 2 contracts
Sources: Second Supplemental Indenture (Summit Midstream Partners, LP), First Supplemental Indenture (Summit Midstream Partners, LP)
Guarantees. Subject to the provisions of this Article XI, each of the Subsidiary Guarantors herebyEach Guarantor, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated Guaranteed Party the due and delivered punctual payment by the Trustee and Rayonier (or TRS on Rayonier’s behalf pursuant to the Trustee and its successors and assigns, irrespective Contribution Agreement) of the validity and enforceability of the Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) the principal ofof and premium, premium if any, and interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Notes shall be promptly paid in full Revenue Bonds, when and as due, whether at the maturity or interest payment or mandatory redemption datematurity, by acceleration, redemption upon one or more dates set for prepayment or otherwise, and interest on (b) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the overdue principal ofpendency of any bankruptcy, premium and interest on the Notesinsolvency, if anyreceivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of Rayonier to the extent lawfulGuaranteed Parties under any trust indenture, and loan agreement or other related operative documents governing the Revenue Bonds (together, the “Bond Documents”), whether such amounts shall have accrued prior to, on or after the date of this Guarantee (all other Obligations of the Issuers monetary obligations referred to in the Holders or the Trustee under the Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of the Indenture and the Notes; preceding clauses (a) and (b) being collectively called the “Rayonier Obligations”). Anything contained in this Guarantee to the contrary notwithstanding, the obligations of each Guarantor hereunder shall be limited to a maximum aggregate amount equal to the greatest amount that would not render such obligations subject to avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11 of the United States Code or any provisions of applicable law (collectively, the “Fraudulent Transfer Laws”), in each case after giving effect to all other liabilities of such Guarantor, contingent or otherwise, that are relevant under the Fraudulent Transfer Laws and after giving effect as assets to the value (as determined under the applicable provisions of the Fraudulent Transfer Laws) of any rights to subrogation, contribution, reimbursement, indemnity or similar rights of such Guarantor pursuant to (i) applicable law or (ii) any agreement providing for an equitable allocation among such Guarantor and other Affiliates of Rayonier of obligations arising under Guarantees by such parties. Each Guarantor further agrees that the Rayonier Obligations may be extended or renewed, in whole or in part, without notice to or further assent from it, and that it will remain bound upon its guarantee notwithstanding any extension of time of payment or renewal of any Notes or any of such other Obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these GuaranteesRayonier Obligation.
Appears in 2 contracts
Guarantees. Subject (a) The payment by the Company of all amounts due with respect to the provisions Notes and the performance by the Company of its obligations under this Agreement will be absolutely and unconditionally guaranteed by the Reporting Entity and the Affiliates of the Reporting Entity (other than the Company) that (i) are obligors under the Bank Credit Agreement or a Material Credit Facility or (ii) guarantee the obligations of the obligors under the Bank Credit Agreement or such Material Credit Facility (together with any additional Affiliate who delivers a guaranty pursuant to Section 9.7, the “Guarantors”) pursuant to the guaranty agreement substantially in the form of Exhibit 2.2(a) attached hereto and made a part hereof (as the same may be amended, modified, extended or renewed, the “Affiliate Guaranty”).
(b) Any instruments, documents and agreements pursuant to which the Reporting Entity or any Subsidiary agrees to grant Liens in favor of a collateral agent (the “Collateral Agent”) for the benefit of the holders of Notes are hereinafter referred to as the “Collateral Documents”. The Collateral Documents and the Affiliate Guaranties are hereinafter collectively referred to as the “Security Documents.”
(c) [Reserved].
(d) If at any time the Reporting Entity or any Affiliate shall grant to any one or more of the Creditors security of any kind or provide any one or more of the Creditors with additional guaranties or other credit support of any kind pursuant to the requirements of a Material Credit Facility, then the Reporting Entity or such Affiliate shall grant to the holders of the Notes the same security or guaranty so that the holders of the Notes shall at all times be secured on an equal and pro rata basis with such Creditors. All such additional guaranties or security shall be given to the holders of the Notes pursuant to Section 9.7 or 9.8, as applicable, of this Article XI, each Agreement.
(e) The holders of the Subsidiary Guarantors herebyNotes agree that the obligations of any Affiliate (other than the Reporting Entity) under the Affiliate Guaranty and the Liens of the Collateral Documents in respect of all or any part of the collateral therein described shall be automatically released and discharged without the necessity of further action on the part of the holders of the Notes if, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee extent, (i) the corresponding guaranty or Lien given pursuant to the terms of any Material Credit Facility is released, (ii) such Affiliate is no longer, if applicable, a borrower or issuer under any Material Credit Facility and its successors (iii) no Default or Event of Default shall have occurred and assignsthen be continuing or result therefrom (or should any Default or Event of Default then exist or result, irrespective at such later time as any such Default or Event of Default shall cease to exist or result therefrom), provided that in the event the Reporting Entity or any Affiliate shall again become obligated under or with respect to the previously discharged Affiliate Guaranty or Material Credit Facility, or again grant the discharged Lien, as the case may be, pursuant to the terms and provisions of the validity relevant Material Credit Facility, then the Lien granted by the Reporting Entity or its Subsidiaries under a Collateral Document or the obligations of such Affiliate under the Affiliate Guaranty, as the case may be, shall be reinstated and enforceability any release thereof previously given shall be deemed null and void, and such Affiliate Guaranty shall again benefit the holders of the Indenture, Notes on an equal and pro rata basis. Any release by the holders of the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (aunder this Section 2.2(e) the principal of, premium and interest on the Notes shall be promptly paid in full when duedeemed to have occurred concurrently with the release and discharge under the Material Credit Facilities. Further, whether at the maturity any reinstatement of an Affiliate Guaranty or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if any, Lien pursuant to the extent lawful, and all other Obligations of the Issuers to the Holders or the Trustee under the Indenture and the Notes terms hereof shall be promptly paid in full or performed, all in accordance comply with the terms of the Indenture Sections 9.7 and the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately9.8 hereof. The Subsidiary Guarantors hereby agree that to Reporting Entity shall promptly notify the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability holders of the Notes or the Indenture, the absence of any action release of an Affiliate Guaranty pursuant to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture this Section 2.2(e) and the Notes, the recovery shall deliver evidence of any judgment against the Issuers, any action to enforce the same release or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court guaranty or Lien in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guaranteescustomary form.
Appears in 2 contracts
Sources: Note Purchase Agreement (STERIS PLC), Note Purchase Agreement (STERIS PLC)
Guarantees. Subject to the provisions of this Article XI, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) Parent hereby unconditionally and absolutely guarantees (this “Guarantee”), as a primary obligor and not merely as surety, the principal offull and punctual payment and performance of all debts, premium obligations and interest on the Notes shall be promptly paid liabilities (including in full when respect of Fees and referral fees), whether such obligations are direct or indirect, absolute or contingent, now existing or subsequently arising, primary or secondary, now due or hereafter falling due, whether at the maturity or interest payment or mandatory redemption date, by acceleration, redemption monetary or otherwise, and of Licensee under this Agreement, together with all costs of collection, compromise or enforcement, including reasonable attorneys’ fees, incurred with respect to any such debt, obligations or liabilities, or with respect to this or any other guaranty of any of them, or with respect to a proceeding under the federal bankruptcy laws or any moratorium, insolvency, receivership, arrangement or reorganization law or an assignment for the benefit of creditors concerning Licensee or Parent, together with interest on all such costs of collection, compromise or enforcement from the overdue principal ofdate arising (collectively, premium and interest on the Notes, if any, to the extent lawful, and all other Obligations of the Issuers to the Holders or the Trustee “Obligations”). Parent further agrees that its liability under the Indenture and the Notes Guarantee shall not be promptly paid in full discharged, impaired, diminished or performedotherwise affected by any (a) extension, all in accordance with the terms of the Indenture and the Notes; and (b) in case of any extension of time of payment settlement, modification, compromise, waiver, release or renewal of any Notes Obligation, in whole or in part or (b) any modification or amendment or supplement to this Agreement. The Guarantee is a continuing guarantee, which shall apply to all Obligations which now exist or subsequently arise, whether or not notice of such other ObligationsObligations is given to Parent, that same shall be promptly paid whether or not any or all prior Obligations had been fully paid, performed and observed before any such Obligation arose, and notwithstanding Holdings’ dissolution.
(b) Holdings hereby unconditionally and absolutely guarantees (this “Holdings Guarantee”), as a primary obligor and not merely as surety, the full and punctual payment and performance of all debts, obligations and liabilities (including in full when respect of referral fees), whether such obligations are direct or indirect, absolute or contingent, now existing or subsequently arising, primary or secondary, now due or performed in accordance with the terms of the extension or renewalhereafter falling due, subject to any applicable grace period, whether at Stated Maturity, by acceleration monetary or otherwise. Failing payment when so due , of any amount so guaranteed Licensor under this Agreement, together with all costs of collection, compromise or any performance so guaranteed for whatever reasonenforcement, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable lawincluding reasonable attorneys’ fees, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes incurred with respect to any provisions of the Indenture and the Notessuch debt, the recovery of any judgment against the Issuersobligations or liabilities, any action or with respect to enforce the same this or any other circumstance (other than complete performance) which might otherwise constitute a legal guaranty of any of them, or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right respect to require a proceeding first against under the Issuersfederal bankruptcy laws or any moratorium, protestinsolvency, notice and receivership, arrangement or reorganization law or an assignment for the benefit of creditors concerning Licensor or Holdings, together with interest on all demands whatsoever and covenants such costs of collection, compromise or enforcement from the date arising (collectively, the “Holdings Obligations”). Holdings further agrees that its liability under the Holdings Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If any Holder discharged, impaired, diminished or the Trustee is required otherwise affected by any court (a) extension, settlement, modification, compromise, waiver, release or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect renewal of any Holdings Obligation, in whole or in part or (b) any modification or amendment or supplement to this Agreement. The Holdings Guarantee is a continuing guarantee, which shall apply to all Holdings Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees thatwhich now exist or subsequently arise, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise notice of such right does Holdings Obligations is given to Holdings, whether or not impair the rights of the Holders under these Guaranteesany or all prior Holdings Obligations had been fully paid, performed and observed before any such Holdings Obligation arose, and notwithstanding Parent’s dissolution.
Appears in 2 contracts
Sources: Trademark License Agreement, Trademark License Agreement (Realogy Corp)
Guarantees. Subject to (a) For good and valuable consideration, the provisions receipt and sufficiency of this Article XIwhich are hereby acknowledged, each of the Guarantors, together with each Subsidiary of the Company which in accordance with Section 11.08 is required in the future to guarantee the Obligations of the Company and the Guarantors herebyunder the Securities, the Guarantees and this Indenture upon execution of a supplemental indenture, hereby jointly and severally, severally and irrevocably and unconditionally guarantees to the Trustee and to each Holder of a Note Security authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and or enforceability of the Indenture, the Notes this Indenture or the other Securities or the Obligations of the Issuers hereunder or thereunderCompany and the Guarantors under this Indenture, that: (ai) the principal of, premium premium, if any, and interest any interest, on the Notes shall Securities (including, without limitation, any interest that accrues after the filing of a proceeding of the type described in Sections 6.01(g) and (h)) and any fees, expenses and other amounts owing under this Indenture will be promptly duly and punctually paid in full when due, whether at the maturity or interest payment or mandatory redemption dateStated Maturity, by acceleration, redemption call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase or otherwise, and interest on the overdue principal of, premium and interest on (to the Notesextent permitted by law) interest, if any, to on the extent lawfulSecurities and any other amounts due in respect of the Securities, and all other Obligations of the Issuers Company and the Guarantors to the Holders or of the Trustee Securities under the this Indenture and the Notes shall Securities, whether now or hereafter existing, will be promptly paid in full or performed, all strictly in accordance with the terms hereof and of the Indenture and the NotesSecurities; and (bii) in case of any extension of time of payment or renewal of any Notes Securities or any of such other Obligations, that the same shall will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration acceleration, call for redemption, upon Change of Control Offer, Asset Sale Offer, purchase or otherwise. Failing If payment is not made when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors each Guarantor shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (individually whether or not due and payable) shall forthwith such failure to pay has become due and payable by the Subsidiary Guarantors for the purpose an Event of these Guarantees. The Subsidiary Guarantors shall have the right Default which could cause acceleration pursuant to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guarantees.Section
Appears in 2 contracts
Sources: Indenture (Grey Wolf Inc), Indenture (Di Industries Inc)
Guarantees. Subject to the provisions of this Article XI10, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee Security and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the this Indenture, the Notes Securities or the other Obligations obligations of the Issuers Company hereunder or thereunder, that: (a) the principal of, premium and interest premium, if any, on the Notes shall Securities will be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption datematurity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notespremium, if any, to on the extent Securities, if any, if lawful, and all other Obligations obligations of the Issuers Company to the Holders or the Trustee under the Indenture and the Notes shall hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms of the Indenture hereof and the Notesthereof; and (b) in the case of any extension of time of payment or renewal of any Notes Securities or any of such other Obligationsobligations, that the same shall will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturitystated maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes Securities or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Securities with respect to any provisions of the Indenture and the Noteshereof or thereof, the recovery of any judgment against the IssuersCompany, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantorguarantor. To the fullest extent permitted by applicable law, each Each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the IssuersCompany, any right to require a proceeding first against the IssuersCompany, protest, notice and all demands whatsoever and covenants covenant that its this Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes Securities and the Indenturethis Indenture or pursuant to Section 10.04. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary GuarantorsCompany, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers Company or Subsidiary the Guarantors, any amount paid by any of them to either the Trustee or such Holder, these Guaranteesthis Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations obligations guaranteed hereby until payment in full of all Obligations obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations obligations guaranteed hereby may be accelerated as provided in Article VII hereof 6 for the purposes of these Guaranteesthis Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations obligations as provided in Article VII hereof6, such Obligations obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guaranteesthis Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guaranteesthe Guarantee.
Appears in 2 contracts
Sources: Indenture (E Trade Financial Corp), Indenture (E Trade Financial Corp)
Guarantees. Subject to the provisions of this Article XI11, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the this Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) the principal of, premium premium, interest and interest Liquidated Damages, if any, on the Notes shall be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium premium, interest and interest Liquidated Damages, if any, on the Notes, if any, to the extent if lawful, and all other Obligations of the Issuers to the Holders or the Trustee under the this Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of the this Indenture and the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligationsobligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the this Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants covenant that its Guarantee the Guarantees shall not be discharged except by complete performance of the obligations contained in the Notes and the this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them either to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII 6 hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event 101 of any declaration of acceleration of such Obligations as provided in Article VII 6 hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guarantees.
Appears in 2 contracts
Sources: Indenture (El Paso Energy Partners Lp), Indenture (First Reserve Gas LLC)
Guarantees. (a) Subject to the provisions of this Article XISection 6.1(b), each Borrower hereby unconditionally and irrevocably guarantees to the Administrative Agent, for the ratable benefit of the Subsidiary Guarantors herebyLenders and their respective successors, jointly and severallyindorsees, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors transferees and assigns, irrespective of the validity prompt and enforceability of the Indenture, the Notes or the complete payment by each other Obligations of the Issuers hereunder or thereunder, that: Borrower when due (a) the principal of, premium and interest on the Notes shall be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if any, to the extent lawful, and all other Obligations of the Issuers to the Holders or the Trustee under the Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of the Indenture and the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturitystated maturity, by acceleration or otherwise. Failing payment when so due ) of the Obligations owing by such other Borrower.
(b) Anything in this Article VI to the contrary notwithstanding, the maximum liability of each Borrower (other than a Borrower which is guaranteeing the Obligations of its Subsidiaries) under this Article VI shall in no event exceed the amount which can be guaranteed by such Borrowing Subsidiary under applicable federal and state laws relating to the insolvency of debtors.
(c) Each Borrower agrees that the Obligations owing by any other Borrower may at any time and from time to time exceed the amount so guaranteed of the liability of such other Borrower under this Article VI without impairing the guarantee of such Borrower under this Article VI or affecting the rights and remedies of the Administrative Agent or any performance so guaranteed for whatever reason, Lender under this Article VI.
(d) No payment or payments made by any Borrower or any other Person or received or collected by the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted Administrative Agent or any Lender from any Borrower or any other Person by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence virtue of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same proceeding or any other circumstance (other than complete performance) which might otherwise constitute a legal set-off or equitable discharge appropriation or defense application, at any time or from time to time, in reduction of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court or in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may shall be accelerated as provided in deemed to modify, reduce, release or otherwise affect the liability of the Borrowers under this Article VII hereof for the purposes of these GuaranteesVI 51 56 which shall, notwithstanding any staysuch payment or payments, injunction or other prohibition preventing such acceleration in respect of continue until the Obligations guaranteed herebyare paid in full and the Commitments are terminated.
(e) Each Borrower agrees that whenever, and (y) 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 under this Article VI, it will notify the Administrative Agent in the event of any declaration of acceleration of writing that such Obligations as provided in payment is made under this Article VII hereof, VI for such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guaranteespurpose.
Appears in 2 contracts
Sources: Revolving Credit and Competitive Advance Facility Agreement (Tennessee Gas Pipeline Co), Revolving Credit and Competitive Advance Facility Agreement (El Paso CGP Co)
Guarantees. Subject to the provisions of this Article XI, each of the Subsidiary Guarantors (a) Each Guarantor hereby, jointly and severally, fully, absolutely, unconditionally guarantees and irrevocably guarantees, to each Holder holder of a Note authenticated and delivered by the Trustee Debt Security, and to the Indenture Trustee in its individual capacity and on behalf of each Debtholder, the punctual payment and performance when due of all Indenture Obligations which, for purposes of its successors Guarantee, shall also be deemed to include all commissions, fees, charges, costs and assignsother expenses (including reasonable legal fees and disbursements of counsel) arising out of or incurred by the Indenture Trustee or the Debtholders in connection with the enforcement of any Guarantee and agrees to indemnify and hold harmless each Debtholder and the Indenture Trustee from all losses, irrespective damages, costs, expenses and liabilities suffered or incurred by the Debtholders and the Indenture Trustee resulting or arising from or relating to any failure by Baytex to unconditionally and irrevocably pay in full or fully perform the Indenture Obligations as and when due provided that the amount of such indemnification shall not exceed the amount of such Indenture Obligations as described in the preceding sentence. Without limiting the generality of the validity and enforceability foregoing, each Guarantor's liability shall extend to all amounts that constitute part of the Indenture, the Notes Indenture Obligations and would be owed by Baytex to such Debtholder or the other Obligations of the Issuers hereunder or thereunder, that: (a) the principal of, premium and interest on the Notes shall be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if any, to the extent lawful, and all other Obligations of the Issuers to the Holders or the Indenture Trustee under the Debt Securities or this Indenture and but for the Notes shall be promptly paid in full fact that they are unenforceable, reduced, limited, suspended or performednot allowable due to the existence of a bankruptcy, all in accordance with the terms of the Indenture and the Notes; and reorganization or similar proceeding involving Baytex.
(b) in case Each Guarantor and, by its acceptance hereof, each Debtholder hereby confirms that it is the intention of all such parties that the guarantee by such Guarantor pursuant to its Guarantee not constitute a fraudulent transfer or conveyance for purposes of any extension Bankruptcy Law, the Fraudulent Conveyances Act (Alberta) or other Canadian or United States federal, provincial or state law or the provisions of time of payment its local law relating to fraudulent transfer or renewal of any Notes or any conveyance. To effectuate the foregoing intention, the Debtholders and each Guarantor hereby irrevocably agree that the obligations of such other Obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that under its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return limited to the Issuers or Subsidiary Guarantorsmaximum amount as shall, or any custodian, trustee, liquidator or after giving effect to all other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any contingent and fixed liabilities of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force Guarantor and effect. Each Subsidiary Guarantor agrees that it shall not be entitled after giving effect to any right of subrogation in relation to the Holders in respect collections from or payments made by or on behalf of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary other Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed herebyobligations of such other Guarantor under its Guarantee or pursuant to paragraph (c) of this Section 13.2, result in the obligations of such Guarantor under its Guarantee not constituting a fraudulent conveyance or fraudulent transfer under any such federal, provincial or state law.
(c) In order to provide for just and (y) equitable contribution among the Guarantors, the Guarantors agree, inter se, that in the event any payment or distribution is made by any Guarantor (a "Funding Guarantor") under its Guarantee, such Funding Guarantor shall be entitled to a contribution from each other Guarantor (if any) in a pro rata amount based on the Adjusted Net Assets of each Guarantor (including the Funding Guarantor) for all payments, damages and expenses incurred by the Funding Guarantor in discharging the Indenture Obligations of Baytex or any declaration of acceleration other Guarantor's obligations with respect to its Guarantee. "Adjusted Net Assets" of such Obligations as provided in Article VII hereof, such Obligations Guarantor at any date shall mean the lesser of:
(whether or not due and payablei) shall forthwith become due and payable the amount by which the Subsidiary Guarantors for fair value of the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise property of such right does not impair Guarantor exceeds the rights total amount of liabilities, including, without limitation, contingent liabilities (after giving effect to all other fixed and contingent liabilities incurred or assumed on such date), but excluding liabilities under the Guarantee of such Guarantor at such date; and
(ii) the amount by which the present fair saleable value of the Holders under these Guaranteesassets of such Guarantor at such date exceeds the amount that shall be required to pay the probable liability of such Guarantor on its debts (after giving effect to all other fixed and contingent liabilities incurred or assumed on such date), excluding debt in respect of the Guarantee, as they become absolute and matured.
Appears in 2 contracts
Sources: Trust Indenture (Baytex Energy Corp.), Trust Indenture (Baytex Energy Corp.)
Guarantees. Subject Buyer recognizes that Seller and certain of its Subsidiaries have provided, and prior to the provisions Closing may provide, credit support to the Business, the Purchased Assets or the Purchased Entities pursuant to guarantees, letters of this Article XIcredit, each bonds, sureties and other credit support or assurances provided by Seller or its Subsidiaries in support of any obligation of the Subsidiary Guarantors herebyBusiness that are listed on Schedule 6.14 of the Disclosure Letter (the “Business Guarantees”). Buyer and Seller shall use their commercially reasonable efforts to obtain from the respective beneficiary, jointly in form and severallysubstance reasonably satisfactory to Seller, unconditionally guarantees to each Holder on or before the Closing Date, valid and binding written releases of a Note authenticated and delivered by the Trustee and to the Trustee Seller and its successors and assignsSubsidiaries, irrespective of the validity and enforceability of the Indentureas applicable, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) the principal of, premium and interest on the Notes shall be promptly paid in full when duefrom any Liability, whether at arising before, on or after the maturity or interest payment or mandatory redemption dateClosing Date, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if any, under any Business Guarantees to the extent lawfulrelating to the Business, the Purchased Assets or the Assumed Liabilities, which release shall be effective as of the Closing, including, in the case of Buyer and its Subsidiaries, as applicable, by providing substitute guarantees, furnishing letters of credit, instituting escrow agreements, posting surety or performance bonds or making other arrangements as the beneficiary may reasonably request. If any Business Guarantee has not been released as of the Closing Date, then Buyer and Seller shall continue to use their commercially reasonable efforts after the Closing to cause as promptly as practicable the complete and unconditional release of Seller and its Subsidiaries under such Business Guarantee to the extent relating to the Business, the Purchased Assets or the Assumed Liabilities. Notwithstanding anything to the contrary herein, the Parties acknowledge and agree that at any time on or after the Closing Date, Seller and its Subsidiaries may, in such Person’s sole discretion, take any action to terminate, obtain release of or otherwise limit their Liability under any and all other Obligations of the Issuers to the Holders or the Trustee under the Indenture and the Notes shall be promptly paid outstanding Business Guarantees; provided that no such action results in full or performed, all in accordance with the terms of the Indenture and the Notes; and (b) in case a breach of any extension Contract or Liability (or acceleration of time a Liability) of payment or renewal of any Notes Buyer or any of such other Obligationsits Affiliates. Buyer shall, that same shall and hereby agrees to, indemnify and hold harmless Seller and its Subsidiaries from and after the Closing for any amounts required to be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to under any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, Business Guarantees to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation exclusively relating to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity operation or ownership of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for Business or the purposes of these Guarantees, notwithstanding any stay, injunction Purchased Assets after the Closing Date or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these GuaranteesAssumed Liabilities.
Appears in 2 contracts
Sources: Purchase Agreement (Welbilt, Inc.), Purchase Agreement (PENTAIR PLC)
Guarantees. (a) Subject to the provisions of this Article XI12, each of the Subsidiary Guarantors herebyGuarantor, jointly and severally, hereby irrevocably and unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee Securities and to the Trustee and its successors and assigns, irrespective on behalf of the validity and enforceability of the Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: Holders (ai) the due and punctual payment of principal of, premium premium, if any, and interest on the Notes shall be promptly paid in full on each Security when due, and as the same shall become due and payable whether at the maturity or interest payment or mandatory redemption dateStated Maturity, by acceleration, redemption declaration of acceleration or otherwise, (ii) the due and punctual payment of interest on the overdue principal of, premium and interest on the Notespremium, if any, and interest in full on the Securities, to the extent lawfulpermitted by law, and (iii) the due and punctual performance of all other Obligations of the Issuers Company and the other Guarantors to the Holders or the Trustee under Trustee, including without limitation the Indenture and the Notes shall be promptly paid in full payment of fees, expenses, indemnification or performedother amounts, all in accordance with the terms of the Indenture Securities and the Notes; and (b) in this Indenture. In case of the failure of the Company punctually to make any extension of time of such principal or interest payment or renewal the failure of any Notes the Company or any of other Guarantor to perform any such other ObligationsObligation, that each Guarantor hereby agrees to cause any such payment to be made punctually when and as the same shall be promptly paid in full when become due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace periodand payable, whether at Stated Maturity, by declaration of acceleration or otherwise, and as if such payment were made by the Company and to perform any such other Obligation of the Company immediately. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated Each Guarantor hereby further agrees to pay any and all expenses (including reasonable counsel fees and expenses) incurred by the same immediatelyTrustee or the Holders in enforcing any rights under these Guarantees. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective Guarantees under this Article 12 are guarantees of payment and not of collection.
(b) Each of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture Company and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor Guarantors hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, insolvency or bankruptcy of the IssuersCompany or any other Guarantor, any right to require a proceeding first against the IssuersCompany or any other Guarantor, protest, protest or notice with respect to the Securities or the indebtedness evidenced thereby and all demands whatsoever whatsoever, and covenants that its Guarantee shall these Guarantees will not be discharged except by complete performance of the obligations Obligations contained in the Notes Securities and in this Indenture, or as otherwise specifically provided therein and herein.
(c) Each Guarantor hereby waives and relinquishes:
(i) any right to require the Indenture. If any Holder Trustee, the Holders or the Trustee is Company (each, a "Benefited Party") to proceed against the Company, the Subsidiaries of the Company or any other Person or to proceed against or exhaust any security held by a Benefited Party at any time or to pursue any other remedy in any secured party's power before proceeding against the Guarantors;
(ii) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons;
(iii) demand, protest and notice of any kind (except as expressly required by this Indenture), including but not limited to notice of the existence, creation or incurring of any court new or otherwise to return to additional indebtedness or obligation or of any action or non-action on the Issuers or Subsidiary part of the Guarantors, or the Company, the Subsidiaries of the Company, any custodianBenefited Party, trustee, liquidator or other similar official acting in relation to either any creditor of the Issuers or Subsidiary Guarantors, any amount paid by any the Company or the Subsidiaries of them to the Trustee Company or such Holder, these Guarantees, to on the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect part of any Obligations guaranteed other Person whomsoever in connection with any obligations the performance of which are hereby until payment guaranteed;
(iv) any defense based upon an election of remedies by a Benefited Party, including but not limited to an election to proceed against the Guarantors for reimbursement;
(v) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in full amount nor in other respects more burdensome than that of all Obligations guaranteed hereby. the principal;
(vi) any defense arising because of a Benefited Party's election, in any proceeding instituted under the Bankruptcy Law, of the application of Section 1111(b)(2) of the Bankruptcy Law; and
(vii) any defense based on any borrowing or grant of a security interest under Section 364 of the Bankruptcy Law.
(d) Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantorssuch Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (xi) for purposes of the relevant Guarantee, the maturity of the Obligations guaranteed hereby Guaranteed by such Guarantee may be accelerated as provided in Article VII hereof for the purposes of these Guarantees5, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed herebythereby, and (yii) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) such Obligations shall forthwith become due and payable by the Subsidiary Guarantors such Guarantor for the purpose purposes of these Guarantees. such Guarantee.
(e) The Subsidiary Guarantors Guarantees shall have the right continue to seek contribution from any non-paying Subsidiary Guarantor so long be effective or shall be reinstated, as the exercise case may be, if at any time any payment, or any part thereof, of principal of, premium, if any, or interest on any of the Securities is rescinded or must otherwise be returned by the Holders or the Trustee upon the insolvency, bankruptcy or reorganization of the Company or any of the Guarantors, all as though such right does payment had not impair the been made.
(f) Each Guarantor shall be subrogated to all rights of the Holders under these Guaranteesagainst the Company in respect of any amounts paid by such Guarantor pursuant to the provisions of the Guarantees or this Indenture; provided, however, that a Guarantor shall not be entitled to enforce or to receive any payments until the principal of, premium, if any, and interest on all Securities issued hereunder shall have been paid in full.
Appears in 2 contracts
Sources: Indenture (Federal Mogul Corp), Indenture (Federal Mogul U K Holdings Inc)
Guarantees. Subject to the provisions of this Article XI, each Each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees guarantees, to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assignsNoteholder, irrespective of the validity and enforceability of the Indenturethis Agreement, the Notes or the other Obligations obligations of the Issuers Company hereunder or thereunder, that: (a) the principal of, of and premium and interest on the Notes shall be promptly paid in full when due, subject to any applicable grace period, whether at the maturity or interest payment or mandatory redemption dateStated Maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium of (and any premium) and interest on the Notes, if any, to the extent if lawful, and all other Obligations obligations of the Issuers Company to the Holders Noteholders hereunder or the Trustee under the Indenture and the Notes thereunder shall be promptly paid in full or performed, all in accordance with the terms of the Indenture hereof and the Notesthereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligationsobligations, that the same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due due, subject to any applicable grace period, of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenturethis Agreement, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Noteholder with respect to any provisions of the Indenture and the Noteshereof or thereof, the recovery of any judgment against the IssuersCompany, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the IssuersCompany, any right to require a proceeding first against the IssuersCompany, protest, notice and all demands whatsoever and covenants that its that, subject to Section 13.04, this Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenturethis Agreement. If any Holder or the Trustee Noteholder is required by any court or otherwise to return to the Issuers Company or Subsidiary Guarantors, or any custodianCustodian, trustee, liquidator or other similar official acting in relation to either the Issuers Company or Subsidiary Guarantors, any amount paid by any of them the Company or the Guarantor to the Trustee or such HolderNoteholder, these Guaranteesthis Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effecteffect as to such amount only. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders Noteholders in respect of any Obligations obligations guaranteed hereby until payment in full of all Obligations obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the TrusteeNoteholders, on the other hand, (xa) the maturity Maturity of the Obligations obligations guaranteed hereby may be accelerated as provided in Article VII hereof Section 11 for the purposes of these Guaranteesthis Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations obligations guaranteed hereby, hereby and (yb) in the event of any declaration of acceleration of such Obligations obligations as provided in Article VII hereofSection 11, such Obligations obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guaranteesthis Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders Noteholders under these the Guarantees.
Appears in 2 contracts
Sources: Purchase Agreement (American Coin Merchandising Inc), Purchase Agreement (American Coin Merchandising Inc)
Guarantees. Subject to the provisions of this Article XIX, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the this Indenture, the Notes or the other Obligations obligations of the Issuers Company hereunder or thereunder, that: (a) the principal of, premium premium, if any, and interest on the Notes shall will be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption datematurity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium premium, if any, and interest on the Notes, if any, to the extent if lawful, and all other Obligations obligations of the Issuers Company to the Holders or the Trustee under the Indenture and the Notes shall hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms of the Indenture hereof and the Notesthereof; and (b) in the case of any extension of time of payment or renewal of any Notes or any of such other Obligationsobligations, that the same shall will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturitystated maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Noteshereof or thereof, the recovery of any judgment against the IssuersCompany, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantorguarantor. To the fullest extent permitted by applicable law, each Each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the IssuersCompany, any right to require a proceeding first against the IssuersCompany, protest, notice and all demands whatsoever and covenants covenant that its this Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenturethis Indenture or pursuant to Section 10.04. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Company, the Subsidiary Guarantors, Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers Company or the Subsidiary Guarantors, any amount paid by any of them either to the Trustee or such Holder, these Guaranteesthis Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations obligations guaranteed hereby until payment in full of all Obligations obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations obligations guaranteed hereby may be accelerated as provided in Article VII hereof VI for the purposes of these Guaranteesthis Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations obligations as provided in Article VII hereofVI, such Obligations obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guaranteesthis Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-non paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guaranteesthe Guarantee.
Appears in 2 contracts
Sources: Indenture (E Trade Financial Corp), Indenture (E Trade Financial Corp)
Guarantees. Subject to the provisions of this Article XI, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) The Company shall from time to time (i) cause each Subsidiary of the principal ofCompany that is not an Excluded Subsidiary to become, premium and interest on the Notes shall be promptly paid in full when dueIssue Date or, whether if such Subsidiary is acquired or created after the Issue Date or such Subsidiary was an Excluded Subsidiary but thereafter is not an Excluded Subsidiary, at the maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on later of (A) the overdue principal of, premium and interest on the Notes, if any, to the extent lawful, and all other Obligations time of the Issuers to acquisition, creation or change in status of such Subsidiary and (B) the Holders time at which such Subsidiary Incurs Indebtedness or such Subsidiary guarantees or secures any Indebtedness of the Trustee Company, a guarantor of the obligations of the Company under the this Indenture and the Notes by executing this Indenture (directly or by supplemental indenture) as a Subsidiary Guarantor or by executing a Guarantee in substantially the form of Article 15 (provided that the provision of a Guaranty by a Subsidiary after the Issue Date shall be promptly paid in full or performed, all in accordance subject to compliance with the terms of the Indenture any applicable Gaming Laws and the Notes; Company agrees that (subject to Section 12.7(b)) it shall not have any such Subsidiary that is not an Excluded Subsidiary unless it is permitted to give such Guarantee under applicable Gaming Laws) and (ii) deliver to the Trustee an Opinion of Counsel, in form reasonably satisfactory to the Trustee, that such Guarantee is the valid, binding and enforceable obligation of such Subsidiary Guarantor, subject to customary exceptions for bankruptcy, fraudulent transfer and equitable principles.
(b) The actions set forth in case Section 12.7(a) shall be taken within 10 days of the time on which any extension Person is required to become a Subsidiary Guarantor, provided that if such Person is not permitted to give a Guarantee under applicable Gaming Laws, then, unless such Person has become a guarantor of time of payment or renewal of the Credit Facilities, any Existing Senior Notes or any of Additional Notes, such other Obligations, that same period shall be promptly paid in full when due or performed in accordance extended as long as the Company continues to use best efforts to obtain the requisite consents for such Guarantee from the applicable Gaming Authority. Each Note issued after the date of execution by any additional Subsidiary Guarantor of a Guarantee shall be endorsed with a form of Guarantee that has been executed by such Subsidiary Guarantor. However, the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due failure of any amount so guaranteed or any performance so guaranteed for whatever reason, Note to have endorsed thereon a Guarantee executed by such Subsidiary Guarantor shall not affect the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity validity or enforceability of such Guarantee. In the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense case of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each that becomes a Subsidiary Guarantor hereby waives diligence, presentment, demand after the Issue Date as a result of payment, filing its guarantee of claims with a court in the event of insolvency or bankruptcy Indebtedness of the IssuersCompany (and not as a result of its Incurrence of Indebtedness), if such Subsidiary thereafter no longer guarantees any right to require a proceeding first against Indebtedness and has not Incurred any Indebtedness, then, upon delivery by the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them Company to the Trustee or such Holder, these Guaranteesof an Officers' Certificate and an Opinion of Counsel, to the extent theretofore dischargedeffect that such conditions to release of the Subsidiary Guarantee by such Subsidiary have been satisfied, the Trustee shall be reinstated execute any documents reasonably required in full force and effect. Each order to evidence the release of such Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any from its Guarantee Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each under its Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these GuaranteesGuarantee.
Appears in 2 contracts
Sources: Indenture (MGM Mirage), Indenture (MGM Mirage)
Guarantees. Subject to the provisions of this Article XIThirteen, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note Security authenticated and delivered by the Trustee and to the Trustee (acting in any capacity hereunder) and its successors and assigns, irrespective of the validity and enforceability of the this Indenture, the Notes Securities or the other Obligations of the Issuers Company hereunder or thereunder, that: (a) the principal and premium, if any, of, premium and interest on interest, if any, on, the Notes shall Securities will be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption datematurity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, premium and interest on the Notesinterest, if any, to on, the extent Securities, if any, if lawful, and all other Obligations obligations of the Issuers Company to the Holders or the Trustee under the Indenture and the Notes shall (acting in any capacity hereunder) hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms of the Indenture hereof and the Notesthereof; and (b) in case of any extension of time of payment or renewal of any Notes Securities or any of such other Obligationsobligations, that same shall will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Guarantee with respect to a Guarantor. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes Securities or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Securities with respect to any provisions of the Indenture and the Noteshereof or thereof, the recovery of any judgment against the IssuersCompany, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantorguarantor. To the fullest extent permitted by applicable law, each Subsidiary Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the IssuersCompany, any right to require a proceeding first against the IssuersCompany, protest, notice and all demands whatsoever and covenants covenant that its this Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes Securities and the this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary GuarantorsCompany, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers Company or Subsidiary the Guarantors, any amount paid by any of them either to the Trustee or such Holder, these Guaranteesthis Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations obligations guaranteed hereby until payment in full of all Obligations obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations obligations guaranteed hereby may be accelerated as provided in Article VII Five hereof for the purposes of these Guaranteesthis Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations obligations as provided in Article VII Five hereof, such Obligations obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guaranteesthis Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guaranteesthe Guarantee.
Appears in 2 contracts
Sources: Indenture (Sonic Automotive Inc), Indenture (Sonic Automotive Inc)
Guarantees. Subject to the provisions of this Article XI12, each of the Subsidiary Guarantors herebyGuarantor, jointly and severally, hereby irrevocably and unconditionally guarantees (each a "Guarantee"), on a senior basis, to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: that (a) the principal of, premium premium, if any, and interest and Additional Interest, if any, on the Notes shall be promptly duly and punctually paid in full when due, whether at the maturity or interest payment or mandatory redemption datematurity, by acceleration, redemption acceleration or otherwise, and interest on the overdue principal ofprincipal, premium and interest on the Notespremium, if any, and (to the extent lawfulpermitted by law) interest on any interest, if any, on the Notes and all other Obligations of the Issuers Company to the Holders or the Trustee hereunder or under the Indenture and Notes or under the Notes Collateral Documents (including fees, expenses or other Obligations) shall be promptly paid in full or performed, all in accordance with the terms of the Indenture hereof and the Notesthereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that the same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturitystated maturity, by acceleration or otherwiseotherwise (collectively, the "Guarantee Obligations"). Failing payment when so due of any amount so guaranteed Guarantee Obligation or failing performance of any performance so guaranteed other Obligation of the Company to the Holders, for whatever reason, the Subsidiary Guarantors each Guarantor shall be jointly and severally obligated to pay pay, or to perform or to cause the performance of, the same immediately. The Subsidiary Guarantors hereby agree that An Event of Default under this Indenture or the Notes shall constitute an event of default under this Guarantee, and shall entitle the Trustee or the Holders to accelerate the Guarantee Obligations of each Guarantor hereunder in the same manner and to the fullest same extent permitted by applicable law, their obligations as the Company Obligations. Each Guarantor hereby agrees that its Guarantee Obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Notesthereof, the recovery entry of any judgment against the IssuersCompany, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, and relinquishes (a) any right to require the Trustee, the Holders or the Company (each, a proceeding first "Benefited Party") to proceed against the IssuersCompany, protestthe Subsidiaries or any other Person or to proceed against or exhaust any security held by a Benefited Party at any time or to pursue any other remedy in any secured party's power before proceeding against such Guarantor; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) demand, protest and notice of any kind (except as expressly required by this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional Indebtedness or Obligation or of any action or non-action on the part of the Guarantors, the Company, the Subsidiaries, any Benefited Party, any creditor of the Guarantors, the Company or the Subsidiaries or on the part of any other Person whomsoever in connection with any Obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Benefited Party, including but not limited to an election to proceed against the Guarantors for reimbursement; (e) any defense based upon any statute or rule of law which provides that the Obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Benefited Party's election in any proceeding instituted under the Bankruptcy Law of the application of Section 1111(b)(2) of the Bankruptcy Code; and all demands whatsoever and covenants (g) any defense based on any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code. The Guarantors hereby covenant that its Guarantee the Guarantees shall not be discharged except by complete performance payment in full of all Guarantee Obligations, including the obligations contained in principal, premium, if any, and interest on the Notes and all other costs provided for under this Indenture, the IndentureCollateral Documents or as provided in Section 8.01. If any Holder or the Trustee is required by any court or otherwise to return to either the Issuers Company or Subsidiary the Guarantors, or any custodian, trustee, liquidator trustee or other similar official acting in relation to either the Issuers Company or Subsidiary the Guarantors, any amount paid by any of them the Company or the Guarantors to the Trustee or such Holder, these the Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor of the Guarantors agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guarantee Obligations guaranteed hereby until payment in full of all Obligations guaranteed herebysuch Obligations. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantorsit, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII 6 hereof for the purposes of these Guaranteeshereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed herebyGuarantee Obligations, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII 6 hereof, such Guarantee Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors such Guarantor for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these GuaranteesGuarantee.
Appears in 2 contracts
Sources: Indenture (Trump Indiana Inc), Indenture (Trump Indiana Inc)
Guarantees. Subject to the provisions of this Article XI, each of the Subsidiary Guarantors hereby(a) Each Guarantor, jointly and severally, hereby unconditionally and irrevocably guarantees to each Holder the Administrative Agent, for the ratable benefit of a Note authenticated the Lenders and delivered by the Trustee and to the Trustee and its successors their respective successors, indorsees, transferees and assigns, irrespective of the validity prompt and enforceability of complete payment and performance by the Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: Borrower as and when due (a) the principal of, premium and interest on the Notes shall be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if any, to the extent lawful, and all other Obligations of the Issuers to the Holders or the Trustee under the Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of the Indenture and the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturitystated maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective ) of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance Obligations.
(other than complete performanceb) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that its This Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated remain in full force and effect. effect until the Obligations are paid in full.
(c) Each Subsidiary Guarantor agrees that whenever, at any time, or from time to time, it shall not be entitled to make any right of subrogation in relation payment to the Holders Administrative Agent or any Lender on account of its liability hereunder, it will notify the Administrative Agent and such Lender in respect writing that such payment is made under this Guarantee for such purpose.
(d) Anything herein or in any other Credit Document to the contrary notwithstanding, the maximum liability of each Guarantor hereunder and under the other Credit Documents shall in no event exceed the amount which can be guaranteed by such Guarantor under applicable federal and state laws relating to the insolvency of debtors.
(e) No payment or payments made by the Borrower, either of the Guarantors, any other guarantor or any other Person or received or collected by the Administrative Agent or any Lender from the Borrower, either of the Guarantors, any other guarantor or any other Person by virtue of any Obligations guaranteed hereby until action or proceeding or any setoff or appropriation or payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may shall be accelerated as provided in Article VII hereof for deemed to modify, reduce, release or otherwise affect the purposes liability of these Guaranteesany Guarantor hereunder who shall, notwithstanding any stay, injunction such payment or payments (other prohibition preventing than payments made by such acceleration Guarantor in respect of the Obligations guaranteed herebyor payments received or collected from such Guarantor in respect of the Obligations), and (y) in remain liable for the event of any declaration of acceleration Obligations, up to the maximum liability of such Guarantor hereunder until the Obligations as provided are paid in Article VII hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guaranteesfull.
Appears in 2 contracts
Sources: Credit Agreement (Time Warner Inc), Credit Agreement (Time Warner Inc)
Guarantees. Subject 3. At issuance, the Notes will not be guaranteed. If, after the date of this Supplemental Indenture, (i) the Notes are not secured obligations on a pari passu basis with the obligations under the Company’s then primary credit facility (other than Permitted Liens) by perfected first-priority security interests in the same assets that constitute Collateral securing the obligations of the Company thereunder and (ii)(a) the Company’s then primary credit facility has the benefit of any guarantee from its Domestic Subsidiaries or (b) the Company or one or more of its Domestic Subsidiaries enters into a guarantee of Senior Indebtedness (including under the Credit Agreement) or one or more of its Domestic Subsidiaries incurs Senior Indebtedness, in each case where the Indebtedness described in clauses (ii)(a) or (ii)(b) in the aggregate, and without duplication in the amount of Indebtedness being calculated, on a consolidated basis outstanding at such time exceeds the Triggering Amount, then the Company shall, within 15 business days, cause each Domestic Subsidiary that is then a guarantor of the Company’s then primary credit facility to execute and deliver to the provisions Trustee a supplemental indenture substantially in the form of this Article XI, each Exhibit B hereto pursuant to which such Domestic Subsidiary will guarantee (such guarantee being referred to as the “Triggering Guarantee”) payment of the Notes on a full and unconditional senior unsecured basis with such limitations as are set forth in the Triggering Guarantee.
(a) Each Domestic Subsidiary Guarantors herebythat is required to deliver a guarantee pursuant to subsection (a) above (each, a “Guarantor”) hereby jointly and severally, irrevocably and unconditionally guarantees guarantees, 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 (i) the full and its successors and assignspunctual payment when due, irrespective whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations of the validity Company under the Indenture (including obligations to the Trustee) and enforceability the Notes, whether for payment of principal of, premium, if any, or interest on in respect of the Notes and all other monetary obligations of the Company under the Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under the Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations” and each such guarantee, a “Guarantee”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from any Guarantor, and that each Guarantor shall remain bound under this Article 6 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 or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under the Indenture, the Notes or any other agreement or otherwise; (ii) any extension or renewal of the Indenture, the Notes or the any other Obligations agreement; (iii) any rescission, waiver, amendment or modification of any of the Issuers hereunder terms or thereunderprovisions of the Indenture, that: the Notes or any other agreement; (aiv) the failure of any Holder or Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (v) any change in the ownership of each Guarantor, except as provided in Section 6.02(b) or Section 6.02(c). Each Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Guarantors, such that such Guarantor’s obligations would be less than the full amount claimed.
(c) Each 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 when due (and not a guarantee of collection) and waives any right to require that any resort be had by any holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) The Guarantee of each Guarantor is, to the extent and in the manner set forth in Article 6, equal in right of payment to all existing and future pari passu Indebtedness, senior in right of payment to all existing and future subordinated Indebtedness of the Company and subordinated and subject in right of payment to the prior payment in full of the principal ofof and premium, premium if any, and interest on all secured Indebtedness of the relevant Guarantor and is made subject to such provisions of the Indenture.
(f) Except as expressly set forth in Article 12 of the Base indenture and 6.02 and 6.06 of this Supplemental Indenture, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any holder or the Trustee to assert any claim or demand or to enforce any remedy under the 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.
(g) Each Guarantor agrees that its Note Guarantee shall be promptly paid remain in full force and effect until payment in full of all the Guaranteed Obligations. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(h) 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 or interest on any Guaranteed Obligation when and as the same shall become due, whether at the maturity or interest payment or mandatory redemption datematurity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and interest on shall, upon receipt of written demand by the overdue principal ofTrustee, premium and interest on the Notesforthwith pay, if anyor cause to be paid, to the extent lawfulin cash, and all other Obligations of the Issuers to the Holders or the Trustee under an amount equal to the Indenture and sum of (i) the Notes shall be promptly paid in full or performed, all in accordance with the terms of the Indenture and the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any unpaid principal amount of such other Guaranteed Obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly (ii) accrued and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that unpaid interest on such Guaranteed Obligations (but only to the fullest extent permitted not prohibited by applicable law, their ) and (iii) all other monetary obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action Company to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture Holders and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance Trustee.
(other than complete performancei) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Obligations guaranteed herebyGuaranteed Obligations. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantorsit, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VII hereof VI for the purposes of these Guaranteesthe Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (yii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VII hereofVI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purposes of this Section 6.01.
(j) Each Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any holder in enforcing any rights under this Section 6.01.
(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 these Guarantees. the Indenture.
(l) The Subsidiary Guarantors shall have the right foregoing is subject to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guaranteeslimitations required by applicable law.
Appears in 2 contracts
Sources: Second Supplemental Indenture (Wyndham Destinations, Inc.), First Supplemental Indenture (Wyndham Destinations, Inc.)
Guarantees. Subject Article 15 of the Indenture shall apply to the provisions of this Article XINotes. In addition, each from and after the Issue Date, the Issuer or the General Partner, as applicable, shall cause any Subsidiary of the Issuer or the General Partner that guarantees payment of more than $35,000,000 of the Issuer’s indebtedness for money borrowed or more than $35,000,000 of the indebtedness for money borrowed of the Issuer’s or the General Partner’s other Subsidiaries to execute and deliver to the Trustee a supplemental indenture pursuant to which such Subsidiary Guarantors herebyshall guarantee payment of the Notes, jointly whereupon such Subsidiary shall become a Guarantor for all purposes under the Indenture. The Issuer or the General Partner, as applicable, shall cause each Subsidiary that is required to become a Guarantor pursuant to the immediately preceding sentence to promptly execute and severallydeliver to the Trustee a supplemental indenture substantially in the form set forth in Exhibit B to this Supplemental Indenture, unconditionally guarantees or otherwise in form and substance reasonably satisfactory to each Holder the Trustee, evidencing its Guarantee on substantially the terms set forth in Article 15 of a Note authenticated the Indenture. Concurrently therewith, the Issuer or the General Partner, as applicable, shall deliver to the Trustee an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee to the effect that such supplemental indenture has been duly authorized, executed and delivered by the Trustee such Subsidiary and that, subject to applicable bankruptcy, insolvency, fraudulent transfer, fraudulent conveyance, reorganization, moratorium and other laws now or hereafter in effect affecting creditors’ rights or remedies generally and to the Trustee general principles of equity (including standards of materiality, good faith, fair dealing and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) the principal of, premium and interest on the Notes shall be promptly paid in full when duereasonableness), whether considered in a proceeding at the maturity law or interest payment or mandatory redemption dateat equity, by accelerationsuch supplemental indenture is a valid and binding agreement of such subsidiary, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if any, to the extent lawful, and all other Obligations of the Issuers to the Holders or the Trustee under the Indenture and the Notes shall be promptly paid in full or performed, all enforceable against such subsidiary in accordance with the terms of the Indenture and the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guaranteesterms.
Appears in 2 contracts
Sources: Second Supplemental Indenture (Columbia Property Trust, Inc.), First Supplemental Indenture (Columbia Property Trust, Inc.)
Guarantees. Subject to the provisions of this Article XI10, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the this Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) that the principal of, premium and interest on the Notes shall be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if any, to the extent lawful, lawful and all other Obligations of the Issuers to the Holders or the Trustee under the this Indenture and the Notes shall be promptly paid in full or performedfull, all in accordance with the terms of the this Indenture and the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the this Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII 6 hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII 6 hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guarantees.
Appears in 2 contracts
Sources: Second Supplemental Indenture (Penn Virginia Resource Partners L P), First Supplemental Indenture (Penn Virginia Resource Partners L P)
Guarantees. Subject To the extent a Member guarantee is required by an institutional lender to the provisions Company, the Board of this Article XI, Directors shall send to each Preferred Member written notice of the Subsidiary Guarantors herebyrequired guarantee including a description of the purpose of the loan the Members are being asked to guarantee, jointly and severally, unconditionally guarantees to each Holder a statement of a Note authenticated and delivered by the Trustee and potential benefits of the loan to the Trustee Company and its successors the Members who guarantee the loan and assigns, irrespective a statement of the validity and enforceability potential impact upon each Member pursuant to this Section if such Member does not guarantee the loan (the "GUARANTEE NOTICE"). The Preferred Members agree to provide, to a maximum aggregate amount of US$250 Million, a several guarantee of the IndentureCompany's debt according to their respective Percentage Interests. If any Preferred Member fails to provide, in whole or in part, a guarantee as specified above, such failure shall not constitute an Event of Default under this Agreement, but the Percentage Interests of the Preferred Members shall be adjusted so that each Preferred Member's Percentage Interest shall be determined by multiplying (1) the aggregate Percentage Interests of all of the Preferred Members times (2) a fraction, the Notes or numerator of which represents the other Obligations aggregate amount of the Issuers hereunder or thereunder, that: (a) the principal of, premium and interest on the Notes shall be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwiseeach Preferred Member's Capital Contribution plus any amount such Member guaranteed as provided for above, and interest on the overdue principal of, premium and interest on denominator of which represents the Notes, if any, to the extent lawful, and sum of all other Obligations of the Issuers to the Holders or the Trustee under the Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of the Indenture and the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance Preferred Members' Capital Contributions (other than complete performanceCommon Members) which might otherwise constitute plus the total amount guaranteed by the Members. In addition, the Unpaid Capital Preference and Capital Account of the Preferred Member who fails to approve in whole or in part a legal or equitable discharge or defense of a Subsidiary Guarantorguarantee, as specified above, shall be adjusted in substantially the same manner as Percentage Interests. To the fullest extent permitted The Preferred Shares owned by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court Preferred Member shall be adjusted accordingly to reflect such adjustments in each Preferred Member's Percentage Interest. As used in the event preceding sentence, Capital Contributions shall include those portions of insolvency Capital Contributions made by a Defaulting Member or bankruptcy Terminated Member that are credited to the Capital Account Balances of Non-Defaulting Members or Remaining Members following a transfer of part of the Issuers, any Defaulting Member's or Terminated Member's Interest to such Members under clause (ii) of either of Section 3.4.1.4 or Section 10.5. If the failure to guarantee the Company's debt is not a Dilution Event each Member's right to require a proceeding first against receive and obligation to take the Issuers, protest, notice output of the Foundry pursuant to the Purchase Agreement and all demands whatsoever and covenants that its Guarantee Future Purchase Agreement shall not be discharged except by complete performance affected. However, if such failure is a Dilution Event, the Members' right to receive and obligation to take the output of the obligations contained in Foundry pursuant to the Notes Purchase Agreement and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, Future Purchase Agreement shall be reinstated adjusted contemporaneously to reflect the change in full force and effectPercentage Interests. Each Subsidiary Guarantor agrees that it Additionally, if a Member fails to provide a guarantee as specified above, such Member shall not be entitled to acquire directly or indirectly any right Products of subrogation in relation to the Holders in respect Company, the production of which has been funded, enabled or otherwise facilitated by the proceeds of any Obligations guaranteed hereby until payment in full Company debt such Member failed to guarantee, the production of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) which was described in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these GuaranteesGuarantee Notice.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Integrated Silicon Solution Inc), Limited Liability Company Agreement (Altera Corp)
Guarantees. Subject (a) Vale hereby absolutely, unconditionally and irrevocably guarantees in favour of the Purchaser the payment of all monetary liabilities and obligations of the Seller under this Agreement including any damages or Losses owing by the Seller pursuant to this Agreement on account of a breach by the Seller of any of its representations or warranties given under this Agreement or pursuant to a certificate delivered pursuant hereto or a breach by Seller of its covenants or other obligations under this Agreement (collectively, the “Vale Guaranteed Obligations”). Vale agrees that all amounts owing by Vale under this Section 11.1(a) shall be payable by Vale to the Purchaser promptly after receipt of written demand from the Purchaser (a “Payment Demand”) following the occurrence of a Vale Entity Event of Default that is continuing. Vale shall not be required to make any such payments hereunder in respect of any amount owed by the Seller to the Purchaser pursuant to Section 2.5 which has been validly asserted and set off pursuant to Section 15.4.
(b) The Project Owner hereby absolutely, unconditionally and irrevocably guarantees in favour of the Purchaser the prompt and complete payment, observance and performance of all liabilities and obligations of the Seller under this Agreement including any damages or Losses owing by the Seller pursuant to this Agreement on account of a breach by the Seller of any of its representations or warranties given under this Agreement or pursuant to a certificate delivered pursuant hereto or a breach by Seller of its covenants or other obligations under this Agreement (collectively, the “Project Owner Guaranteed Obligations”). The Project Owner shall promptly upon demand by the Purchaser observe, pay and perform such Project Owner Guaranteed Obligations upon the default or non-performance thereof by the Seller pursuant to the provisions of this Article XI, each Agreement.
(c) The foregoing agreements of the Subsidiary Guarantors herebyare absolute, jointly unconditional, present and severallycontinuing and are in no way conditional or contingent upon any event, unconditionally guarantees to each Holder of circumstance, action or omission which might in any way discharge a Note authenticated and delivered guarantor or surety in whole or in part.
(d) Each Payment Demand shall identify the relevant breach by the Trustee Seller of its obligations under this Agreement; provided that failure by the Purchaser to provide such information shall not relieve Vale of its obligation to pay in accordance with Section 11.1(a).
(e) For greater certainty, the guarantee described in Section 11.1(a) is a guarantee of payment only, and not of performance. Nothing contained in this Article 11 shall oblige Vale to perform, or refrain from performing, or to procure the Trustee and its successors and assigns, irrespective performance or non-performance of the validity and enforceability Guaranteed Obligations or any part thereof save for the payment of money in respect of the Indenture, the Notes or the other Obligations breach of the Issuers hereunder or thereunder, that: (a) the principal of, premium and interest on the Notes shall be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if any, to the extent lawful, and all other Guaranteed Obligations of the Issuers to the Holders or the Trustee under the Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of Section 11.1(a). Nothing contained in this Article 11 shall oblige Vale to carry out, discharge or perform, or procure the Indenture carrying-out, discharging or performance of, any other obligations of the Seller or the Project Owner to the Purchaser.
(f) Each Guarantor, as principal obligor and as a separate and independent obligation and liability from its obligations and liabilities under Section 11.1(a) or 11.1(b), as applicable, agrees to indemnify and keep indemnified the NotesPurchaser in full from and against all and any Losses suffered or incurred by the Purchaser arising out of, or in connection with:
(i) any failure of the Seller to perform or discharge the Guaranteed Obligations; and or
(bii) in case total or partial unenforceability of any extension Guaranteed Obligation by reason of time illegality, incapacity, lack or exceeding of payment powers, ineffectiveness of execution or renewal otherwise (a “Lack of any Notes or any of Enforceability”), and each Guarantor agrees that all indemnified amounts owing by such other Obligations, that same Guarantor under this Section 11.1(f) shall be payable by such Guarantor to the Purchaser promptly paid in full when due or performed in accordance with upon demand by the terms Purchaser.
(g) The obligations of the extension Guarantors under this Section 11.1 are continuing, unconditional and absolute and, without limiting the generality of the foregoing, will not be released, discharged, limited or renewal, subject to any applicable grace period, whether at Stated Maturity, otherwise affected by acceleration or otherwise. Failing payment when so due (and each of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that consents to or waives, as applicable, to the fullest extent permitted by applicable lawApplicable Law):
(i) any extension, their obligations hereunder shall be unconditionalother indulgence, irrespective renewal, settlement, discharge, compromise, waiver, subordination or release in respect of any of the validityGuaranteed Obligations;
(ii) any modification or amendment of or supplement to the Guaranteed Obligations, regularity including any increase or enforceability decrease in the amounts payable thereunder including any amendment to this Agreement (other than this Section 11.1) for which the Guarantors’ consent was not obtained;
(iii) any release, non-perfection or invalidity of any direct or indirect security for any Guaranteed Obligations;
(iv) any Insolvency Event affecting the Seller, any Guarantor or any other Person or their property;
(v) any Change of Control of the Notes Seller, any Guarantor or any other Person, or any Transfer of all of or any part of the Seller, the Project Owner or Vale’s interest in this Agreement or in any Guaranteed Obligations;
(vi) subject to the right of the Guarantors under the proviso immediately following Section 11.1(g)(xxii),the existence of any claim, set off or other rights which the Guarantors may have at any time against the Seller, the Purchaser or any other Person;
(vii) any invalidity, illegality or unenforceability relating to or against the Seller or any Guarantor or any provision of Applicable Law or regulation purporting to prohibit the payment by the Seller or any Guarantor of any amount in respect of the Guaranteed Obligations;
(viii) any limitation, postponement, prohibition, subordination or other restriction on the rights of the Purchaser to payment of the Guaranteed Obligations;
(ix) any Transfer by the Project Owner of its right, title or interest in and to any of the Project Assets, or any other action taken or not taken by the Project Owner;
(x) any release, substitution or addition of any co-signer, endorser or other guarantor of the Guaranteed Obligations except to the extent that this Agreement expressly provides for a release or replacement of the Guarantors from the Guaranteed Obligations in such circumstances;
(xi) any defence arising by reason of any failure of the Purchaser to make any presentment, demand for performance, notice of non-performance, protest or any other notice, including notice of acceptance of this Agreement, partial payment or non-payment of any Guaranteed Obligations or the Indentureexistence, creation or incurring of new or additional Guaranteed Obligations;
(xii) any defence arising by reason of any failure of the Purchaser to proceed against the Seller, any Guarantor or any other Person, to apply or exhaust any security held from the Seller, any Guarantor or any other Person for the Guaranteed Obligations, or to pursue any other remedy of the Purchaser whatsoever;
(xiii) any Applicable Law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(xiv) any defence arising by reason of any incapacity, lack of authority, or other defence of the Seller, any Guarantor or any other Person, or by reason of any limitation, postponement, prohibition on the Purchaser’s right to payment of any Guaranteed Obligations, or by reason of the cessation from any cause whatsoever of the liability of the Seller, any Guarantor or any other Person in respect of any Guaranteed Obligations, or by reason of any act or omission of the Purchaser or others which directly or indirectly results in the discharge or release of the Seller, any Guarantor or any other Person or all or any part of the Guaranteed Obligations, or any security or guarantee therefor, whether by contract, operation of Applicable Law or otherwise;
(xv) any defence arising by reason of any failure by the Purchaser to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller, any Guarantor or any other Person, or by reason of any interest of the Purchaser in any property, whether as supplier thereof or the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Purchaser of any right to recourse or collateral;
(xvi) any defence arising by reason of the failure of the Purchaser to marshal any property;
(xvii) any defence based upon any failure of the Purchaser to give to the Seller, any Guarantor or any other Person notice of any sale or other disposition of any property securing any Guaranteed Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Purchaser to comply with any Applicable Law in enforcing any security interest in or lien upon any such property, including any failure by the Purchaser to dispose of any such property in a commercially reasonable manner;
(xviii) any dealing whatsoever with the Seller, any Guarantor or any other Person or any security, whether negligently or not, or any failure of the Purchaser to take any action;
(xix) any Transfer by the Seller or Purchaser of this Agreement or any Guaranteed Obligations, in whole or in part;
(xx) any consolidation, amalgamation with, merger with or into, Transfer of assets (whether all or partial), continuance, reorganization, reincorporation, reconstitution as another entity, by or in respect of the Seller or any other similar matter undertaken by Seller;
(xxi) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller, any Guarantor or any other Person, including any discharge of, or bar against collecting, any Guaranteed Obligations, in or as a result of any such proceeding; or
(xxii) any other act or omission to act or delay of any kind by any the Seller, any Guarantor, the absence of Purchaser, or any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same other Person or any other circumstance (other than complete performance) whatsoever, whether similar or dissimilar to the foregoing, which might otherwise might, but for the provisions of this paragraph, constitute a legal or equitable discharge discharge, limitation or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance reduction of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until Guarantor hereunder (other than the payment or performance in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees of the Guaranteed Obligations), provided that, as between notwithstanding anything to the Subsidiary Guarantorscontrary herein, on each Guarantor expressly reserves the one handright to assert any counterclaim or setoff which the Seller is or would have been entitled to assert (other than defenses in respect of Lack of Enforceability).
(h) Without limiting the generality of the foregoing and without releasing, discharging, limiting or otherwise affecting in whole or in part any Guarantor's liability hereunder, without obtaining the consent of or giving notice to any Guarantor, the Purchaser may:
(i) grant time, renewals, extensions, indulgences, releases and discharges to the Seller;
(ii) take or abstain from taking or enforcing securities or collateral from the Seller or from perfecting securities or collateral of the Seller; and
(iii) accept compromises from the Seller.
(i) The provisions of this Section 11.1 apply (and the Holders and waivers set out herein will be effective) even if the Trustee, on effect of any action (or failure to take action) by the Purchaser is to destroy or diminish any subrogation rights of any Guarantor or any rights of any Guarantor to proceed against the Seller or any other hand, (x) the maturity Person for reimbursement or to recover any contribution from any other guarantor or any other right or remedy of the Obligations guaranteed hereby Guarantors.
(j) The Purchaser shall not be bound to exhaust its recourse against the Seller, any Guarantor or any other Persons or to realize on any security it may be accelerated as provided in Article VII hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration hold in respect of the Guaranteed Obligations guaranteed herebybefore being entitled to payment or performance from the Guarantors under this Section 11.1 and each of the Guarantors hereby renounces all benefits of discussion and division.
(k) In the event of a breach of any of the Guaranteed Obligations, the Purchaser is entitled to make claim and to pursue its remedies in respect thereof against any one or any combination of the Seller and Guarantors as described in Section 11.1(a), provided that in no event shall the obligations of the Guarantors under this Section 11.1 be interpreted to allow the Purchaser to recover more from the Guarantors, the Seller or any combination of the payments from such parties, than it could have recovered from the Seller in respect of such breach (or would have been recoverable in the absence of any Lack of Enforceability or any Insolvency Event applicable to the Seller), net of any set-off that would be permitted in accordance with Section 15.4 in respect of such breach.
(l) This Section 11.1 shall continue and apply to any ultimate unpaid or unperformed balance of the Guaranteed Obligations and shall be reinstated if at any time payment or performance of any of the Guaranteed Obligations is rescinded or must otherwise be returned or reversed by the Purchaser upon the occurrence of an Insolvency Event applicable to the Seller or any Guarantor or for any other reason whatsoever, all as though such payment or performance had not been made.
(m) In the event that the Purchaser shall receive any payments or performance on account of the Guaranteed Obligations from the Guarantors, the realization of any security or otherwise, the Guarantors shall have no right to make any claims for repayment or contribution or to exercise any rights of subrogation against any Vale Entity, and all such rights are hereby expressly waived, until the Guaranteed Obligations have been fully and completely paid, performed or otherwise satisfied.
(yn) In the event of an Insolvency Event applicable to the Seller or any Guarantor or in the event that the Seller or Guarantor shall make a bulk sale of any declaration of acceleration its assets within the bulk transfer provisions of such Obligations as provided in Article VII hereofany applicable legislation or any composition with creditors or scheme of arrangement, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors Purchaser shall have the right to seek contribution from rank in priority to the Guarantors for its claim in respect of the Guaranteed Obligations and to receive all dividends or other payments in respect thereof until the Guaranteed Obligations have been fully and completely paid, performed or otherwise satisfied, all without prejudice to its claim against the Guarantors who shall continue to be liable for any non-paying Subsidiary remaining unpaid or unperformed balance of the Guaranteed Obligations.
(o) Each guarantee in this Article 11 is a continuing guarantee which shall remain in full force and effect notwithstanding any intermediate or partial satisfaction or performance of the Guaranteed Obligations by the Seller, any Guarantor so long as or any other Person.
(p) The liability of each Guarantor under this Article 11 shall not be reduced, discharged or otherwise adversely affected by any act, omission, matter or thing which would have discharged or affected the exercise liability of such Guarantor had it been a principal obligor instead of a guarantor, or indemnifier, or by anything done or omitted by any Person which, but for this provision, might operate or exonerate or discharge such Guarantor or otherwise reduce or extinguish its liability under this Article 11; except to the extent such matters reduce the Guaranteed Obligations as against the Seller.
(q) Each Guarantor waives any right does it may have to require the Purchaser (or any trustee or agent on its behalf) to proceed against or enforce any other right or claim for payment against the Seller before claiming from such Guarantor under this Article 11.
(r) Each guarantee in this Article 11 is in addition to and shall not impair affect nor be affected by or merge with any other judgment, security, right or remedy obtained or held by the rights Purchaser from time to time in respect of the Holders under these Guaranteesdischarge and performance of the Guaranteed Obligations by the Seller.
(s) Without prejudice to the sequence and time periods for making demands, the Guarantors expressly wai
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement
Guarantees. (a) Subject to the provisions of this Article XI13, each of the Subsidiary Guarantors hereby, jointly and severally, fully and unconditionally guarantees guarantee to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the this Indenture, the Notes or held thereby and the other Obligations obligations of the Issuers Company hereunder or and thereunder, that: (ai) the principal of, premium of and interest on the Notes shall will be promptly paid in full when due, subject to any applicable grace period, whether at the maturity or interest payment or mandatory redemption dateMaturity Date, by acceleration, redemption upon redemption, upon prepayment or otherwise, and interest on the overdue principal of, premium of and (to the extent permitted by law) interest on the Notes, if any, to and the extent lawfulSettlement Amounts upon exchange will be promptly paid and/or delivered in full when due upon exchange, and all other Obligations payment obligations of the Issuers Company to the Holders or the Trustee under the Indenture and the Notes shall hereunder or thereunder will be promptly paid in full or and performed, all in accordance with the terms of the Indenture hereof and the Notesthereof; and (bii) in case of any extension of time of payment or renewal of any Notes or any of such other Obligationsobligations, that the same shall will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturitythe Maturity Date, by acceleration acceleration, upon redemption, upon prepayment or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be will be, jointly and severally severally, obligated to pay the same immediately. An Event of Default with respect to the Notes under this Indenture shall constitute an event of default under the Guarantees, and shall entitle the Holders to accelerate the obligations of the Guarantors hereunder in the same manner and to the same extent as the obligations of the Company.
(b) The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their respective obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Noteshereof or thereof, the recovery of any judgment against the IssuersCompany, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To Each Guarantor further, to the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the IssuersCompany, any right to require a proceeding first against the IssuersCompany, protest, notice and all demands whatsoever and covenants that its Guarantee shall will not be discharged except by complete performance of the obligations contained in the Notes and this Indenture, or pursuant to Section 13.03.
(c) Each of the Indenture. Guarantors also agrees, jointly and severally, to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 13.01.
(d) If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Company, the Guarantors, or any custodianCustodian, trustee, liquidator Trustee or other similar official acting in relation to either the Issuers Company or Subsidiary the Guarantors, any amount paid by the Company or any of them Guarantor to the Trustee or such Holder, these the Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. .
(e) Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (xa) the maturity of the Obligations obligations guaranteed hereby may be accelerated as provided in Article VII hereof 6 of this Indenture for the purposes of these Guaranteesits Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations obligations guaranteed herebythereby, and (yb) in the event of any declaration of acceleration of such Obligations obligations as provided in Article VII hereof6 of this Indenture, such Obligations obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors such Guarantor for the purpose of these Guaranteesits Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these the Guarantees.
(f) Each Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or the Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
(g) In case any provision of any Guarantee shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
(h) Each payment to be made by a Guarantor in respect of its Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature (provided that Additional Amounts payable pursuant to Section 4.07 shall remain payable).
(i) For the avoidance of doubt, the Guarantees with respect to a Note are not convertible and shall automatically terminate when such Note is exchanged in accordance with this Indenture.
Appears in 2 contracts
Guarantees. Subject to the provisions of this Article XI10, each of the Subsidiary Guarantors hereby, jointly and severally, fully and unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the this Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) the principal of, premium and interest (including Additional Interest, if any) on the Notes shall be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest (including Additional Interest, if any) on the Notes, if any, to the extent lawful, and all other Obligations of the Issuers to the Holders or the Trustee under the this Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of the this Indenture and the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that the same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors Each Guarantor hereby agree agrees that to the fullest extent permitted by applicable law, their its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the this Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII 6 hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII 6 hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guarantees. Each Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against an Issuer for liquidation, reorganization, should such Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuers’ assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. The Guarantee issued by any Guarantor shall be a general unsecured senior obligation of such Guarantor and shall be pari passu in right of payment with all existing and future Senior Indebtedness of such Guarantor, if any. Each payment to be made by a Guarantor in respect of its Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature. Notwithstanding anything to the contrary, any direct or indirect parent company of the Company may guarantee the Notes and become a Guarantor hereunder.
Appears in 2 contracts
Sources: Indenture (Atlas Resource Partners, L.P.), Indenture (Atlas Energy Resources, LLC)
Guarantees. (a) Subject to the provisions of this Article XI13, each of the Subsidiary Guarantors hereby, as a primary obligor and not merely as surety, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee, the Collateral Trustee and its their successors and assigns, irrespective of the validity and enforceability of the this Indenture, the Notes or the other Obligations obligations of the Issuers Company hereunder or thereunder, that: :
(ai) the principal of, premium premium, if any, and interest on on, the Notes shall and such other Obligations will be promptly paid in full in cash when due, whether at the maturity or interest payment or mandatory redemption datematurity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium of and interest on the Notes, if any, to the extent if lawful, and all other Obligations obligations of the Issuers Company to the Holders Holders, the Trustee or the Collateral Trustee under the Indenture and the Notes shall hereunder or thereunder will be promptly paid in full in cash or performed, all in accordance with the terms of the Indenture hereof and the Notes; and thereof, and
(bii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations (including Obligations), that same shall will be promptly paid in full in cash when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturitymaturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(b) The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be are unconditional, irrespective of the validity, regularity or enforceability of the Notes or the this Indenture, the absence of any action to enforce the same, any amendment, waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Noteshereof or thereof, the recovery of any judgment against the IssuersCompany or any other Guarantor, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Each Guarantor hereby unconditionally and irrevocably waives and agrees not to assert any claim, defense, setoff or counterclaim based on diligence, promptness, presentment, requirements for any demand of payment, filing of claims with a court in the event of insolvency or bankruptcy notice hereunder including any of the Issuersfollowing: (i) any demand for payment or performance and protest and notice of protest; (ii) any notice of acceptance; (iii) any presentment, demand, protest or further notice or other requirements of any kind with respect to any Obligation (including any accrued but unpaid interest thereon) becoming immediately due and payable; and (iv) any other notice in respect of any Obligation or any part thereof, and any defense arising by reason of any disability or other defense of the Company or any Guarantor. Each Guarantor further unconditionally and irrevocably agrees not to (x) enforce or otherwise exercise any right of subrogation or any right of reimbursement or contribution or similar right against the Company or any Guarantor by reason of any Transaction Document or any payment made thereunder or (y) assert any claim, defense, setoff or counterclaim it may have against the Company or any other Guarantor or set off any of its obligations to the Company or any other Guarantor against obligations of such Guarantor to the Company or such other Guarantor. No obligation of any Guarantor hereunder shall be discharged other than by complete performance. Each Guarantor further waives any right such Guarantor may have under any applicable Requirement of Law to require a proceeding the Trustee, the Collateral Trustee or any Holder to seek recourse first against the IssuersCompany or any other Person, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance or to realize upon any Collateral for any of the Obligations, as a condition precedent to enforcing such Guarantor’s liability and obligations contained in the Notes and the Indenture. under this Article 13.
(c) If any Holder Holder, the Trustee or the Collateral Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by the Company or any of them Guarantor to the Trustee, the Collateral Trustee or such Holder, these Guaranteesthis Guarantee, to the extent theretofore discharged, shall will be reinstated in full force and effect. .
(d) Each Subsidiary Guarantor agrees that it shall will not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations obligations guaranteed hereby until payment in full in cash of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders Holders, the Trustee and the Collateral Trustee, on the other hand, (x1) the maturity of the Obligations obligations guaranteed hereby may be accelerated as provided in Article VII hereof Section 6.02 for the purposes of these Guaranteesthis Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations obligations guaranteed hereby, and (y2) in the event of any declaration of acceleration of such Obligations obligations as provided in Article VII hereof6, such Obligations obligations (whether or not due and payable) shall will forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guaranteesthis Guarantee.
(e) Without limiting the joint and several obligation of the Guarantors to the Trustee, the Collateral Trustee and the Holders, all Guarantors desire to allocate among themselves (collectively, the “Contributing Guarantors”), in a fair and equitable manner, their 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 of the Notes such that its Aggregate Payments exceed its Fair Share as of such date, such Funding Guarantor shall be entitled to a contribution from each of the other Contributing Guarantors in an amount sufficient to cause each Contributing Guarantor’s Aggregate Payments to equal its Fair Share as of such date. “Fair Share” means, with respect to a Contributing Guarantor as of any date of determination, an amount equal to (a) the ratio of (i) 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 its guarantee of the Notes 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 of the Notes that would not render its obligations hereunder or thereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of the Bankruptcy Law 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 13.01, 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 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 distributions made on or before such date by such Contributing Guarantor in respect of its guarantee of the Notes (including in respect of this Section 13.01), minus (2) the aggregate amount of all payments received on or before such date by such Contributing Guarantor from the other Contributing Guarantors as contributions under this Section 13.01. The Subsidiary amounts payable as contributions hereunder shall be determined as of the date which the related payment or distribution is made by the applicable Funding Guarantor. Each Guarantor is a third party beneficiary to the contribution agreement set forth in this Section 13.01. Notwithstanding anything to the contrary, the Guarantors shall not have the right to seek contribution from the Company and any non-paying Subsidiary Guarantor so long as the exercise until payment in full in cash of such right does not impair the rights of the Holders under these Guaranteesall Obligations.
Appears in 1 contract
Guarantees. Subject to the provisions of this Article XI12, each of the Subsidiary Guarantors hereby, Guarantor hereby jointly and severally, severally unconditionally guarantees to each Holder of a Note Security authenticated and delivered made available for delivery by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the this Indenture, the Notes Securities or the other Obligations obligations of the Issuers hereunder Company or thereunderany other Guarantors to the Holders or the Trustee hereunder, that: (a) the principal of, premium of and interest on the Notes shall Securities will be promptly duly and punctually paid in full when due, whether at the maturity or interest payment or mandatory redemption datematurity, by acceleration, redemption acceleration or otherwise, and interest on the overdue principal of, premium and interest on (to the Notesextent permitted by law) interest, if any, to on the extent lawful, Securities and all other Obligations of on the Issuers to the Holders or the Trustee under the Indenture and the Notes shall Securities will be promptly paid in full or performed, all in accordance with the terms of the Indenture hereof and the Notesthereof; and (b) in case of any extension of time of payment or renewal of any Notes Securities or any of such other ObligationsObligations on the Securities, that the same shall will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturityfinal stated maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed guaranteed, for whatever reason, the Subsidiary Guarantors shall each Guarantor will be jointly and severally obligated to pay the same immediately. The Subsidiary An Event of Default under this Indenture or the Securities shall constitute an event of default under the Guarantees, and shall entitle the Holders of Securities to accelerate the obligations of the Guarantors hereunder in the same manner and to the same extent as the obligations of the Company on the Securities. Each of the Guarantors hereby agree agrees that to the fullest extent permitted by applicable law, their its obligations hereunder shall be unconditional, irrespective of the validity, regularity regularly or enforceability of the Notes Securities or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Securities with respect to any provisions hereof or thereof, any release of the Indenture and the Notesany other Guarantor, the recovery of any judgment against the IssuersCompany, any an action to enforce the same same, whether or not a Guarantee is affixed to any particular Security, or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantorguarantor. To Each of the fullest extent permitted by applicable law, each Subsidiary Guarantor Guarantors hereby waives the benefit of diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the IssuersCompany, any right to require a proceeding first against the IssuersCompany, protest, notice and all demands whatsoever and covenants that its Guarantee shall will not be discharged except by complete performance of the obligations contained in the Notes Securities, this Indenture and the IndentureGuarantee. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers Company or Subsidiary Guarantorsto any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers Company or Subsidiary Guarantorssuch Guarantor, any amount paid by any of them the Company or such Guarantor to the Trustee or such Holder, these the Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantorsit, on the one hand, and the Holders of Securities and the Trustee, on the other hand, (xa) subject to this Article 12, the maturity of the Obligations obligations guaranteed hereby may be accelerated as provided in Article VII hereof Section 6.02 for the purposes of these the Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations obligations guaranteed hereby, and (yb) in the event of any declaration of acceleration of such Obligations obligations as provided in Article VII hereofSection 6.02, such Obligations obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these the Guarantees. The Subsidiary Guarantors Guarantees shall have remain in full force and effect and continue to be effective should any petition be filed by or against the right to seek contribution from Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights significant part of the Holders under these Guarantees.Company's assets, and shall, to the fullest extent permitted by law, continue to be
Appears in 1 contract
Guarantees. Subject to the provisions of this Article XIFourteen, to the extent provided for in any series of Securities under this Indenture, each of the Subsidiary Guarantors hereby, Guarantor hereby jointly and severallyseverally irrevocably and unconditionally Guarantees, unconditionally guarantees 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, irrespective of the validity and enforceability of the Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: assigns (a) the principal of, premium full and interest on the Notes shall be promptly paid in full punctual payment when due, whether at the maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if any, to the extent lawful, and all other Obligations of the Issuers to the Holders or the Trustee under the Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of the Indenture and the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee) and the Securities, whether for payment of principal of or interest on the Securities and all other monetary obligations of the Company under this Indenture and the Securities and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Securities (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Failing payment when so due 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 Fourteen notwithstanding any extension or renewal of any amount so guaranteed or Guaranteed Obligation. Subject to this Article Fourteen, to the extent provided for in any performance so guaranteed for whatever reasonseries of Securities under this Indenture, the Subsidiary Guarantors shall be Parent Guarantor hereby jointly and severally obligated irrevocably and unconditionally Guarantees, as a primary obligor and not merely as a surety, to pay the same immediately. The Subsidiary Guarantors hereby agree that each Holder and to the fullest extent permitted Trustee and its successors and assigns (a) the full and punctual payment when due, whether at Stated Maturity, by applicable lawacceleration, their by redemption or otherwise, of all obligations hereunder shall be unconditional, irrespective of the validityCompany under this Indenture (including obligations to the Trustee) and the Securities, regularity whether for payment of principal of or enforceability interest on the Securities and all other monetary obligations of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Company under this Indenture and the NotesSecurities and (b) the full and punctual performance within applicable grace periods of all other Guaranteed Obligations under this Indenture and the Securities. The Parent Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from the recovery Parent Guarantor, and that the Parent Guarantor shall remain bound under this Article Fourteen notwithstanding any extension or renewal of any judgment against Guaranteed Obligation. Each of the Issuers, any action to enforce Guarantors and the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Parent Guarantor hereby waives diligence, presentmentpresentation to, demand of payment, filing payment from and protest to the Company of claims with a court in the event of insolvency or bankruptcy any of the Issuers, Guaranteed Obligations and also waives notice of protest for nonpayment. Each of the Guarantors and the Parent Guarantor waives notice of any right to require a proceeding first against default under the Issuers, protest, notice Securities or the Guaranteed Obligations. The obligations of each of the Guarantors and all demands whatsoever and covenants that its Guarantee the Parent Guarantor hereunder shall not be discharged except affected by complete performance (a) the failure of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Securities or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Securities or any other agreement; (d) the release of any security held by any court Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (f) any change in the ownership of such Guarantor or the Parent Guarantor, except as provided in Section 14.03. Each of the Guarantors and the Parent Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Guarantors and the Parent Guarantor, such that such Guarantor’s obligations or the Parent Guarantor’s obligations would be less than the full amount claimed. Each of the Guarantors and the Parent 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 or the Parent Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor or the Parent Guarantor hereunder. Each of the Guarantors and the Parent 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 or the Parent Guarantor. Each of the Guarantors and the Parent Guarantor further agrees that its Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. Except as expressly set forth in Sections 13.02, 14.02 and 14.03, the obligations of each of the Guarantors and the Parent 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 of the Guarantors and the Parent Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to return assert any claim or demand or to enforce any remedy under this Indenture, the Issuers Securities or Subsidiary Guarantorsany other agreement, by any waiver or modification of any thereof, by any default, failure or delay, wilful or otherwise, in the performance of the obligations, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid 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 them to any Guarantor or the Trustee Parent Guarantor or such Holder, these Guarantees, to would otherwise operate as a discharge of any Guarantor or the extent theretofore discharged, Parent Guarantor as a matter of law or equity. Each of the Guarantors and the Parent Guarantor agrees that its Guarantee is a continuing Guarantee and shall be reinstated remain in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby effect until payment in full of all Obligations guaranteed herebythe Guaranteed Obligations. Each Subsidiary of the Guarantors and the Parent 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 or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. 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 or the Parent 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 of the Guarantors and the Parent 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 or the Trustee an amount equal to the sum of (a) the unpaid principal amount of such Guaranteed Obligations, (b) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (c) all other monetary obligations of the Company to the Holders and the Trustee. Each of the Guarantors and the Parent Guarantor agrees that, as between the Subsidiary Guarantorsit, on the one hand, and the Holders and the Trustee, on the other hand, (xa) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VII hereof Five for the purposes of these Guaranteesany Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (yb) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VII hereofFive, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor or the Subsidiary Parent Guarantor for the purposes of this Section 14.01. Each of the Guarantors for and the Parent Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 14.01. Upon request of the Trustee, each of the Guarantors and the Parent 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 these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guaranteesthis Indenture.
Appears in 1 contract
Sources: Indenture (O&M Halyard, Inc.)
Guarantees. Subject to the provisions of this Article XISection 10, each of the Subsidiary Guarantors hereby, jointly and severallyGuarantor hereby fully, unconditionally guarantees and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several senior secured basis, to each Holder of a Note authenticated the Notes, and delivered by the Trustee the due and punctual payment, of the principal of (and premium, if any) and interest (including, in case of default, interest on principal and, to the Trustee extent permitted by applicable law, on overdue interest and its successors and assigns, irrespective including any additional interest required to be paid according to the terms of the validity and enforceability of the IndentureNotes), the Notes or the other Obligations of the Issuers hereunder or thereunderif any, that: (a) the principal of, premium and interest on the Notes shall be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if any, to when and as the extent lawful, and all other Obligations of the Issuers to the Holders or the Trustee under the Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of the Indenture and the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that same shall be promptly paid in full when become due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace periodand payable, whether at Stated Maturity, by acceleration upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that according to the fullest extent permitted by applicable law, their terms thereof and of this Indenture and all other obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Company with respect to any provisions of the Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If to any Holder or the Trustee is required hereunder or thereunder. Each Note Guarantee will be secured by any court or otherwise first priority security interests (subject to return to Permitted Liens) in the Issuers or Subsidiary GuarantorsCollateral owned by such Guarantor. Each Guarantor agrees that the Guarantor Obligations shall rank equally in right of payment with other Indebtedness of such Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, except to the extent theretofore dischargedsuch other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees shall rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees shall rank junior in right of payment to such claims. To evidence its Note Guarantee set forth in this Section 10.1, each Guarantor hereby agrees that this Indenture (or a supplement thereto) shall be reinstated executed on behalf of such Guarantor by an Officer of such Guarantor. Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.1 shall remain in full force and effecteffect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes. If an Officer whose signature is on this Indenture (or a supplement thereto) no longer holds that office at the time the Trustee authenticates the Note, the Note Guarantee shall be valid nevertheless. Each Subsidiary 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 it, and that it shall not be entitled to remain bound under this Section 10.1 notwithstanding any right extension or renewal of subrogation in relation any Guarantor Obligation. Each Guarantor waives presentation to, demand of payment from and protest to the Holders in respect Company of any of the Guarantor Obligations guaranteed hereby until payment in full and also waives notice of all Obligations guaranteed herebyprotest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guarantor Obligations. Each Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, that its Note Guarantee herein constitutes a guarantee of payment when due (and the Holders not a guarantee of collection) and the Trustee, on the other hand, (x) the maturity waives any right to require that any resort be had by any Holder to any security held for payment of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these GuaranteesObligations.
Appears in 1 contract
Sources: Indenture (Allegiant Travel CO)
Guarantees. Subject to the provisions of this Article XITen A, each of the Subsidiary Guarantors hereby, Guarantor hereby jointly and severally, severally unconditionally guarantees to each Holder of a Note Security authenticated and delivered made available for delivery by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the this Indenture, the Notes Securities or the other Obligations obligations of the Issuers hereunder Company or thereunderany other Guarantors to the Holders or the Trustee hereunder, that: (a) the principal of, premium of and interest on the Notes shall Securities will be promptly duly and punctually paid in full when due, whether at the maturity or interest payment or mandatory redemption datematurity, by acceleration, redemption acceleration or otherwise, and interest on the overdue principal of, premium and interest on (to the Notesextent permitted by law) interest, if any, to on the extent lawful, Securities and all other Obligations of on the Issuers to the Holders or the Trustee under the Indenture and the Notes shall Securities will be promptly paid in full or performed, all in accordance with the terms of the Indenture hereof and the Notesthereof; and (b) in case of any extension of time of payment or renewal of any Notes Securities or any of such other ObligationsObligations on the Securities, that the same shall will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturityfinal stated maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed guaranteed, for whatever reason, the Subsidiary Guarantors shall each Guarantor will be jointly and severally obligated to pay the same immediately. The Subsidiary An Event of Default under this Indenture or the Securities shall constitute an event of default under the Guarantees, and shall entitle the Holders of Securities to accelerate the obligations of the Guarantors hereunder in the same manner and to the same extent as the Obligations of the Company on the Securities. Each of the Guarantors hereby agree agrees that to the fullest extent permitted by applicable law, their its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes Securities or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Securities with respect to any provisions hereof or thereof, any release of the Indenture and the Notesany other Guarantor, the recovery of any judgment against the IssuersCompany, any action to enforce the same same, whether or not a Guarantee is affixed to any particular Security, or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantorguarantor. To Each of the fullest extent permitted by applicable law, each Subsidiary Guarantor Guarantors hereby waives the benefit of diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the IssuersCompany, any right to require a proceeding 99 -91- first against the IssuersCompany, protest, notice and all demands whatsoever and covenants that its Guarantee shall will not be discharged except by complete performance of the obligations contained in the Notes Securities, this Indenture and the IndentureGuarantee. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers Company or Subsidiary Guarantorsto any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers Company or Subsidiary Guarantorssuch Guarantor, any amount paid by any of them the Company or such Guarantor to the Trustee or such Holder, these the Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantorsit, on the one hand, and the Holders of Securities and the Trustee, on the other hand, (xa) subject to this Article Ten A, the maturity of the Obligations obligations guaranteed hereby may be accelerated as provided in Article VII hereof Section 6.02 for the purposes of these the Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations obligations guaranteed hereby, and (yb) in the event of any declaration of acceleration of such Obligations obligations as provided in Article VII hereofSection 6.02, such Obligations obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these the Guarantees. The Subsidiary Guarantees shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company's assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Securities are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Securities, whether as a "voidable preference," "fraudulent transfer" or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Securities shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. No stockholder, officer, director, employer or incorporator, past, present or future, of any Guarantor, as such, shall have any personal liability under the Guarantees by reason of his, her or its status as such stockholder, officer, director, employer or incorporator. 100 -92- The Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these the Guarantees. Each Guarantor, and by its acceptance hereof each Holder, hereby confirms that it is the intention of all such parties that in no event shall any Guarantor's obligations under its Guarantee be subject to avoidance under any applicable fraudulent conveyance or similar law of any relevant jurisdiction. Therefore, in the event that the Guarantees would, but for this sentence, be subject to avoidance, then the liability of the Guarantors under the Guarantees shall be reduced to the extent necessary such that such Guarantees shall not be subject to avoidance under the applicable fraudulent conveyance or similar law. Subject to the preceding limitation on liability, the Guarantee of each Guarantor constitutes a guarantee of payment in full when due and not merely a guarantee of collectability.
Appears in 1 contract
Sources: Indenture (Amcast Radio Sales Inc)
Guarantees. Subject to the provisions of this Article XI10, each of the Subsidiary Guarantors hereby, jointly and severally, fully and unconditionally guarantees guarantees, on a senior unsecured basis, to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the this Indenture, the Notes or held thereby and the other Obligations of the Issuers hereunder or and thereunder, that: (a) the principal of, premium premium, if any, and interest on the Notes shall will be promptly paid in full when due, subject to any applicable grace period, whether at the maturity or interest payment or mandatory redemption dateStated Maturity, by acceleration, upon repurchase or redemption or otherwise, and interest on the overdue principal of, premium premium, if any (to the extent permitted by law) and interest on the Notes, if any, to the extent lawful, and all other payment Obligations of the Issuers to the Holders or the Trustee under the Indenture and the Notes shall hereunder or thereunder will be promptly paid in full or and performed, all in accordance with the terms of the Indenture hereof and the Notesthereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that the same shall will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration acceleration, upon repurchase or redemption or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall will be jointly and severally obligated to pay the same immediately. An Event of Default under this Indenture or the Notes shall constitute an event of default under the Guarantees, and shall entitle the Holders to accelerate the obligations of the Guarantors hereunder in the same manner and to the same extent as the Obligations of the Issuers. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Noteshereof or thereof, the recovery of any judgment against the Issuersan Issuer, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To Each Guarantor further, to the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuersan Issuer, any right to require a proceeding first against the Issuersan Issuer, protest, notice and all demands whatsoever and covenants that its Guarantee shall will not be discharged except by complete performance of the obligations Obligations contained in the Notes and the this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to an Issuer, the Issuers or Subsidiary Guarantors, or any custodianCustodian, trustee, liquidator Trustee or other similar official acting in relation to either any of the Issuers or Subsidiary the Guarantors, any amount paid by an Issuer or any of them Guarantor to the Trustee or such Holder, these the Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to to, and hereby waives, any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (xa) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII 6 hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guarantees.its Guarantee,
Appears in 1 contract
Sources: Indenture Agreement (Summit Midstream Partners, LP)
Guarantees. Subject to the provisions of this Article XI, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) Subject to Section 13.3 hereof, Holdings irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, to each Bank and the principal of, premium Administrative Agent and interest on their successors and assigns the Notes shall be promptly paid in full and punctual payment when due, whether at the maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if any, to the extent lawful, and all other Obligations of the Issuers to the Holders or the Trustee under the Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of the Indenture and the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturitymaturity, by acceleration or otherwise, of all Obligations of the Company (collectively, the “Guaranteed Obligations”). Failing payment when so due Holdings waives to the fullest extent permitted by applicable law any and all notice of the creation, renewal, extension or accrual of any amount so guaranteed of the Guaranteed Obligations and notice of or proof of reliance by the Administrative Agent or the Banks upon this Guarantee or acceptance of this Guarantee, and Holdings shall remain bound under this Section 13 notwithstanding any creation, renewal, extension or accrual of any Guaranteed Obligation.
(b) The Guaranteed Obligations shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Guarantee. All dealings between the Company and Holdings, on the one hand, and the Administrative Agent and the Banks, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guarantee.
(c) Subject to Section 13.3 hereof, Holdings agrees that its Guarantee herein is absolute and unconditional, irrespective of the value, genuineness, validity, regularity or enforceability of this Agreement, or any performance so guaranteed for whatever reasonother agreement or instrument referred to herein, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) whatsoever which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable lawsurety or guarantor.
(d) Subject to Section 13.3 hereof, each Subsidiary Guarantor hereby Holdings waives diligence, presentment(i) 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, dishonor or default; (ii) notice of any Default with respect to the Guaranteed Obligations; (iii) notice of the Banks obtaining, amending, substituting for, releasing, waiving or modifying any Lien, if any, hereafter securing the Guaranteed Obligations, or the Administrative Agent’s or Banks’ subordinating, compromising, discharging or releasing such Liens, if any; (iv) all other notices to which the company might otherwise be entitled in connection with the Guarantee; and (v) demand for payment under this Guarantee.
(e) Subject to Section 13.3 hereof, Holdings further agrees that its Guarantee herein constitutes a guarantee of payment, filing performance and compliance when due (and not a guarantee of claims with a court in the event of insolvency or bankruptcy of the Issuers, collection) and waives any right to require a proceeding first (i) that any resort be had by any Bank or the Administrative Agent to any security held for payment of the Guaranteed Obligations or (ii) that the Administrative to proceed against the IssuersCompany or any other guarantor or to require the Administrative Agent to pursue any other remedy or enforce any other right.
(f) Except as expressly set forth in Section 13.2 or 13.3 hereof, protestthe obligations of Holdings hereunder shall not be subject to any reduction, notice limitation, impairment, release or termination in any manner whatsoever for any reason, including (i) by an impairment, modification, change, release or limitation of the liability of the Company or any other guarantor, (ii) by reason of the bankruptcy or insolvency of the Company or any other guarantor or (iii) by reason of the application of the laws and all demands regulations or any foreign jurisdiction, 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.
(g) Subject to Sections 13.2 and covenants 13.3 hereof, Holdings agrees that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated remain in full force and effecteffect until payment in full of all the Guaranteed Obligations. Each Subsidiary Guarantor Subject to Section 13.3 hereof, Holdings further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment of, or any part thereof, principal of or interest on any Guaranteed Obligation by or on behalf of any Person is rescinded or must otherwise be restored by any Bank, the Administrative Agent or any other Person to which Guaranteed Obligations are owed, whether upon the bankruptcy or reorganization of the Company or any of its Subsidiaries or otherwise.
(h) In furtherance of the foregoing and not in limitation of any other right which any Bank or the Administrative Agent has at law or in equity against Holdings by virtue hereof, but subject to Section 13.3 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 repayment or prepayment or otherwise, or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Administrative Agent, forthwith pay, or cause to be paid, in cash, to the Administrative 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 Administrative Agent.
(i) Subject to Section 13.3 hereof, Holdings agrees that it shall not be entitled to any right of subrogation subrogation, indemnity, reimbursement or contribution in relation to the Holders Administrative Agent in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Obligations guaranteed herebyGuaranteed Obligations. Each Subsidiary Guarantor Holdings further agrees that, as between the Subsidiary Guarantorsit, on the one hand, and the Holders and the TrusteeAdministrative Agent, on the other hand, (xi) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VII hereof Section 9 for the purposes of these Guaranteesany Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (yii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VII hereofSection 9, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors Holdings for the purpose purposes of these Guarantees. The Subsidiary Guarantors this Section 13.1.
(j) Holdings further agrees to the extent fully permitted by applicable law that nothing contained herein shall have prevent the right Administrative Agent from suing in any jurisdiction on this Agreement or any other Credit Document or foreclosing its security interest in or Lien on any collateral, if any, securing the Guaranteed Obligations or from exercising any other rights available to seek contribution from it under this Agreement or any non-paying Subsidiary Guarantor so long as instrument of security, if any, and the exercise of such right does not impair the rights any of the Holders aforesaid rights and the completion of any foreclosure proceedings shall not constitute a discharge of Holdings’ obligations hereunder; it being the purpose and intent of Holdings that its obligations hereunder shall be absolute, independent and unconditional under these Guaranteesany and all circumstances.
(k) Subject to Section 13.3 hereof, Holdings also agrees to pay any and all fees, costs and expenses (including reasonable and documented attorneys’ fees and expenses) incurred by the Administrative Agent or any Bank in enforcing any rights under this Section 13.1 (including in connection with any rescission or restoration described in clause (g) above).
Appears in 1 contract
Sources: Credit Agreement (Lazard, Inc.)
Guarantees. Subject to the provisions of this Article XISection 7, each of the Subsidiary Guarantors hereby, jointly and severallyGuarantor hereby fully, unconditionally guarantees and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several senior unsecured basis, to each Holder of a Note authenticated the Notes, and delivered by the Trustee the due and punctual payment, of the principal of (and premium, if any) and interest (including, in case of default, interest on principal and, to the Trustee extent permitted by applicable law, on overdue interest and its successors and assigns, irrespective including any additional interest required to be paid according to the terms of the validity Notes), if any, on the Notes, when and enforceability as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder or the Trustee hereunder or thereunder (the “Guarantor Obligations”). Each Guarantor agrees that the Guarantor Obligations shall rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees shall rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees shall rank junior in right of payment to such claims. To evidence its Note Guarantee set forth in this Section 7.1, each Guarantor hereby agrees that this Indenture (or a supplement thereto) shall be executed on behalf of such Guarantor by an Officer of such Guarantor. Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 7.1 shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes. If an Officer whose signature is on this Indenture (or a supplement thereto) no longer holds that office at the time the Trustee authenticates the Note, the Note Guarantee shall be valid nevertheless. 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 it, and that it shall remain bound under this Section 7.1 notwithstanding any extension or renewal of any Guarantor Obligation. Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations. Each Guarantor further agrees that its Note 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. Except as set forth in Section 7.4, 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 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 Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any 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 the any other Obligations agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the Issuers hereunder terms or thereunderprovisions of this Indenture, that: the Notes or any other agreement; (ad) the release of any security held by any Holder for the Guarantor Obligations; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Company; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (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 such Guarantor as a matter of law or equity. Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 4.5 or Section 7.5 hereof or Section 8.1 of the Base Indenture. 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, premium and premium, if any, or interest on any of the Notes Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise. In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall be promptly paid in full when become due, whether at the maturity or interest payment or mandatory redemption datematurity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and interest on the overdue principal ofwill forthwith pay, premium and interest on the Notesor cause to be paid, if anyin cash, to the extent lawful, and all other Obligations of the Issuers to the Holders or the Trustee under the Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms on behalf of the Indenture Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and the Notes; owing and (bii) in case of any extension of time of payment or renewal of any Notes or any of accrued and unpaid interest on such other Obligations, that same shall be promptly paid in full when Guarantor Obligations then due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance owing (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, but only to the extent theretofore dischargednot prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, shall be reinstated reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in full force and effectsuch proceeding). Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantorssuch Guarantor, on the one hand, and the Holders and the TrusteeHolders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in Article VII hereof this Indenture for the purposes of these Guaranteesits Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby, hereby and (y) in the event of any such declaration of acceleration of such Obligations as provided in Article VII hereofGuarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors Guarantor for the purpose purposes of these Guaranteesthis Note Guarantee. The Subsidiary Guarantors shall have Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of Trustee or the Holders in enforcing any rights under these Guaranteesthis Section 7.1.
Appears in 1 contract
Guarantees. Subject The Guarantor hereby unconditionally guarantees on a senior basis to the provisions of this Article XI, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees Holders from time to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: time (a) the full and prompt payment of the principal of, premium of any Security when and interest on as the Notes same shall be promptly paid in full when become due, whether at the stated maturity or interest payment or mandatory redemption datethereof, by acceleration, redemption or otherwise, and interest on or in the overdue principal ofevent of default in any sinking fund payment, premium and interest on the Notes, if any, to the extent lawful, and all other Obligations of the Issuers to the Holders or the Trustee under the Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of the Indenture and the Notes; and (b) in case the full and prompt payment of any extension of time of payment or renewal of interest on any Notes or any of such other Obligations, that Security when and as the same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewalbecome due, subject to any applicable grace period; provided that, whether at Stated Maturitynotwithstanding anything to the contrary herein, the aggregate amount of the obligations guaranteed under the Indenture by acceleration the Guarantor shall be limited in amount to the maximum amount that would render the Guarantor's obligations subject to avoidance under the applicable fraudulent conveyance provisions of the United States Bankruptcy Code or otherwise. Failing payment when so due any comparable provision of any amount so guaranteed or applicable state law. Each payment by the Guarantor with respect to any performance so guaranteed for whatever reason, the Subsidiary Guarantors Security shall be jointly paid in the currency or currencies specified for payments on such Security as contemplated by Section 2.3 and severally obligated pursuant to pay this Indenture. Each and every default in the same immediatelypayment of the principal of and interest on any Security shall give rise to a separate cause of action hereunder, and separate suits may be brought hereunder as each cause of action arises. The Subsidiary Guarantors hereby agree that Guarantee hereunder constitutes a guarantee of payment and not of collection. The obligations of the Guarantor hereunder with respect to the fullest extent permitted by applicable law, their obligations hereunder a series of Securities shall be absolute and unconditional, irrespective of the validity, regularity or enforceability of the Notes Securities or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Securities with respect to any provisions of the Indenture and the Noteshereof or thereof, the recovery of any judgment against the IssuersIssuer, any action to enforce the same same, whether or not a Guarantee is affixed to any particular Security, or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligenceand, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right subject to require a proceeding first against the Issuers, protest, notice Section 9.3 and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore dischargedArticle X, shall be reinstated remain in full force and effect. Each Subsidiary Guarantor agrees that it effect until the entire principal of and interest on the Securities of such series shall have been paid or provided for in accordance with the provisions of such series and of this Indenture, and such payment shall not be entitled affected, modified or impaired upon the happening from time to any right of subrogation in relation to the Holders in respect time of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees thatevent, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity including without limitation any of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for the purposes of these Guaranteesfollowing, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payablewith notice to, or the consent of, the Guarantor:
(a) shall forthwith become due and payable the waiver, surrender, compromise, settlement, release or termination of any or all of the obligations, covenants or agreements of the Issuer under this Indenture or the Securities of such series;
(b) the failure to give notice to the Guarantor of the occurrence of a default or an Event of Default hereunder;
(c) the waiver, compromise or release of the payment, performance or observance by the Subsidiary Guarantors Issuer or the Guarantor of any or all of the obligations, covenants or agreements of either of them contained in this Indenture;
(d) the extension of the time for the purpose payment of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from principal of and interest on any non-paying Subsidiary Guarantor so long as the exercise Security of such right does not impair series or for any other payment under this Indenture or of the rights time for performance of any other obligations, covenants or agreements under or arising out of this Indenture;
(e) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in this Indenture or the Securities of such series;
(f) the taking or the omission of any of the actions referred to in this Indenture and any of the actions under the Securities of such series;
(g) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in this Indenture, or any other act or acts on the part of the Trustee or any of the Holders under these Guarantees.from time to time of the Securities of such series;
(h) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshalling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantor or the Issuer, or any of the assets of any of them, or any allegation or contest respecting the validity of the Guarantee in any such proceeding;
(i) to the extent permitted by law, the release or discharge by operation of law of the Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Indenture;
Appears in 1 contract
Sources: Indenture (Sysco Corp)
Guarantees. (a) Subject to the provisions of this Article XI13, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the this Indenture, the Notes or held thereby and the other Obligations obligations of the Issuers Company hereunder or and thereunder, that: (a) the principal of, premium Reduced Principal Amount of and interest on the Notes shall will be promptly paid in full when due, subject to any applicable grace period, whether at the maturity or interest payment or mandatory redemption dateMaturity Date, by acceleration, redemption upon repurchase or otherwise, and interest on the overdue principal of, premium Reduced Principal Amount of and (to the extent permitted by law) interest on the Notes, if any, to the extent lawful, and all other Obligations payment obligations of the Issuers Company to the Holders or the Trustee under the Indenture and the Notes shall hereunder or thereunder will be promptly paid in full or and performed, all in accordance with the terms of the Indenture hereof and the Notesthereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligationsobligations, that the same shall will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturitythe Maturity Date, by acceleration acceleration, upon repurchase or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall will be jointly and severally obligated to pay the same immediately. An Event of Default with respect to the Notes under this Indenture shall constitute an event of default under the Guarantees, and shall entitle the Holders to accelerate the obligations of the Guarantors hereunder in the same manner and to the same extent as the obligations of the Company.
(b) The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Noteshereof or thereof, the recovery of any judgment against the IssuersCompany, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To Each Guarantor further, to the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the IssuersCompany, any right to require a proceeding first against the IssuersCompany, protest, notice and all demands whatsoever and covenants that its Guarantee shall will not be discharged except by complete performance of the obligations contained in the Notes and this Indenture, or pursuant to Section 13.03.
(c) Each of the Indenture. Guarantors also agrees, jointly and severally, to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 13.01.
(d) If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Company, the Guarantors, or any custodianCustodian, trustee, liquidator Trustee or other similar official acting in relation to either the Issuers Company or Subsidiary the Guarantors, any amount paid by the Company or any of them Guarantor to the Trustee or such Holder, these the Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to to, and hereby waives, any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations obligations guaranteed hereby. .
(e) Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the Obligations obligations guaranteed hereby may be accelerated as provided in Article VII hereof 6 of this Indenture for the purposes of these Guaranteesits Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations obligations guaranteed herebythereby, and (yii) in the event of any declaration of acceleration of such Obligations obligations as provided in Article VII hereof6 of this Indenture, such Obligations obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guaranteesits Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these the Guarantees.
(f) Each Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or the Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
(g) In case any provision of any Guarantee shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
(h) Each payment to be made by a Guarantor in respect of its Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.
(i) For the avoidance of doubt, the Guarantees with respect to a Note are not convertible and shall automatically terminate when such Note is converted in accordance with this Indenture.
Appears in 1 contract
Sources: Indenture (Whiting Petroleum Corp)
Guarantees. Subject to the provisions of this Article XI, each of the Subsidiary Guarantors hereby, (a) Each Guarantor hereby jointly and severally, fully, absolutely, unconditionally and irrevocably guarantees to each Holder of a Note Security authenticated and delivered by the Trustee Trustee, and to the Trustee in its individual capacity and on behalf of each Holder, the punctual payment and performance when due of all Indenture Obligations which, for purposes of its successors Guarantee, shall also be deemed to include all commissions, fees, charges, costs and assignsother expenses (including reasonable legal fees and disbursements of counsel) arising out of or incurred by the Trustee or the Holders in connection with the enforcement of any Guarantee and agrees to indemnify and hold harmless each Holder and the Trustee from all losses, irrespective damages, costs, expenses and liabilities suffered or incurred by the Holders and the Trustee resulting or arising from or relating to any failure by Company to unconditionally and irrevocably pay in full or fully perform the Indenture Obligations as and when due provided that the amount of such indemnification shall not exceed the amount of such Indenture Obligations as described in the preceding sentence. Without limiting the generality of the validity and enforceability foregoing, each Guarantor's liability shall extend to all amounts that constitute part of the Indenture, Indenture Obligations and would be owed by the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) the principal of, premium and interest on the Notes shall be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if any, Company to the extent lawful, and all other Obligations of the Issuers to the Holders such Holder or the Trustee under the Securities or this Indenture and but for the Notes shall be promptly paid in full fact that they are unenforceable, reduced, limited, suspended or performednot allowable due to the existence of a bankruptcy, all in accordance with reorganization or similar proceeding involving the terms of the Indenture and the Notes; and Company.
(b) in case Each Guarantor and by its acceptance hereof each Holder hereby confirms that it is the intention of all such parties that the guarantee by such Guarantor pursuant to its Guarantee not constitute a fraudulent transfer or conveyance for purposes of any extension of time of payment or renewal Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act of any Notes similar United States or Canadian federal, provincial or state law or the provisions of its local law relating to fraudulent transfer or conveyance. To effectuate the foregoing intention, the Holders and each Guarantor hereby irrevocably agree that the obligations of such Guarantor under its Guarantee shall be limited to the maximum amount as shall, after giving effect to all other contingent and fixed liabilities of such Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other ObligationsGuarantor under its Guarantee or pursuant to paragraph (c) of this Section 13.01, result in the obligations of such Guarantor under its Guarantee not constituting a fraudulent conveyance or fraudulent transfer under federal or state law.
(c) In order to provide for just and equitable contribution among the Guarantors, the Guarantors agree, INTER SE, that same in the event any payment or distribution is made by any Guarantor (a "Funding Guarantor") under its Guarantee, such Funding Guarantor shall be promptly paid entitled to a contribution from each other Guarantor (if any) in full when due or performed a pro rata amount based on the Adjusted Net Assets of each Guarantor (including the Funding Guarantor) for all payments, damages and expenses incurred by the Funding Guarantor in accordance with discharging the terms Indenture Obligations of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed Company or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their other Guarantor's obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to its Guarantee. "Adjusted Net Assets" of such Guarantor at any provisions date shall mean the lesser of the Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity amount by which the fair value of the Obligations guaranteed hereby may property of such Guarantor exceeds the total amount of liabilities, including, without limitation, contingent liabilities (after giving effect to all other fixed and contingent liabilities incurred or assumed on such date), but excluding liabilities under the Guarantee of such Guarantor at such date and (y) the amount by which the present fair salable value of the assets of such Guarantor at such date exceeds the amount that shall be accelerated as provided in Article VII hereof for required to pay the purposes probable liability of these Guaranteessuch Guarantor on its debts (after giving effect to all other fixed and contingent liabilities incurred or assumed on such date), notwithstanding any stay, injunction or other prohibition preventing such acceleration excluding debt in respect of the Obligations guaranteed herebyGuarantee, as they become absolute and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guaranteesmatured.
Appears in 1 contract
Sources: Indenture (Baytex Energy LTD)
Guarantees. Subject (a) Each of the New Subsidiary Guarantors agrees that it hereby shall become a “Subsidiary Guarantor” under and for all purposes of the Indenture with all the rights and obligations of a Subsidiary Guarantor thereunder, and for that purpose and subject to the provisions Section 3.1(b) of this Article XI, each of the Subsidiary Guarantors First Supplemental Indenture hereby, jointly and severally, unconditionally guarantees and irrevocably guarantees, on an unsecured senior basis (such guarantee is referred to herein as a “Guarantee”) to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) the principal of, premium premium, if any, and interest on the Notes (and any Additional Interest payable thereon) shall be promptly duly and punctually paid in full when due, whether at maturity, upon redemption at the maturity or interest payment or mandatory redemption dateoption of Holders pursuant to the provisions of the Notes relating thereto, by acceleration, redemption acceleration or otherwise, and interest on the overdue principal of, premium and interest on (to the Notesextent permitted by law) interest, if any, to on the extent lawful, Notes and all other Obligations obligations of the Issuers Successor Company or the Subsidiary Guarantors to the Holders or the Trustee under the Indenture and or the Notes (including amounts due the Trustee under Section 7.07 of the Indenture) and all other obligations shall be promptly paid in full or performed, all in accordance with the terms of the Indenture and the Notes; Notes and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligationsobligations, that the same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturitymaturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly all in accordance with and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that subject to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability terms and conditions of the Notes or and Article Twelve of the Indenture, .
(b) The obligations of each New Subsidiary Guarantor to the absence Holders of any action Notes and to enforce the same, any waiver or consent by any Holder Trustee pursuant to its Guarantee and the Indenture are expressly set forth in Article Twelve of the Notes with respect Indenture and reference is hereby made to any the Indenture for the precise terms of the Guarantee of each New Subsidiary Guarantor and all of the other provisions of the Indenture and pursuant to which such Guarantees relate.
(c) The Guarantees are subject to release upon the Notesterms set forth in the Indenture.
(d) As used in this Section 3.1, (i) the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a term “Subsidiary Guarantor. To ” has the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court meaning assigned to it in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (yii) in the terms “Indenture,” “Note,” and “Notes” mean the Indenture, Note and Notes as they may be amended or supplemented from time to time, including without limitation pursuant to this First Supplemental Indenture.
(e) In the event of any declaration conflict or inconsistency between the terms of acceleration of such Obligations as provided any Guarantee set forth in Article VII hereof, such Obligations (whether or not due this First Supplemental Indenture and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights provisions of the Holders under these GuaranteesIndenture relating to the guarantees of Subsidiary Guarantors, the provisions of the Indenture shall control.
Appears in 1 contract
Guarantees. Subject Each Guarantor shall, on the date it executes and delivers a Guarantee hereunder, have the full corporate power, authority and capacity to execute and deliver such Guarantee and to perform all of its obligations to be performed thereunder; all corporate and other acts, conditions and things required to be done and performed or to have occurred prior to such execution and delivery to constitute such Guarantee as a valid and legally binding obligation of such Guarantor enforceable in accordance with its terms shall have been done and performed and shall have occurred in due compliance with all applicable Laws; on the provisions date of this Article XIsuch execution and delivery, the execution, delivery and performance of such Guarantee by such Guarantor will not (i) violate any provision of Law or any provision of the charter or bylaws of such Guarantor, or (ii) result in a breach of, a default under (including, without limitation, any event which with notice or lapse of time, or both, would constitute a breach of or a default under), or the creation of any Lien on the properties or assets of such Guarantor, the Company or any other Subsidiary of the Company under any Contract to which such Guarantor or the Company or any other Subsidiary of the Company is a party or by which the properties or assets of such Guarantor, the Company or any other Subsidiary of the Company may be bound or affected; on the date of such execution and delivery, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated Guarantee executed and delivered by a Guarantor shall constitute legal, valid, binding and unconditional obligations of the Trustee Guarantor executing and delivering it to the Trustee and Lenders hereunder, enforceable in accordance with its successors and assignsterms, irrespective of the validity and enforceability of the Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) the principal of, premium and interest on the Notes shall be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if any, except to the extent lawfulthat the enforceability thereof may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization or similar laws affecting the enforcement of creditors' rights generally or by general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law); and all other Obligations the foregoing representations and warranties of the Issuers Company shall be deemed for all purposes to the Holders or the Trustee under the Indenture have been made on each date when a Guarantee is delivered hereunder with respect solely to that Guarantee and the Notes shall be promptly paid in full or performed, all in accordance with the terms of the Indenture and the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of issuing such right does not impair the rights of the Holders under these GuaranteesGuarantee.
Appears in 1 contract
Sources: Senior Subordinated Credit Agreement (T Sf Communications Corp)
Guarantees. Subject Each Guarantor shall, on the date it executes and ---------- delivers a Guarantee hereunder, have the full corporate power, authority and capacity to execute and deliver such Guarantee and to perform all of its obligations to be performed thereunder; all corporate and other acts, conditions and things required to be done and performed or to have occurred prior to such execution and delivery to constitute such Guarantee as a valid and legally binding obligation of such Guarantor enforceable in accordance with its terms shall have been done and performed and shall have occurred in due compliance with all applicable Laws; on the provisions date of this Article XIsuch execution and delivery, the execution, delivery and performance of such Guarantee by such Guarantor will not (i) violate any provision of Law or any provision of the charter or bylaws of such Guarantor, or (ii) result in a breach of, a default under (including, without limitation, any event which with notice or lapse of time, or both, would constitute a breach of or a default under), or the creation of any Lien on the properties or assets of such Guarantor, the Borrower or any Subsidiary of the Borrower under any Contract to which such Guarantor or the Borrower or the Borrower is a party or by which the properties or assets of such Guarantor or the Borrower may be bound or affected; on the date of such execution and delivery, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated Guarantee executed and delivered by a Guarantor shall constitute legal, valid, binding and unconditional obligations of the Trustee Guarantor executing and delivering it to the Trustee and Lenders hereunder, enforceable in accordance with its successors and assignsterms, irrespective of the validity and enforceability of the Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) the principal of, premium and interest on the Notes shall be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if any, except to the extent lawfulthat the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors' rights generally or by general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law); and all other Obligations the foregoing representations and warranties of the Issuers Borrower shall be deemed for all purposes to the Holders or the Trustee under the Indenture have been made on each date when a Guarantee is delivered hereunder with respect solely to that Guarantee and the Notes shall be promptly paid in full or performed, all in accordance with the terms of the Indenture and the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of issuing such right does not impair the rights of the Holders under these GuaranteesGuarantee.
Appears in 1 contract
Sources: Senior Subordinated Credit Agreement (Petersen Holdings LLC)
Guarantees. Subject to the provisions of this Article XIEach Guarantor hereby fully, each of the Subsidiary Guarantors herebyirrevocably and unconditionally, jointly and severally, unconditionally guarantees (such guarantee to each Holder of a Note authenticated and delivered by be referred to herein as the Trustee and “Guarantee”), to the Trustee Holders and its their respective successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: assigns that (ai) the principal of, premium of and interest (including PIK Interest and Additional PIK Interest, if any), on the Notes shall be promptly paid in full when due, subject to any applicable grace period, whether at upon redemption pursuant to the maturity or interest payment or mandatory redemption dateterms of the Notes, by acceleration, redemption acceleration or otherwise, and interest on the overdue principal ofprincipal, premium if any, and interest on the Notesany interest, if any, to the extent lawful, of the Notes and all other Obligations obligations of the Issuers Company to the Holders hereunder, thereunder or under any Security Document or the Trustee under the Indenture and the Notes Intercreditor Agreement shall be promptly paid in full or performed, all in accordance with the terms hereof, thereof and of the Indenture Security Documents and the NotesIntercreditor Agreement; and (bii) in case of any extension of time of payment or renewal of any of the Notes or of any of such other Obligationsobligations, that the same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturitystated maturity, by acceleration or otherwise. Failing payment when so due , subject, however, in the case of any amount so guaranteed or any performance so guaranteed for whatever reasonclauses (i) and (ii) above, to the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediatelylimitations set forth in Section 8.3. The Subsidiary Guarantors Guarantee of each Guarantor shall rank senior in right of payment to all subordinated Indebtedness of such Guarantor and equal in right of payment with all other senior obligations of such Guarantor, including borrowings or guarantees of borrowings under the Credit Agreement and Indebtedness under the Indenture and the Existing Notes. Each Guarantor hereby agree agrees that to the fullest extent permitted by applicable law, their its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes Notes, this Agreement, any Security Document or the IndentureIntercreditor Agreement, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Holders with respect to any provisions hereof or thereof, any release of the Indenture and the Notesany other Guarantor, the recovery of any judgment against the IssuersCompany, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the IssuersCompany, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guarantees.a
Appears in 1 contract
Sources: Note and Warrant Purchase Agreement (Atlantic Express Transportation Corp)
Guarantees. Subject to the provisions of this Article XI10, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the this Indenture, the Notes or the other Obligations obligations of the Issuers Company hereunder or thereunder, that: (a) the principal of, premium premium, if any, and interest on the Notes shall will be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption datematurity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium premium, if any, and interest on the Notes, if any, to the extent if lawful, and all other Obligations obligations of the Issuers Company to the Holders or the Trustee under the Indenture and the Notes shall hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms of the Indenture hereof and the Notesthereof; and (b) in the case of any extension of time of payment or renewal of any Notes or any of such other Obligationsobligations, that the same shall will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturitystated maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Noteshereof or thereof, the recovery of any judgment against the IssuersCompany, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantorguarantor. To the fullest extent permitted by applicable law, each Each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the IssuersCompany, any right to require a proceeding first against the IssuersCompany, protest, notice and all demands whatsoever and covenants covenant that its this Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenturethis Indenture or pursuant to Section 10.04. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary GuarantorsCompany, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers Company or Subsidiary the Guarantors, any amount paid by any of them either to the Trustee or such Holder, these Guaranteesthis Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations obligations guaranteed hereby until payment in full of all Obligations obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations obligations guaranteed hereby may be accelerated as provided in Article VII hereof 6 for the purposes of these Guaranteesthis Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations obligations as provided in Article VII hereof6, such Obligations obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guaranteesthis Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guaranteesthe Guarantee.
Appears in 1 contract
Sources: Indenture (E Trade Financial Corp)
Guarantees. (a) Subject to the provisions of this Article XI11, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally and fully and unconditionally, guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the of, this Indenture, the Notes or the other Obligations obligations of the Issuers Company hereunder or thereunder, that: (a1) the principal of, premium premium, if any, and interest and Additional Interest, if any, on the Notes shall be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption datematurity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium premium, if any, and interest and Additional Interest, if any, on the Notes, if any, lawful (subject in all cases to the extent lawfulany applicable grace period provided herein), and all other Obligations obligations of the Issuers Company to the Holders or the Trustee under the Indenture and the Notes hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms of the Indenture hereof and the Notesthereof; and (b2) in case of any extension of time of payment or renewal of any Notes or any of such other Obligationsobligations, that the same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturitystated maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the Subsidiary Guarantors.
(b) The Subsidiary Guarantors hereby agree that that, to the fullest maximum extent permitted by under applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Noteshereof or thereof, the recovery of any judgment against the IssuersCompany, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the IssuersCompany, any right to require a proceeding first against the IssuersCompany, protest, notice and all demands whatsoever and covenants that its this Note Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the this Indenture. .
(c) If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Company, the Subsidiary Guarantors, Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either any of the Issuers Company or the Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guaranteesthis Note Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. .
(d) Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations obligations guaranteed hereby until payment in full of all Obligations obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations obligations guaranteed hereby may be accelerated as provided in Article VII hereof this Indenture for the purposes of these Guaranteesthis Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations obligations as provided in Article VII hereofthis Indenture, such Obligations obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guaranteesthis Note Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guaranteesthe Note Guarantee.
(e) The Company shall not permit any of its Subsidiaries, directly or indirectly, to guarantee or pledge any assets to secure the payment of any other indebtedness of the Company or any Subsidiary Guarantor unless such Subsidiary is a Subsidiary Guarantor or simultaneously executes and delivers a supplemental indenture providing for the guarantee of the payment of the Notes by such Subsidiary, which guarantee shall be senior to or equal in right with such Subsidiary’s guarantee of such other indebtedness. Notwithstanding this Section 11.01(e), any Note Guarantee shall be automatically and unconditionally released and discharged under the circumstances described under Section 11.03 hereof.
Appears in 1 contract
Guarantees. (a) Subject to the provisions of this Article XIX, each of the Subsidiary Guarantors herebyGuarantor, jointly and severally, hereby irrevocably and unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee Securities and to the Trustee and its successors and assigns, irrespective on behalf of the validity and enforceability of the Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: Holders (ai) the due and punctual payment of principal of, premium premium, if any, and interest on the Notes shall be promptly paid in full on each Security when due, and as the same shall become due and payable whether at the maturity or interest payment or mandatory redemption dateStated Maturity, by acceleration, redemption declaration of acceleration or otherwise, (ii) the due and punctual payment of interest on the overdue principal of, premium and interest on the Notespremium, if any, and interest in full on the Securities, to the extent lawfulpermitted by law, and (iii) the due and punctual performance of all other Obligations of the Issuers Company and the other Guarantors to the Holders or the Trustee under Trustee, including without limitation the Indenture and the Notes shall be promptly paid in full payment of fees, expenses, indemnification or performedother amounts, all in accordance with the terms of the Indenture Securities and the Notes; and (b) in this Indenture. In case of the failure of the Company punctually to make any extension of time of such principal or interest payment or renewal the failure of any Notes the Company or any of other Guarantor to perform any such other ObligationsObligation, that each Guarantor hereby agrees to cause any such payment to be made punctually when and as the same shall be promptly paid in full when become due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace periodand payable, whether at Stated Maturity, by declaration of acceleration or otherwise, and as if such payment were made by the Company and to perform any such other Obligation of the Company immediately. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated Each Guarantor hereby further agrees to pay any and all expenses (including reasonable counsel fees and expenses) incurred by the same immediatelyTrustee or the Holders in enforcing any rights under these Guarantees. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective Guarantees under this Article X are guarantees of payment and not of collection.
(b) Each of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture Company and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor Guarantors hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, insolvency or bankruptcy of the IssuersCompany or any other Guarantor, any right to require a proceeding first against the IssuersCompany or any other Guarantor, protest, protest or notice with respect to the Securities or the indebtedness evidenced thereby and all demands whatsoever whatsoever, and covenants that its Guarantee shall these Guarantees will not be discharged except by complete performance of the obligations Obligations contained in the Notes Securities and in this Indenture, or as otherwise specifically provided therein and herein.
(c) Each Guarantor hereby waives and relinquishes:
(i) any right to require the Indenture. If any Holder Trustee, the Holders or the Trustee is Company (each, a "Benefitted Party") to proceed against the Company, the Subsidiaries of the Company or any other Person or to proceed against or exhaust any security held by a Benefitted Party at any time or to pursue any other remedy in any secured party's power before proceeding against the Guarantors;
(ii) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Benefitted Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons;
(iii) demand, protest and notice of any kind (except as expressly required by this Indenture), including but not limited to notice of the existence, creation or incurring of any court new or otherwise to return to additional indebtedness or obligation or of any action or non-action on the Issuers or Subsidiary part of the Guarantors, or the Company, the Subsidiaries of the Company, any custodianBenefitted Party, trustee, liquidator or other similar official acting in relation to either any creditor of the Issuers or Subsidiary Guarantors, any amount paid by any the Company or the Subsidiaries of them to the Trustee Company or such Holder, these Guarantees, to on the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect part of any Obligations guaranteed other Person whomsoever in connection with any obligations the performance of which are hereby until payment guaranteed;
(iv) any defense based upon an election of remedies by a Benefitted Party, including but not limited to an election to proceed against the Guarantors for reimbursement;
(v) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in full amount nor in other respects more burdensome than that of all Obligations guaranteed hereby. the principal;
(vi) any defense arising because of a Benefitted Party's election, in any proceeding instituted under the Bankruptcy Law, of the application of Section 1111(b)(2) of the Bankruptcy Law; and
(vii) any defense based on any borrowing or grant of a security interest under Section 364 of the Bankruptcy Law.
(d) Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantorssuch Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (xi) for purposes of the relevant Guarantee, the maturity of the Obligations guaranteed hereby Guaranteed by such Guarantee may be accelerated as provided in Article VII hereof for the purposes of these GuaranteesVI, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed herebythereby, and (yii) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) such Obligations shall forthwith become due and payable by the Subsidiary Guarantors such Guarantor for the purpose purposes of these Guarantees. such Guarantee.
(e) The Subsidiary Guarantors Guarantees shall have the right continue to seek contribution from any non-paying Subsidiary Guarantor so long be effective or shall be reinstated, as the exercise case may be, if at any time any payment, or any part thereof, of principal of, premium, if any, or interest on any of the Securities is rescinded or must otherwise be returned by the Holders or the Trustee upon the insolvency, bankruptcy or reorganization of the Company or any of the Guarantors, all as though such right does payment had not impair the been made.
(f) Each Guarantor shall be subrogated to all rights of the Holders under these Guaranteesagainst the Company in respect of any amounts paid by such Guarantor pursuant to the provisions of the Guarantees or this Indenture; provided, however, that a Guarantor shall not be entitled to enforce or to receive any payments until the principal of, premium, if any, and interest on all Securities issued hereunder shall have been paid in full.
Appears in 1 contract
Sources: Euro Indenture (Trylon Corp/Mi/)
Guarantees. Subject to the provisions of this Article XIXV, each of the Parent Guarantor, GP Guarantor and Subsidiary Guarantors hereby, Guarantor hereby jointly and severally, fully and unconditionally guarantees guarantee, on a senior unsecured basis, to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the this Indenture, the Notes or held thereby and the other Obligations of the Issuers Issuer hereunder or and thereunder, that: (a) the principal ofof and premium, premium if any, and interest interest, if any, on the Notes shall will be promptly paid in full when due, subject to any applicable grace period, whether at the maturity or interest payment or mandatory redemption dateStated Maturity, by acceleration, upon repurchase or redemption or otherwise, and interest on the overdue principal ofof and premium (to the extent permitted by law), premium and interest on the Notes, if any, to the extent lawful, and all other payment Obligations of the Issuers Issuer to the Holders or the Trustee under the Indenture and the Notes shall hereunder or thereunder will be promptly paid in full or and performed, all in accordance with the terms of the Indenture hereof and the Notesthereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that the same shall will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration acceleration, upon repurchase or redemption or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall will be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that An Event of Default under this Indenture or the Notes shall constitute an event of default under the Guarantee of each Guarantor, and shall entitle the Holders to accelerate the obligations of the each Guarantor hereunder in the same manner and to the fullest same extent permitted by applicable law, their as the Obligations of the Issuer. Each Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Noteshereof or thereof, the recovery of any judgment against the IssuersIssuer, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary such Guarantor. To Each Guarantor further, to the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the IssuersIssuer, any right to require a proceeding first against the IssuersIssuer, protest, notice and all demands whatsoever and covenants that its Guarantee shall will not be discharged except by complete performance of the obligations Obligations contained in the Notes and the this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary GuarantorsIssuer, any Guarantor, or any custodianCustodian, trustee, liquidator Trustee or other similar official acting in relation to either the Issuers Issuer or Subsidiary Guarantorsany Guarantor, any amount paid by any of them to the Trustee or such Holder, these Guaranteesthe Guarantee of each Guarantor, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to to, and hereby waives, any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantorseach Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (xa) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII V hereof for the purposes of these Guaranteesthe Guarantee of such Guarantor, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed herebythereby, and (yb) in the event of any declaration of acceleration of such Obligations as provided in Article VII V hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors each Guarantor for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise Guarantee of such right does not impair the rights of the Holders under these GuaranteesGuarantor.
Appears in 1 contract
Sources: Indenture (Great Ajax Corp.)
Guarantees. Subject to the provisions of this Article XI11, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the this Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) the principal of, premium premium, interest and interest Liquidated Damages, if any, on the Notes shall be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium premium, interest and interest Liquidated Damages, if any, on the Notes, if any, to the extent if lawful, and all other Obligations of the Issuers to the Holders or the Trustee under the this Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of the this Indenture and the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligationsobligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the this Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants covenant that its Guarantee the Guarantees shall not be discharged except by complete performance of the obligations contained in the Notes and the this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them either to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right 101 of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII 6 hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII 6 hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guarantees.
Appears in 1 contract
Guarantees. Subject to the provisions of this Article XI, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) In the principal ofevent that, premium after the Closing Date, ▇▇▇▇▇▇▇▇ or any Affiliate of ▇▇▇▇▇▇▇▇ (other than the Company and interest on the Notes shall be promptly paid in full when due, its Subsidiaries) remains liable for any guarantees (whether at the maturity or interest of payment or mandatory redemption dateperformance), by acceleration, redemption letters of credit or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if any, other undertakings it has delivered prior to the extent lawfulClosing Date to others for the benefit of P Chem, the Company agrees to indemnify and all hold harmless ▇▇▇▇▇▇▇▇ or such Affiliate of ▇▇▇▇▇▇▇▇ from any cost, expense or loss (including reasonable attorneys' fees) incurred by ▇▇▇▇▇▇▇▇ or such Affiliate of ▇▇▇▇▇▇▇▇ arising, directly or indirectly, therefrom, except insofar as such cost, expense or loss constitutes or arises from a matter with respect to which the Company or any of its Affiliates (excluding ▇▇▇▇▇▇▇▇) is entitled to indemnification hereunder. Any such guarantees, letters of credit or other Obligations undertakings (including performance guarantees) are set forth on Schedule 6.14(a) of the Issuers ▇▇▇▇▇▇▇▇ Disclosure Schedule. The Company shall use its commercially reasonable best efforts (including an offer of a substitute guarantee, letter of credit or undertaking) to cause or procure the Holders release, as soon as practicable following the Closing Date, of all Liabilities of ▇▇▇▇▇▇▇▇ or any Affiliate of ▇▇▇▇▇▇▇▇ (other than the Trustee under the Indenture Company and the Notes shall be promptly paid in full its Subsidiaries) with respect to such guaranties, letters of credit or performed, all in accordance with the terms other undertakings from any of the Indenture and P Chem Liabilities; PROVIDED HOWEVER, that neither the Notes; and Company nor its Subsidiaries shall incur any cost or expense in causing or procuring such release.
(b) in case In the event that, after the Closing Date, Chevron or any Affiliate of Chevron (other than the Company and its Subsidiaries) remains liable for any extension of time guarantees (whether of payment or renewal performance), letters of credit or other undertakings it has delivered prior to the Closing Date to others for the benefit of C Chem, the Company agrees to indemnify and hold harmless Chevron or such Affiliate of Chevron from any Notes cost, expense or loss (including reasonable attorneys' fees) incurred by Chevron or such Affiliate of Chevron arising, directly or indirectly, therefrom, except insofar as such cost, expense or loss constitutes or arises from a matter with respect to which the Company or any of its Affiliates (excluding Chevron) is entitled to indemnification hereunder. Any such guarantees, letters of credit or other Obligations, that same shall be promptly paid in full when due or performed in accordance with the terms undertakings (including performance guarantees) are set forth on Schedule 6.14(b) of the extension Chevron Disclosure Schedule. The Company shall use its commercially reasonable best efforts (including an offer of a substitute guarantee, letter of credit or renewalundertaking) to cause or procure the release, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwiseas soon as practicable following the Closing Date. Failing payment when so due of any amount so guaranteed all Liabilities of Chevron or any performance so guaranteed for whatever reason, Affiliate of Chevron (other than the Subsidiary Guarantors shall be jointly Company and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes its Subsidiaries) with respect to such guaranties, letters of credit or other undertakings from any provisions of the Indenture and C Chem Liabilities; PROVIDED HOWEVER, that neither the Notes, the recovery of Company nor its Subsidiaries shall incur any judgment against the Issuers, any action to enforce the same cost or any other circumstance (other than complete performance) which might otherwise constitute a legal expense in causing or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or procuring such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guaranteesrelease.
Appears in 1 contract
Guarantees. Subject to (a) In consideration of good and valuable consideration, the provisions receipt and sufficiency of this Article XIwhich is hereby acknowledged, each of the Subsidiary Guarantors herebyhereby irrevocably and unconditionally guarantees, jointly and severally, unconditionally guarantees on a senior subordinated basis (the "Guarantee") to each Holder of a Note Security authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the this Indenture, the Notes Securities or the other Obligations obligations of the Issuers hereunder under this Indenture or thereunderthe Securities, that: (aw) the principal of, and premium (if any) of and interest on the Notes shall Securities will be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption date, by acceleration, redemption call for redemption, upon an Change of Control Offer, an Asset Sale Offer or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if any, to the extent lawful, and ; (x) all other Obligations obligations of the Issuers to the Holders or the Trustee under this Indenture or the Indenture and the Notes shall Securities will be promptly paid in full or performed, all in accordance with the terms of the this Indenture and the NotesSecurities; and (by) in case of any extension of time of payment or renewal of any Notes Securities or any of such other Obligationsobligations, that same shall they will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturitymaturity, by acceleration acceleration, call for redemption, upon an Offer to Purchase or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors each Guarantor shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors before failure so to pay becomes an Event of Default.
(b) Each Guarantor hereby agree agrees that its obligations with regard to the fullest extent permitted by applicable law, their obligations hereunder this Guarantee shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes Securities or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which circumstances that might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantorguarantor. To the fullest extent permitted by applicable law, each Subsidiary Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the IssuersIssuers or right to require the prior disposition of the assets of the Issuers to meet its obligations, protest, notice and all demands whatsoever and covenants that its this Guarantee shall will not be discharged except by complete performance of the obligations contained in the Notes Securities and the this Indenture. .
(c) If any Holder or the Trustee is required by any court or otherwise to return to either the Issuers or Subsidiary Guarantorsany Guarantor, or any custodianCustodian, trusteeTrustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantorssuch Guarantor, any amount paid by any of them either the Issuers or such Guarantor to the Trustee or such Holder, these Guaranteesthis Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall will not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations obligations guaranteed hereby until payment in full of all Obligations obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantorssuch Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the Obligations obligations guaranteed hereby may be accelerated as provided in Article VII hereof Section 6.2 for the purposes of these Guaranteesthis Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect as to the Issuers of the Obligations obligations guaranteed hereby, and (yii) in the event of any declaration of acceleration of such Obligations those obligations as provided in Article VII hereofSection 6.2, such Obligations those obligations (whether or not due and payable) shall will forthwith become due and payable by each of the Subsidiary Guarantors for the purpose of these Guaranteesthis Guarantee.
(d) Each Guarantor and by its acceptance of a Security issued hereunder each Holder hereby confirms that it is the intention of all such parties that the guarantee by such Guarantor set forth in Section 11.1(a) not constitute a fraudulent transfer or conveyance for purpose of any Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar United States Federal or state law. The Subsidiary Guarantors To effectuate the foregoing intention, the Holders and such Guarantor hereby irrevocably agree that the obligations of such Guarantor under its guarantee set forth in Section 11.1(a) shall have be limited to the right maximum amount as will, after giving effect to seek all other contingent and fixed liabilities of such Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under its Guarantee or pursuant to the following paragraph of this Section 11.1(d), result in the obligations of such Guarantor under such guarantee not constituting such a fraudulent transfer or conveyance. Each Guarantor that makes any payment or distribution under Section 11.1(a) shall be entitled to a contribution from any non-paying Subsidiary each other Guarantor equal to its Pro Rata amount of such payment or distribution so long as the exercise of such right does not impair the rights of the Holders under these the Guarantees. For purposes of the foregoing, the "Pro Rata amount" of any Guarantor means the percentage of the net assets of all Guarantors held by such Guarantor, determined in accordance with GAAP.
Appears in 1 contract
Guarantees. Subject to the provisions of this Article XIXII, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the this Indenture, the Notes or the other Obligations obligations of the Issuers Company hereunder or thereunder, that: (a) the principal of, premium premium, if any, and interest on the Notes shall be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption datematurity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium of and interest on the Notes, if any, to the extent if lawful, and all other Obligations obligations of the Issuers Company to the Holders or the Trustee under the Indenture and the Notes hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms of the Indenture hereof and the Notesthereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligationsobligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturitystated maturity, by acceleration pursuant to Section 4.02 hereof or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. Each Guarantor hereby agree agrees that its obligations with regard to the fullest extent permitted by applicable law, their obligations hereunder this Guarantee shall be joint and several and unconditional, irrespective of the validity, regularity validity or enforceability of the Notes or the obligations of the Company under this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Notes, the recovery of any judgment against the IssuersCompany or any other obligor with respect to this Indenture, the Notes or the Obligations of the Company under this Indenture or the Notes, any action to enforce the same or any other circumstance circumstances (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To Each Guarantor further, to the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligenceand relinquishes all claims, presentmentrights and remedies accorded by applicable law to guarantors and agrees not to assert or take advantage of any such claims, demand of paymentrights or remedies, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, including but not limited to: (a) any right to require any of the Trustee, the Holders or the Company (each a proceeding first against "BENEFITED PARTY"), as a condition
(i) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the Issuersterms of the Guarantees and any legal or equitable discharge of such Guarantor's obligations hereunder, (ii) the benefit of any statute of limitations affecting such Guarantor's liability hereunder or the enforcement hereof, (iii) any rights to set-offs, recoupments and counterclaims and (iv) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or Lien on any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notice notices of dishonor and all demands whatsoever notices of any action or inaction, including acceptance of the Guarantees, notices of default under the Notes or any agreement or instrument related thereto, notices of any renewal, extension or modification of the Obligations under the Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to the extent permitted under applicable law, the benefits of any "One Action" rule and (h) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms of the Guarantees. Each Guarantor hereby covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes its Guarantee and the this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary GuarantorsCompany, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers Company or Subsidiary the Guarantors, any amount paid by any of them either to the Trustee or such Holder, these Guaranteesthis Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations obligations guaranteed hereby until payment in full of all Obligations obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations obligations guaranteed hereby may be accelerated as provided in Article VII Section 4.02 hereof for the purposes of these Guaranteesthis Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations obligations guaranteed hereby, hereby and (y) in the event of any declaration of acceleration of such Obligations obligations as provided in Article VII Section 4.02 hereof, such Obligations obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guaranteesthis Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guaranteesthe Guarantee.
Appears in 1 contract
Guarantees. Subject to the provisions of this Article XI10, each of the Subsidiary Guarantors hereby, jointly and severally, fully and unconditionally guarantees guarantees, on a senior secured basis, to each Holder of a Note authenticated and delivered by the Trustee and to each of the Collateral Agent and the Trustee and its successors and assigns, irrespective of the validity and enforceability of the this Indenture, the Notes or held thereby and the other Obligations of the Issuers hereunder or and thereunder, that: (a) the principal of, premium premium, if any, and interest on the Notes shall will be promptly paid in full when due, subject to any applicable grace period, whether at the maturity or interest payment or mandatory redemption dateStated Maturity, by acceleration, upon repurchase or redemption or otherwise, and interest on the overdue principal of, premium premium, if any (to the extent permitted by law) and interest on the Notes, if any, to the extent lawful, and all other payment Obligations of the Issuers to the Holders Holders, the Collateral Agent or the Trustee under the Indenture and the Notes shall hereunder or thereunder will be promptly paid in full or and performed, all in accordance with the terms of the Indenture hereof and the Notesthereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that the same shall will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration acceleration, upon repurchase or redemption or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall will be jointly and severally obligated to pay the same immediately. An Event of Default under this Indenture or the Notes shall constitute an event of default under the Notes Guarantees, and shall entitle the Holders to accelerate the obligations of the Guarantors hereunder in the same manner and to the same extent as the Obligations of the Issuers. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Noteshereof or thereof, the recovery of any judgment against the Issuersan Issuer, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To Each Guarantor further, to the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuersan Issuer, any right to require a proceeding first against the Issuersan Issuer, protest, notice and all demands whatsoever and covenants that its Notes Guarantee shall will not be discharged except by complete performance of the obligations Obligations contained in the Notes and the this Indenture. If any Holder Holder, the Collateral Agent or the Trustee is required by any court or otherwise to return to an Issuer, the Issuers or Subsidiary Guarantors, or any custodianCustodian, trusteethe Collateral Agent, liquidator the Trustee or other similar official acting in relation to either any of the Issuers or Subsidiary the Guarantors, any amount paid by an Issuer or any of them Guarantor to the Collateral Agent, the Trustee or such Holder, these the Notes Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to to, and hereby waives, any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders the Collateral Agent and the Trustee, on the other hand, (xa) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII 6 hereof for the purposes of these Guaranteesits Notes Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed herebythereby, and (yb) in the event of any declaration of acceleration of such Obligations as provided in Article VII 6 hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors Guarantor for the purpose of these Guaranteesits Notes Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these the Notes Guarantees.
Appears in 1 contract
Guarantees. Subject to the provisions of this Article XIlimitations set forth in Section 11.04, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees Guarantee 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, irrespective of the validity and enforceability of the this Indenture, the Notes or the other Obligations obligations of the Issuers Issuer hereunder or thereunder, that: (a) the principal ofof and premium, premium if any, and interest interest, if any, on the Notes shall be promptly paid in full when due, subject to any applicable grace period, whether at the maturity or interest payment or mandatory redemption dateStated Maturity, by acceleration, redemption redemption, required purchase or repurchase or otherwise, and interest on the overdue principal of, premium of and interest on the Notespremium, if any, to the extent and interest, if any, if lawful, and all other Obligations obligations of the Issuers Issuer to the Holders Holders, the Trustee or the Trustee under the Indenture and the Notes Collateral Agent hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms of the Indenture hereof and the Notesthereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligationsobligations, that the same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration acceleration, redemption, required purchase or repurchase or otherwise. Failing In the event the Issuer fails to make payment when so due due, subject to any applicable grace period, of any amount so guaranteed Guaranteed or any performance so guaranteed Guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Noteshereof or thereof, the recovery of any judgment against the IssuersIssuer or any Guarantor, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantorguarantor (other than the payment in full of the amounts Guaranteed). To the fullest extent permitted by applicable law, each Subsidiary Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the IssuersIssuer, any right to require a proceeding first against the IssuersIssuer or another Guarantor, protest, notice and all demands whatsoever and covenants covenant that its Guarantee the Note Guarantees shall not be discharged except by complete performance of the obligations contained in the Notes and the IndentureIndenture Documents. If any Holder Holder, the Trustee or the Trustee Collateral Agent is required by any court or otherwise to return to the Issuers Issuer or Subsidiary any of the Guarantors, or any custodian, trustee, liquidator Custodian or other similar official acting in relation to either the Issuers Company or Subsidiary any of the Guarantors, any amount paid by any of them to the Trustee Trustee, the Collateral Agent or such Holder, these the Note Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed obligations Guaranteed hereby until payment in full of all Obligations guaranteed obligations Guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders Holders, the Trustee and the TrusteeCollateral Agent, on the other hand, (x) the maturity of the Obligations guaranteed obligations Guaranteed hereby may be accelerated as provided in Article VII hereof 7 for the purposes of these the Note Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, obligations Guaranteed hereby and (y) in the event of any declaration of acceleration of such Obligations obligations as provided in Article VII hereof7, such Obligations obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these the Note Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Trustee, the Collateral Agent or the Holders under these the Note Guarantees.
Appears in 1 contract
Sources: Indenture (Stonemor Inc.)
Guarantees. Subject (a) The payment by the Company of all amounts due with respect to the provisions Notes and the performance by the Company of its obligations under this Agreement will be absolutely and unconditionally guaranteed by the Reporting Entity and the Affiliates of the Reporting Entity (other than the Company) that (i) are obligors under thea Bank Credit Agreement or a Material Credit Facility or (ii) guarantee the obligations of the obligors under thea Bank Credit Agreement or such Material Credit Facility (together with any additional Affiliate who delivers a guaranty pursuant to Section 9.7, the “Guarantors”) pursuant to the guaranty agreement substantially in the form of Exhibit 2.2(a) attached hereto and made a part hereof (as the same may be amended, modified, extended or renewed, the “Affiliate Guaranty”).
(b) Any instruments, documents and agreements pursuant to which the Reporting Entity or any Subsidiary agrees to grant Liens in favor of a collateral agent (the “Collateral Agent”) for the benefit of the holders of Notes are hereinafter referred to as the “Collateral Documents.”The Collateral Documents and the Affiliate Guaranties are hereinafter collectively referred to as the “Security Documents.”
(c) [Reserved].
(d) If at any time the Reporting Entity or any Affiliate shall grant to any one or more of the Creditors security of any kind or provide any one or more of the Creditors with additional guaranties or other credit support of any kind pursuant to the requirements of a Material Credit Facility, then the Reporting Entity or such Affiliate shall grant to the holders of the Notes the same security or guaranty so that the holders of the Notes shall at all times be secured on an equal and pro rata basis with such Creditors. All such additional guaranties or security shall be given to the holders of the Notes pursuant to Section 9.7 or 9.8, as applicable, of this Article XI, each Agreement.
(e) The holders of the Subsidiary Guarantors herebyNotes agree that the obligations of any Affiliate (other than the Reporting Entity) under the Affiliate Guaranty and the Liens of the Collateral Documents in respect of all or any part of the collateral therein described shall be automatically released and discharged without the necessity of further action on the part of the holders of the Notes if, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee extent, (i) the corresponding guaranty or Lien given pursuant to the terms of any Material Credit Facility is released, (ii) such Affiliate is no longer, if applicable, a borrower or issuer under any Material Credit Facility and its successors (iii) no Default or Event of Default shall have occurred and assignsthen be continuing or result therefrom (or should any Default or Event of Default then exist or result, irrespective at such later time as any such Default or Event of Default shall cease to exist or result therefrom), provided that in the event the Reporting Entity or any Affiliate shall again become obligated under or with respect to the previously discharged Affiliate Guaranty or Material Credit Facility, or again grant the discharged Lien, as the case may be, pursuant to the terms and provisions of the validity relevant Material Credit Facility, then the Lien granted by the Reporting Entity or its Subsidiaries under a Collateral Document or the obligations of such Affiliate under the Affiliate Guaranty, as the case may be, shall be reinstated and enforceability any release thereof previously given shall be deemed null and void, and such Affiliate Guaranty shall again benefit the holders of the Indenture, Notes on an equal and pro rata basis. Any release by the holders of the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (aunder this Section 2.2(e) the principal of, premium and interest on the Notes shall be promptly paid in full when duedeemed to have occurred concurrently with the release and discharge under the Material Credit Facilities. Further, whether at the maturity any reinstatement of an Affiliate Guaranty or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if any, Lien pursuant to the extent lawful, and all other Obligations of the Issuers to the Holders or the Trustee under the Indenture and the Notes terms hereof shall be promptly paid in full or performed, all in accordance comply with the terms of the Indenture Sections 9.7 and the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately9.8 hereof. The Subsidiary Guarantors hereby agree that to Reporting Entity shall promptly notify the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability holders of the Notes or the Indenture, the absence of any action release of an Affiliate Guaranty pursuant to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture this Section 2.2(e) and the Notes, the recovery shall deliver evidence of any judgment against the Issuers, any action to enforce the same release or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantorguaranty or Lien in customary form. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guarantees.STERIS CORPORATION NOTE PURCHASE AGREEMENT
Appears in 1 contract
Sources: Note Purchase Agreement (STERIS PLC)
Guarantees. Subject to From and after the provisions of this Article XIAssumption Date, each of the undersigned (the "Subsidiary Guarantors hereby, Guarantors") hereby jointly and severallyseverally unconditionally guarantees, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the extent set forth in the Indenture dated as of July 9, 2002 by and among SOI Funding Corp., a Delaware corporation, as issuer (the "Company"), whose obligations thereunder have been assumed (or are being assumed) by Solutia Inc., a Delaware corporation, the Subsidiary Guarantors, as guarantors, and HSBC Bank USA, as Trustee (as amended, restated or supplemented from time to time, the "Indenture"), and its successors and assigns, irrespective of the validity and enforceability of subject to the Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) the due and punctual payment of the principal of, premium and interest on the Notes shall be promptly paid in full when duepremium, whether at the maturity or interest payment or mandatory redemption dateif any, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if anywhen and as the same shall become due and payable, whether at maturity, by acceleration or otherwise, the due and punctual payment of interest on overdue principal of, and premium and, to the extent lawfulpermitted by law, interest, and the due and punctual performance of all other Obligations obligations of the Issuers Company to the Holders Noteholders or the Trustee under the Indenture and the Notes shall be promptly paid in full or performedTrustee, all in accordance with the terms set forth in Article Ten of the Indenture and the Notes; Indenture, and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligationsobligations, that the same shall will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturitystated maturity, by acceleration or otherwise. Failing payment when so due The obligations of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective Noteholders and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Article Ten of the validity, regularity or enforceability of the Notes or the Indenture, and reference is hereby made to the absence Indenture for the precise terms and limitations of any action to enforce the same, any waiver or consent by any this Guarantee. Each Holder of the Notes with respect Note to any provisions of the Indenture which this Guarantee is endorsed, by accepting such Note, agrees to and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effectbound by such provisions. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, [Signatures on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guarantees.Following Pages]
Appears in 1 contract
Sources: Indenture (Solutia Inc)
Guarantees. Subject to the provisions of this Article XI11, each of the Subsidiary Guarantors hereby, jointly and severally, Guarantor hereby unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the this Indenture, the Notes or the other Obligations obligations of the Issuers Company hereunder or and thereunder, that: (a) the principal of, premium of and interest and Liquidated Damages, if any, on the Notes shall will be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption datematurity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium of and interest and Liquidated Damages, if any, on the Notes, if any, to the extent if lawful, and all other Obligations obligations of the Issuers Company to the Holders or and the Trustee under the Indenture and the Notes shall hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms of the Indenture hereof and the Notesthereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligationsobligations, that the same shall will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturitystated maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors each Guarantor shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. Each Guarantor hereby agree agrees that to the fullest extent permitted by applicable law, their its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Noteshereof or thereof, the recovery of any judgment against the IssuersCompany, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary such Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the IssuersCompany, any right to require a proceeding first against the IssuersCompany, protest, notice and all demands whatsoever and covenants covenant that its Guarantee the Note Guarantees shall not be discharged except by complete performance of the obligations contained in the Notes and the this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary GuarantorsCompany, any Guarantor or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers Company or Subsidiary Guarantorsany Guarantor, any amount paid by any of them either to the Trustee or such Holder, these the Note Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations obligations guaranteed hereby until payment in full of all Obligations obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantorssuch Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations obligations guaranteed hereby may be accelerated as provided in Article VII 6 hereof for the purposes of these the Note Guarantees, notwithstanding any stay, injunction or other prohibition preventing prevention such acceleration in respect of the Obligations obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations obligations as provided proved in Article VII 6 hereof, such Obligations obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors such Guarantor for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Note Guarantees.
Appears in 1 contract
Sources: Indenture (Merrill Corp)
Guarantees. Subject to the provisions of this Article XI11, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the this Indenture, the Notes or the other Obligations obligations of the Issuers Company hereunder or thereunder, that: (a) the principal of, of and premium and interest on the Notes shall be promptly paid in full when dueinterest, whether at the maturity or interest payment or mandatory redemption dateif any, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if any, to the extent lawful, and all other Obligations of the Issuers Company to the Holders or the Trustee under the Indenture and the Notes hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms of the Indenture hereof and the Notesthereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that the same shall will be promptly paid in full when due 54 62 or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturitystated maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Noteshereof or thereof, the recovery of any judgment against the IssuersCompany, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the IssuersCompany, any right to require a proceeding first against the IssuersCompany, protest, notice and all demands whatsoever and covenants covenant that its this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations Obligations contained in the Notes and the this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary GuarantorsCompany, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers Company or Subsidiary the Guarantors, any amount paid by any of them either to the Trustee or such Holder, these Guaranteesthis Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII 6 hereof for the purposes of these Guaranteesthis Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII 6 hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guaranteesthis Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guaranteesthe Subsidiary Guarantee.
Appears in 1 contract
Sources: Supplemental Indenture (Windmere Durable Holdings Inc)
Guarantees. (a) Subject to the provisions of this Article XI10, following the satisfaction of the Escrow Release Conditions as described in Section 4.18(e), each of the Subsidiary Guarantors hereby, jointly and severally, irrevocably and unconditionally guarantees guarantees, on a senior unsecured basis, to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the this Indenture, the Notes or the other Obligations obligations of the Issuers Issuer hereunder or thereunder, that: (a1) the principal ofprincipal, premium premium, if any, and interest on the Notes shall be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption dateStated Maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if any, to the extent if lawful, and all other Obligations of the Issuers Issuer to the Holders or the Trustee hereunder or under the Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of the Indenture hereof and the Notesthereof; and (b2) in case of any extension of time of payment or renewal of any Notes or any of such other Obligationsobligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwiseotherwise (collectively, the “Guaranteed Obligations”). Failing payment by the Issuer when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(b) Each of the Guarantors hereby agree agrees that to the fullest extent permitted by applicable law, their its obligations hereunder under its Guarantee shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of or the Notes Trustee with respect to any provisions of the Indenture and the Noteshereof or thereof, the recovery of any judgment against the IssuersIssuer, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantorguarantor. To the fullest extent permitted by applicable law, each Subsidiary Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the IssuersIssuer, any right to require a proceeding first against the IssuersIssuer, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture, or pursuant to Section 10.05 of this Indenture.
(c) Each of the Guarantors also agrees, jointly and severally, to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01 of this Indenture. .
(d) If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary GuarantorsIssuer, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers Issuer or Subsidiary the Guarantors, any amount paid by any of them either to the Trustee or such Holder, these Guaranteeseach Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. .
(e) Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x1) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof 6 for the purposes of these Guaranteesits Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y2) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof6 of this Indenture, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guaranteesits Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders or the Trustee under these any Guarantees.
(f) Each Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation or reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or the Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
(g) In case any provision of any Guarantee shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
(h) Each payment to be made by a Guarantor in respect of its Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.
Appears in 1 contract
Guarantees. Subject to the provisions of this Article XI, each of the Subsidiary Guarantors Guarantor hereby, jointly and severally, unconditionally guarantees on a senior unsecured basis to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the this Indenture, the Notes or held thereby and the other Obligations of the Issuers Company hereunder or and thereunder, that: :
(a) the principal of, premium and interest on premium, if any, interest, if any, on, the Notes shall be promptly paid in full when due, subject to any applicable grace period, whether at the maturity or interest payment or mandatory redemption dateStated Maturity Date, by acceleration, upon repurchase or redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notespremium, if any, (to the extent lawfulpermitted by law) interest, if any, on, the Notes, and all other payment Obligations of the Issuers Company to the Holders or the Trustee under the Indenture and the Notes hereunder or thereunder shall be promptly paid in full or and performed, all in accordance with the terms of the Indenture hereof and the Notesthereof; and and
(b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that the same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at the Stated MaturityMaturity Date, by acceleration acceleration, upon repurchase or otherwiseredemption or otherwise (the obligations described in Section 11.01(a) and Section 11.01(b), collectively, the “Guaranteed Obligations”). Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. An Event of Default under this Indenture or the Notes shall constitute an event of default under the Guarantees, and shall entitle the Holders to accelerate the Obligations of the Guarantors hereunder and under the Notes in the same manner and to the same extent as the Obligations of the Company hereunder and under the Notes. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations Obligations hereunder shall be unconditional, irrespective of the validity, regularity validity or enforceability of the Notes or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Noteshereof or thereof, the recovery of any judgment against the IssuersCompany, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To Each Guarantor, to the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the IssuersCompany, any right to require a proceeding first against the IssuersCompany, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations Obligations contained in the Notes and this Indenture or upon the Indenturerelease of such Guarantee pursuant to Section 11.03 hereof. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Company, the Guarantors, or any custodian, trusteeTrustee, liquidator or other similar official acting in relation to either the Issuers Company or Subsidiary the Guarantors, any amount paid by the Company or any of them Guarantor to the Trustee or such Holder, these the Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to, and hereby waives, any right to exercise any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby, except as provided under Section 11.04 hereof. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII VI hereof for the purposes of these Guaranteesits Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed herebythereby, and (yii) in the event of any declaration of acceleration of such Obligations as provided in Article VII VI hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors each Guarantor for the purpose of these Guaranteesits Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as pursuant to Section 11.04 hereof after the exercise of such right does not impair Notes and the rights of Obligations hereunder shall have been paid in full to the Holders under these the Guarantees.
Appears in 1 contract
Sources: Indenture (Regal Rexnord Corp)
Guarantees. Subject to the provisions of this Article XI11, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees guarantee to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the this Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) the principal of, premium premium, interest and interest Liquidated Damages, if any, on the Notes shall be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium premium, interest and interest Liquidated Damages, if any, on the Notes, if any, to the extent if lawful, and all other Obligations of the Issuers to the Holders or the Trustee under the this Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of the this Indenture and the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligationsobligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment 87 94 when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the this Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants covenant that its Guarantee the Guarantees shall not be discharged except by complete performance of the obligations contained in the Notes and the this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them either to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations obligations guaranteed hereby until payment in full of all Obligations obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII 6 hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII 6 hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guarantees.
Appears in 1 contract
Sources: Indenture (Leviathan Finance Corp)
Guarantees. Subject to the provisions of this Article XISection 10, each of the Subsidiary Guarantors hereby, jointly and severally, fully and unconditionally guarantees to each Holder of a Note authenticated guarantees, as primary obligor and delivered by the Trustee and not merely as surety, to the Trustee and its successors and assignsULCA Collateral Agent for the benefit of the Secured Parties, irrespective of the validity and enforceability of the Indenture, the Notes this Agreement or the other Obligations of the Issuers hereunder or thereunderBorrower Obligations, that: :
(a) the principal of, premium and interest on the Notes Borrower Obligations shall be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption datematurity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if any, to the extent lawful, and all other Obligations of the Issuers to the Holders or the Trustee under the Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of the Indenture and the Noteshereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Borrower Obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturitystated maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the IndentureLoan Documents, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Administrative Agent with respect to any provisions of the Indenture and the Noteshereof or thereof, the recovery of any judgment against the IssuersBorrower, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantorguarantor. To Each Guarantor hereby waives (to the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives ) diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the IssuersBorrower, any right to require a proceeding first against the IssuersBorrower, protest, notice and all demands whatsoever and covenants that its this Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise pursuant to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one handSection 9.20, and the Holders any rights of orden and the Trusteeexcusión it may have by virtue of law or otherwise, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for the purposes of these GuaranteesArticles 2812 (two thousand eight hundred and twelve), notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect 2814 (two thousand eight hundred and fourteen) and 2816 (two thousand eight hundred and sixteen) of the Obligations guaranteed herebyMexican Federal Civil Code, and (y) in its relative articles of the event civil code of any declaration state of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these GuaranteesMexico.
Appears in 1 contract
Sources: Uncommitted Letter of Credit and Reimbursement Agreement (New Fortress Energy Inc.)
Guarantees. Subject to the provisions of this Article XITwelve, each of the Subsidiary Guarantors hereby, Guarantor jointly and severallyseverally unconditionally guarantees, unconditionally guarantees on an unsecured senior basis, to each Holder of a Note Security authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the this Indenture, the Notes Securities, or the other Obligations obligations of the Issuers Company to the Holders or the Trustee hereunder or thereunder, that: under the Securities that (a) the principal of, premium premium, if any, and any accrued and unpaid interest and Liquidated Damages on the Notes Securities shall be promptly duly and punctually paid in full when due, whether at the maturity or interest payment or mandatory redemption datematurity, by acceleration, redemption acceleration or otherwise, and interest on the overdue principal of, premium and interest on the Notespremium, if any, and (to the extent lawful, permitted by law) interest on the Securities and that all other Obligations obligations of the Issuers Company to the Holders or the Trustee hereunder or under the Indenture and the Notes Securities (including fees, expenses or other) shall be promptly paid in full or performed, all in accordance with the terms of the Indenture hereof and the Notesthereof; and (b) in case of any extension of time of payment or renewal of any Notes Securities or any of such other Obligationsobligations, that the same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturitystated maturity, by acceleration or otherwise; and (c) any and all cost and expenses (including, without limitation, reasonable attorneys' fees and expenses) incurred by the Trustee or its agents or any Holder of Securities in enforcing any rights under any Guarantee shall be promptly paid in full when due. Failing payment when so due of any amount so guaranteed or failing performance of any performance so guaranteed other Indenture Obligation of the Company to the Holders, for whatever reason, the Subsidiary Guarantors each Guarantor shall be jointly and severally obligated to pay pay, or to perform or to cause the performance of, the same immediately. The Subsidiary Each Guarantee shall be a guarantee of payment and not a guarantee of collection. An Event of Default under this Indenture or the Securities shall constitute an event of default under each Guarantee, and shall entitle the Holders of Securities to accelerate the Indenture Obligations of the Guarantors hereby agree that in the same manner and to the fullest same extent permitted by applicable law, their obligations hereunder as the Indenture Obligations of the Company. Each Guarantor's Guarantee shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes Securities or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Securities with respect to any provisions of the Indenture and the Noteshereof or thereof, the recovery of any judgment against the IssuersCompany, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantorguarantor. To the fullest extent permitted by applicable lawBy executing a Guarantee, each Subsidiary Guarantor hereby waives shall be deemed to waive diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the IssuersCompany and such Guarantor, protest, notice and all demands whatsoever and covenants covenant that its Guarantee shall not be discharged except by complete performance of the obligations contained all Indenture Obligations, except as specified in the Notes and the IndentureSection 1203. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers Company or Subsidiary Guarantorssuch Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers Company or Subsidiary Guarantorssuch Guarantor, any amount paid by any of them such entity to the Trustee or such Holder, these Guaranteessuch Guarantor's Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary By executing a Guarantee, each Guarantor agrees shall be deemed to agree that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Indenture Obligations guaranteed hereby until payment in full of all Indenture Obligations guaranteed hereby. Each Subsidiary Guarantor and further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders of Securities and the Trustee, on the other hand, (x) the maturity of the Indenture Obligations guaranteed hereby may be accelerated as provided in Article VII Four hereof for the purposes of these Guaranteesits Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed herebyIndenture Obligations, and (y) in the event of any declaration of acceleration of such Indenture Obligations as provided in Article VII Four hereof, such Indenture Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors such Guarantor for the purpose of these Guaranteesits Guarantee. The Subsidiary Guarantors Indenture Obligations of each Guarantor shall have the rank PARI PASSU in right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of payment with all Indebtedness of such Guarantor that is not, by its terms, expressly subordinated in right does not impair of payment to the rights Indenture Obligations of the Holders under these Guaranteessuch Guarantor.
Appears in 1 contract
Sources: Indenture (Playtex Products Inc)
Guarantees. Subject This Security may after the date hereof be entitled to certain Guarantees made for the benefit of the Holders. Reference is hereby made to the provisions Indenture for the terms of this Article XI, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees any Guarantee. The Company will furnish to each any Holder of record of Securities upon written request and without charge a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability copy of the Indenture, . A-9 [Form of Notation on Security Relating to Guarantee] SENIOR GUARANTEE The Guarantor (as defined in the Notes or Indenture referred to in the other Obligations Security upon which this notation is endorsed) hereby unconditionally guarantees on a senior basis (such guarantee by each Guarantor being referred to herein as the "Guar- ▇▇▇▇▇") the due and punctual payment of the Issuers hereunder or thereunder, that: (a) the principal of, premium premium, if any, and interest and Additional Interest, if any, on the Notes shall be promptly paid in full when dueSecurities, whether at the maturity or interest payment or mandatory redemption datematu- rity, by acceleration, redemption acceleration or otherwise, the due and punctual payment of interest on the overdue principal ofprincipal, premium and interest on the Notesand Additional Interest, if any, to on the extent lawfulSecurities, and the due and punctual performance of all other Obligations ob- ligations of the Issuers Company to the Holders or the Trustee under the Indenture and the Notes shall be promptly paid in full or performedTrustee, all in accordance with the terms set forth in Article Ten of the Indenture Indenture. The obligations of the Guarantor to the Holders of Securities and to the Trustee pursuant to the Guarantee and the Notes; Indenture are expressly set forth in Article Ten of the Indenture, and (b) in case reference is hereby made to such Indenture for the precise terms of the Guarantee therein made. The Guarantee shall not be valid or obligatory for any extension purpose until the cer- tificate of time authentication on the Securities upon which the Guarantee is noted shall have been executed by the Trustee under the Indenture by the manual sig- nature of payment or renewal one of any Notes or any of such other Obligations, that same its authorized officers. This Guarantee shall be promptly paid in full when due or performed governed by and construed in accordance with the terms laws of the extension or renewal, State of New York without regard to principles of conflicts of law. This Guarantee is subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, release upon the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court terms set forth in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice Inden- ture. Newport News Shipbuilding and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guarantees.Dry Dock Company By: ________________________________________ Name: Title:
Appears in 1 contract
Guarantees. Subject to the provisions of this Article XITwelve, each of the Subsidiary Guarantors hereby, hereby jointly and severally, severally unconditionally and irrevocably guarantees to each Holder of a Note Debt Security authenticated and delivered by the Trustee Trustee, and to the Trustee Trustee, the due and its successors and assigns, irrespective punctual payment of the validity principal of (and enforceability of the Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) the principal of, premium and interest on the Notes shall be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notespremium, if any, to the extent lawful, on) and all other Obligations of the Issuers to the Holders or the Trustee under the Indenture and the Notes shall be promptly paid in full or performed, all interest on each such Debt Security (including any additional amounts payable in accordance with the terms of such Debt Security and this Indenture), whether at the Indenture and Stated Maturity, by declaration of acceleration, call for redemption, request for redemption, repurchase at the Notes; and (b) in case option of any extension of time of payment the Holder or renewal of any Notes or any of such other Obligationsotherwise, that same shall be promptly paid in full when due or performed in accordance with the terms of such Debt Security and of this Indenture and all other amounts due and owing under this Indenture. In case of the extension failure of the Issuer punctually to make any such payment of principal (or renewalpremium, subject if any) or interest (including any additional amounts as referred to above), each of the Guarantors hereby agrees to cause any applicable grace periodsuch payment to be made punctually when and as the same shall become due and payable, whether at the Stated MaturityMaturity or by declaration of acceleration, by acceleration call for redemption, request for redemption, repayment or any other amount due and owing under this Indenture at the option of the Holder or otherwise, and as if such payment were made by the Issuer. Failing payment when so due Each Guarantor hereby agrees to pay, in addition to the amounts stated above, any and all expenses (including reasonable counsel fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under any Guarantee. Each of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree agrees that to the fullest extent permitted by applicable law, their its obligations hereunder shall be as if it were principal debtor and not merely surety, and shall be absolute and unconditional, irrespective of the validity, regularity or enforceability of the Notes any Debt Security or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any the Holder of such Debt Security or by the Notes Trustee or the Paying Agent with respect to any provisions thereof or of the Indenture and the Notesthis Indenture, any release of any other guarantor, the recovery of any judgment against the Issuers, Issuer or any action to enforce the same or any other circumstance (other than complete performance) circumstances which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary any Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Each Guarantor hereby waives the benefit of diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the IssuersIssuer, any right to require a proceeding first against the IssuersIssuer, protest, protest or notice with respect to such Debt Security or the indebtedness evidenced thereby and all demands whatsoever whatsoever, and covenants that its Guarantee shall Guarantees will not be discharged except by complete performance of all of the obligations of such Guarantor contained in the Notes this Indenture and the IndentureDebt Securities and in such Guarantees. If any Holder the Trustee or the Trustee Holder of any Debt Security is required by any court or otherwise to return (and does so return) to the Issuers Issuer or Subsidiary Guarantorsto any Guarantor, or any custodian, receiver, liquidator, trustee, liquidator sequestrator or other similar official acting in relation to either the Issuers Issuer or Subsidiary Guarantorssuch Guarantor, any amount paid by any of them to the Trustee or such HolderHolder in respect of a Debt Security, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees further agrees, to the fullest extent that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees lawfully may do so, that, as between the Subsidiary Guarantorsit, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity Maturity of the Obligations obligations guaranteed hereby may be accelerated as provided in Article VII Five hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition extant under any applicable Bankruptcy Law preventing such acceleration in respect of the Obligations obligations guaranteed hereby. The Guarantees of each Guarantor constitute direct, unconditional, unsubordinated and (yexcept as provided by Sections 804 and 805) unsecured obligations of such Guarantor without preference among themselves and will rank at least equally with all other unsecured and unsubordinated obligations of such Guarantor (including unsecured and unsubordinated guarantees by such Guarantor of Indebtedness of others), subject, in the event of any declaration insolvency, to laws of acceleration general applicability relating to or affecting creditors’ rights. Each of such Obligations as provided the Guarantors hereby agrees that its obligations hereunder may be enforced against either of the Guarantors, in Article VII hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable the event of a default in payment with respect to the Debt Securities by the Subsidiary Guarantors for Issuer, without making prior demand upon or seeking to enforce remedies against the purpose of these GuaranteesIssuer, the other Guarantor or other persons. The Subsidiary Guarantors Each Guarantor shall have the right be subrogated to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the all rights of the Holders under these Guaranteesagainst the Issuer in respect of any amounts paid to such Holders by such Guarantor pursuant to the provisions of the Guarantees of this Indenture; provided, however, that no Guarantor shall be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until the principal of (and premium, if any, on) and interest, if any, on all Debt Securities (including any additional amounts as referred to above) issued hereunder shall have been paid in full.
Appears in 1 contract
Guarantees. Subject to the provisions of this Article XIlimitations set forth in Section 11.04, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees Guarantee to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its their respective successors and assigns, irrespective of the validity and enforceability of the this Indenture, the Notes or the other Obligations obligations of the Issuers hereunder or thereunder, that: (a) the principal ofof and premium, premium if any, and interest interest, including Additional Interest, if any, on the Notes shall be promptly paid in full when due, subject to any applicable grace period, whether at the maturity or interest payment or mandatory redemption dateStated Maturity, by acceleration, redemption redemption, required purchase or repurchase or otherwise, and interest on the overdue principal of, premium of and interest on the Notespremium, if any, to the extent and interest, including Additional Interest, if any, if lawful, and all other Obligations obligations of the Issuers to the Holders or the Trustee under the Indenture and the Notes hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms of the Indenture hereof and the Notesthereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligationsobligations, that the same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration acceleration, redemption, required purchase or repurchase or otherwise. Failing In the event the Issuers fail to make payment when so due due, subject to any applicable grace period, of any amount so guaranteed Guaranteed or any performance so guaranteed Guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Noteshereof or thereof, the recovery of any judgment against the IssuersIssuers or any Guarantor, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantorguarantor (other than the payment in full of the amounts Guaranteed). To the fullest extent permitted by applicable law, each Subsidiary Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the IssuersIssuers or another Guarantor, protest, notice and all demands whatsoever and covenants covenant that its Guarantee the Note Guarantees shall not be discharged except by complete performance of the obligations contained in the Notes and the IndentureIndenture Documents. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary any of the Guarantors, or any custodian, trustee, liquidator Custodian or other similar official acting in relation to either the Issuers Company or Subsidiary any of the Guarantors, any amount paid by any of them either to the Trustee or to such Holder, these the Note Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed obligations Guaranteed hereby until payment in full of all Obligations guaranteed obligations Guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed obligations Guaranteed hereby may be accelerated as provided in Article VII hereof 7 for the purposes of these the Note Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, obligations Guaranteed hereby and (y) in the event of any declaration of acceleration of such Obligations obligations as provided in Article VII hereof7, such Obligations obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these the Note Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Trustee or the Holders under these the Note Guarantees.
Appears in 1 contract
Guarantees. Subject Landlord unconditionally guarantees all work performed by or for Landlord in connection with the Landlord's Improvements beginning as of the date of execution of this Lease and continuing to the provisions of this Article XI, each date which is one (1) year after [other than punch list items described in Section 2(g)] the Commencement Date. At the expiration of the Subsidiary Guarantors herebyforegoing Warranty Period, jointly Landlord shall assign to Tenant, and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by Tenant shall have the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) the principal benefit of, premium any and interest on the Notes all guarantees of workmanship and materials which Landlord may receive with respect to such Landlord's Improvements. Landlord's Improvements shall be promptly paid considered substantially completed at such time as the municipality having jurisdiction thereof issues a permanent certificate of occupancy (or, in full when duethe alternative, whether at a temporary certificate of occupancy with conditions therein acceptable to Tenant in its reasonable discretion) permitting Tenant to occupy the maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwiseDemised Premises and conduct its business operations therefrom, and interest on the overdue principal ofLandlord's Improvements are completed except for punch list items, premium and interest on the Notes, if any, to the extent lawful, and all other Obligations of the Issuers to the Holders or the Trustee under the Indenture and the Notes which shall be promptly paid in full or performed, all completed by Landlord in accordance with Section 2.(g); provided, however, ------------- the issuance of a certificate of occupancy shall not be a condition to payment of rent or commencement of the Initial Term if failure to secure such certificate or action is caused by the act or omission of Tenant. From and after the expiration of the Warranty Period, Landlord agrees to cooperate with Tenant in the enforcement by Tenant, at Tenant's sole cost and expense, of any express warranties or guarantees of workmanship or materials given by subcontractors, architects, draftsmen, or materialmen that guarantee or warrant against defective design, workmanship or materials for a period of time in excess of the respective warranty periods. Save and except for the foregoing guarantees which Landlord shall be obligated to uphold, Tenant, upon commencement of the Initial Term, shall have and hold the Demised Premises as the same shall then be without any liability or obligation on the part of Landlord for making any alterations, improvements or repairs of any kind in or about the Demised Premises for the term of this Lease, or any extension or renewal thereof and Tenant agrees to maintain the Demised Premises and all parts thereof in a good and sufficient state of repair and as required under this Lease, other than with respect to the items which are herein guaranteed by Landlord and which Landlord shall be required to repair, maintain, replace, improve and alter during the terms of the Indenture and the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guaranteesguaranty.
Appears in 1 contract
Sources: Lease Agreement (Wells Real Estate Investment Trust Inc)
Guarantees. Subject to the provisions of this Article XI, each of the Subsidiary Guarantors (a) Each Guarantor hereby, jointly and severally, fully, absolutely, unconditionally guarantees and irrevocably guarantees, to each Holder holder of a Note authenticated and delivered by the Trustee Debt Security, and to the Indenture Trustee in its individual capacity and on behalf of each Debtholder, the punctual payment and performance when due of all Indenture Obligations which, for purposes of its successors Guarantee, shall also be deemed to include all commissions, fees, charges, costs and assignsother expenses (including reasonable legal fees and disbursements of counsel) arising out of or incurred by the Indenture Trustee or the Debtholders in connection with the enforcement of any Guarantee and agrees to indemnify and hold harmless each Debtholder and the Indenture Trustee from all losses, irrespective damages, costs, expenses and liabilities suffered or incurred by the Debtholders and the Indenture Trustee resulting or arising from or relating to any failure by the Trust to unconditionally and irrevocably pay in full or fully perform the Indenture Obligations as and when due provided that the amount of such indemnification shall not exceed the amount of such Indenture Obligations as described in the preceding sentence. Without limiting the generality of the validity and enforceability foregoing, each Guarantor’s liability shall extend to all amounts that constitute part of the Indenture, Indenture Obligations and would be owed by the Notes Trust to such Debtholder or the other Obligations of the Issuers hereunder or thereunder, that: (a) the principal of, premium and interest on the Notes shall be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if any, to the extent lawful, and all other Obligations of the Issuers to the Holders or the Indenture Trustee under the Debt Securities or this Indenture and but for the Notes shall be promptly paid in full fact that they are unenforceable, reduced, limited, suspended or performednot allowable due to the existence of a bankruptcy, all in accordance with reorganization or similar proceeding involving the terms of the Indenture and the Notes; and Trust.
(b) in case Each Guarantor and, by its acceptance hereof, each Debtholder hereby confirms that it is the intention of all such parties that the guarantee by such Guarantor pursuant to its Guarantee not constitute a fraudulent transfer or conveyance for purposes of any extension Bankruptcy Law, the Fraudulent Conveyances Act (Alberta) or other Canadian or United States federal, provincial or state law or the provisions of time of payment its local law relating to fraudulent transfer or renewal of any Notes or any conveyance. To effectuate the foregoing intention, the Debtholders and each Guarantor hereby irrevocably agree that the obligations of such other Obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that under its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return limited to the Issuers or Subsidiary Guarantorsmaximum amount as shall, or any custodian, trustee, liquidator or after giving effect to all other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any contingent and fixed liabilities of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force Guarantor and effect. Each Subsidiary Guarantor agrees that it shall not be entitled after giving effect to any right of subrogation in relation to the Holders in respect collections from or payments made by or on behalf of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary other Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed herebyobligations of such other Guarantor under its Guarantee or pursuant to paragraph (c) of this Section 14.2, result in the obligations of such Guarantor under its Guarantee not constituting a fraudulent conveyance or fraudulent transfer under any such federal, provincial or state law.
(c) In order to provide for just and (y) equitable contribution among the Guarantors, the Guarantors agree, inter se, that in the event any payment or distribution is made by any Guarantor (a “Funding Guarantor”) under its Guarantee, such Funding Guarantor shall be entitled to a contribution from each other Guarantor (if any) in a pro rata amount based on the Adjusted Net Assets of each Guarantor (including the Funding Guarantor) for all payments, damages and expenses incurred by the Funding Guarantor in discharging the Indenture Obligations of the Trust or any declaration of acceleration other Guarantor’s obligations with respect to its Guarantee. “Adjusted Net Assets” of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) Guarantor at any date shall forthwith become due and payable by mean the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guarantees.lesser of:
Appears in 1 contract
Guarantees. Subject (a) In order to the provisions of induce Purchaser to enter into this Article XIAgreement, each of the Subsidiary Guarantors herebySeller Parent hereby absolutely, jointly irrevocably and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its Purchaser Indemnified Parties, their successors and assigns, irrespective the full performance and observation of all the terms, covenants, conditions, provisions and agreements to be performed or observed by Seller or another member of the validity Seller Group when required to be performed or observed, and enforceability the payment in full of all amounts owed by Seller and such other member of the IndentureSeller Group to any Purchaser Indemnified Parties when due and payable, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) the principal of, premium and interest on the Notes shall be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if any, to the extent lawful, and all other Obligations of the Issuers to the Holders or the Trustee under the Indenture and the Notes shall be promptly paid in full or performed, all each case in accordance with the terms of this Agreement or the Indenture Ancillary Agreements. Such guarantee shall be as primary obligor and the Notes; and (b) in case of any extension of time not merely as surety, shall be a guarantee of payment or renewal and performance and not of any Notes or any of such other Obligations, that same collection and shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwisea continuing guarantee. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor Seller Parent hereby waives acceptance, diligence, promptness, presentment, demand of paymentpayment or performance, filing of claims with a court in the event of insolvency or bankruptcy of the IssuersSeller or another Seller Group member, any right to require a proceeding (or other exhaustion of remedies) first against the IssuersSeller or such other Seller Group member to join Seller or such other Seller Group member in any enforcement action or to first resort to any other means of obtaining payment or performance, protest, notice and all demands whatsoever whatsoever. Seller Parent agrees to pay any and covenants that its Guarantee shall not be discharged except by complete performance all costs and expenses (including reasonable fees and disbursements of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid counsel) incurred by any of them the Purchaser Indemnified Parties in enforcing any rights under this Section 12.13(a). Seller Parent hereby makes all of the representations and warranties set forth in Sections 4.1, 4.2 and 4.3, with references therein to “Seller” deemed to be replaced by “Seller Parent”. Seller Parent hereby acknowledges and agrees to be bound by all of the provisions of Article XII of this Agreement.
(b) In order to induce Seller to enter into this Agreement, Purchaser Parent hereby absolutely, irrevocably and unconditionally guarantees to the Trustee Seller Indemnified Parties, their successors and assigns, the full performance and observation of all the terms, covenants, conditions, provisions and agreements to be performed or such Holderobserved by Purchaser and its Affiliates when required to be performed or observed, these Guarantees, to and the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed herebyamounts owed by Purchaser and its Affiliates to any Seller Indemnified Parties when due and payable, in each case in accordance with the terms of this Agreement or the Ancillary Agreements. Each Subsidiary Guarantor further agrees thatSuch guarantee shall be as primary obligor and not merely as surety, as between the Subsidiary Guarantorsshall be a guarantee of payment and performance and not of collection and shall be a continuing guarantee. Purchaser Parent hereby waives acceptance, on the one handdiligence, and the Holders and the Trusteepromptness, on the other handpresentment, (x) the maturity demand of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for the purposes payment or performance, filing of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) claims with a court in the event of insolvency or bankruptcy of Purchaser or its Affiliates, any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from require a proceeding (or other exhaustion of remedies) first against Purchaser or its Affiliates or to join Purchaser or its Affiliates in any non-paying Subsidiary Guarantor so long as the exercise enforcement action or to first resort to any other means of such right does not impair the rights obtaining payment or performance, protest, notice and all demands whatsoever. Purchaser Parent agrees to pay any and all costs and expenses (including reasonable fees and disbursements of counsel) incurred by any of the Holders Seller Indemnified Parties in enforcing any rights under these Guaranteesthis Section 12.13(b). Purchaser Parent hereby makes all of the representations and warranties set forth in Sections 5.1, 5.2 and 5.3, with references therein to “Purchaser” deemed to be replaced by “Purchaser Parent”. Purchaser Parent hereby acknowledges and agrees to be bound by all of the provisions of Article XII of this Agreement.
(c) Each of Seller Parent and Purchaser Parent agrees that service as specified in Section 12.6 shall be valid and sufficient service, and each of Seller Parent and Purchaser Parent waives any objections to such service.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Genesis Energy Lp)
Guarantees. (a) Subject to the provisions of this Article XI13, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the this Indenture, the Notes or held thereby and the other Obligations obligations of the Issuers Company hereunder or and thereunder, that: (a) the principal of, premium of and interest on the Notes shall will be promptly paid in full when due, subject to any applicable grace period, whether at the maturity or interest payment or mandatory redemption dateMaturity Date, by acceleration, redemption upon repurchase or otherwise, and interest on the overdue principal of, premium of and (to the extent permitted by law) interest on the Notes, if any, to the extent lawful, and all other Obligations payment obligations of the Issuers Company to the Holders or the Trustee under the Indenture and the Notes shall hereunder or thereunder will be promptly paid in full or and performed, all in accordance with the terms of the Indenture hereof and the Notesthereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligationsobligations, that the same shall will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturitythe Maturity Date, by acceleration acceleration, upon repurchase or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall will be jointly and severally obligated to pay the same immediately. An Event of Default with respect to the Notes under this Indenture shall constitute an event of default under the Guarantees, and shall entitle the Holders to accelerate the obligations of the Guarantors hereunder in the same manner and to the same extent as the obligations of the Company.
(b) The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Noteshereof or thereof, the recovery of any judgment against the IssuersCompany, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To Each Guarantor further, to the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the IssuersCompany, any right to require a proceeding first against the IssuersCompany, protest, notice and all demands whatsoever and covenants that its Guarantee shall will not be discharged except by complete performance of the obligations contained in the Notes and this Indenture, or pursuant to Section 13.03.
(c) Each of the Indenture. Guarantors also agrees, jointly and severally, to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 13.01.
(d) If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Company, the Guarantors, or any custodianCustodian, trustee, liquidator Trustee or other similar official acting in relation to either the Issuers Company or Subsidiary the Guarantors, any amount paid by the Company or any of them Guarantor to the Trustee or such Holder, these the Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to to, and hereby waives, any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations obligations guaranteed hereby. .
(e) Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (xa) the maturity of the Obligations obligations guaranteed hereby may be accelerated as provided in Article VII hereof 6 of this Indenture for the purposes of these Guaranteesits Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations obligations guaranteed herebythereby, and (yb) in the event of any declaration of acceleration of such Obligations obligations as provided in Article VII hereof6 of this Indenture, such Obligations obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guaranteesits Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these the Guarantees.
(f) Each Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or the Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
(g) In case any provision of any Guarantee shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
(h) Each payment to be made by a Guarantor in respect of its Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.
(i) For the avoidance of doubt, the Guarantees with respect to a Note are not convertible and shall automatically terminate when such Note is converted in accordance with this Indenture.
Appears in 1 contract
Sources: Indenture (On Semiconductor Corp)
Guarantees. Subject to the provisions of this Article XI10, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the this Indenture, the Notes or the other Obligations obligations of the Issuers Company hereunder or thereunder, that: (a) the principal of, premium premium, if any, and interest on the Notes shall will be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption datematurity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium premium, if any, and interest on the Notes, if any, to the extent if lawful, and all other Obligations obligations of the Issuers Company to the Holders or the Trustee under the Indenture and the Notes shall hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms of the Indenture hereof and the Notesthereof; and (b) in the case of any extension of time of payment or renewal of any Notes or any of such other Obligationsobligations, that the same shall will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturitystated maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Noteshereof or thereof, the recovery of any judgment against the IssuersCompany, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantorguarantor. To the fullest extent permitted by applicable law, each Each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the IssuersCompany, any right to require a proceeding first against the IssuersCompany, protest, notice and all demands whatsoever and covenants covenant that its this Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenturethis Indenture or pursuant to Section 10.05. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary GuarantorsCompany, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers Company or Subsidiary the Guarantors, any amount paid by any of them either to the Trustee or such Holder, these Guaranteesthis Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to assert any right of subrogation in relation to the Holders in respect of any Obligations obligations guaranteed hereby until payment in full of all Obligations obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations obligations guaranteed hereby may be accelerated as provided in Article VII hereof 6 for the purposes of these Guaranteesthis Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations obligations as provided in Article VII hereof6, such Obligations obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guaranteesthis Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-non paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guaranteesthe Guarantee.
Appears in 1 contract
Sources: Indenture (Penson Worldwide Inc)
Guarantees. Subject to the provisions of this Article XI(a) For value received, each of the Subsidiary Guarantors herebyGuarantor, fully and unconditionally, jointly and severallyseverally with each other Guarantor and each other Person which may become a Guarantor hereunder, unconditionally guarantees the Notes and Obligations of the Issuers hereunder and thereunder, and guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunderCollateral Agent, that: (ai) the principal ofof and premium, premium if any, and interest interest, if any, on the Notes shall be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption dateStated Maturity, by acceleration, call for redemption or otherwise, and together with interest on the overdue principal ofprincipal, premium if any, and interest on the Notesany overdue interest, if any, to the extent lawful, and all other Obligations of the Issuers to the Holders Holders, Notes Collateral Agent or the Trustee under this Indenture, the Indenture and Security Documents or the Notes shall be promptly paid in full or performed, all in accordance with the terms of the Indenture hereof and the Notesthereof; and (bii) in case of any extension of time of payment or renewal of any Notes or of any of such other Obligationsobligations, that the same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due Each of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors Guarantees shall be jointly a guarantee of payment and severally obligated to pay the same immediately. The Subsidiary Guarantors not of collection.
(b) Each Guarantor hereby agree agrees that to the fullest extent permitted by applicable law, their its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Noteshereof or thereof, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary .
(c) Each Guarantor hereby waives the benefits of diligence, presentment, demand of for payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the IssuersIssuers or any other Person, protest, notice and all demands whatsoever and covenants that its the Guarantee of such Guarantor shall not be discharged as to any Note or this Indenture except by complete performance of the obligations Obligations contained in such Note and this Indenture and such Guarantee. Each of the Guarantors hereby agrees that, in the event of a Default in payment of principal or premium, if any, or interest on any Note, whether at its Stated Maturity, by acceleration, call for redemption, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Note, subject to the terms and conditions set forth in this Indenture, directly against each of the Guarantors to enforce each such Guarantor’s Guarantee without first proceeding against the Issuers or any other Guarantor. Each Guarantor agrees that if, after the occurrence and during the continuance of an Event of Default, the Trustee, the Notes Collateral Agent or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Notes, to collect interest on the Notes, or to enforce or exercise any other right or remedy with respect to the Notes, such Guarantor shall pay to the Trustee for the account of the Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee, the Notes Collateral Agent or any of the Holders and any other amounts due and owing to the Trustee under this Indenture. .
(d) If any Holder Holder, the Notes Collateral Agent or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantorsany Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantorsany Guarantor, any amount paid by any of them to the Trustee Trustee, the Notes Collateral Agent or such Holder, these Guaranteesthe Guarantee of each of the Guarantors, to the extent theretofore discharged, shall be reinstated in full force and effect. This Section 11.1(d) shall remain effective notwithstanding any contrary action which may be taken by the Trustee, the Notes Collateral Agent or any Holder in reliance upon such amount required to be returned. This Section 11.1(d) shall survive the termination of this Indenture.
(e) Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantorseach Guarantor, on the one hand, and the Holders Holders, the Notes Collateral Agent and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof VI for the purposes of these Guaranteesthe Guarantee of such Guarantor, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereofVI, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors each Guarantor for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right Guarantee of such Guarantor.
(f) Each Guarantor that makes a payment for distribution under its Guarantee is entitled upon payment in full of all guaranteed Obligations under this Indenture to seek contribution from any non-paying Subsidiary each other Guarantor so long as the exercise in a pro rata amount of such right does not impair payment based on the rights respective net assets of all the Holders under these GuaranteesGuarantors at the time of such payment in accordance with GAAP.
Appears in 1 contract
Sources: Indenture (Venator Materials PLC)
Guarantees. Subject to (a) Upon the provisions of this Article XI, each acquisition by the Issuers or any Guarantor of the Capital Stock of any person, if, as a result of such acquisition, such Person becomes a Subsidiary, such Subsidiary Guarantors hereby(other than Foreign Subsidiaries) may, and after the Company's 9-3/4% Senior Subordinated Notes due 2004 are no longer outstanding, shall irrevocably and unconditionally guarantee, 108 118 jointly and severally, unconditionally guarantees on a senior unsecured basis (the "Guarantee") to each Holder of a Note Security authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the this Indenture, the Notes Securities or the other Obligations obligations of the Issuers hereunder under this Indenture or thereunderthe Securities, that: (aw) the principal of, and premium (if any) of and interest (and Liquidated Damages, if any) on the Notes shall Securities will be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption date, by acceleration, redemption call for redemption, upon an Change of Control Offer, an Asset Sale Offer or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if any, to the extent lawful, and ; (x) all other Obligations obligations of the Issuers to the Holders or the Trustee under this Indenture or the Indenture and the Notes shall Securities will be promptly paid in full or performed, all in accordance with the terms of the this Indenture and the NotesSecurities; and (by) in case of any extension of time of payment or renewal of any Notes Securities or any of such other Obligationsobligations, that same shall they will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturitymaturity, by acceleration acceleration, call for redemption, upon an Offer to Purchase or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors each Guarantor shall be jointly and severally obligated to pay the same immediatelybefore failure so to pay becomes an Event of Default. The Subsidiary Guarantors hereby agree that Within 10 days of the date of such Acquisition, such Subsidiary, if it becomes a Guarantor, shall execute and deliver to the fullest extent permitted Trustee a supplemental indenture making such Subsidiary a party to this Indenture.
(b) Each Guarantor shall agree by applicable law, their supplemental indenture that its obligations hereunder with regard to this Guarantee shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes Securities or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which circumstances that might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantorguarantor. To the fullest extent permitted by applicable law, each Subsidiary Each Guarantor hereby waives shall waive diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the IssuersIssuers or right to require the prior disposition of the assets of the Issuers to meet its obligations, protest, notice and all demands whatsoever and covenants covenant that its the Guarantee shall will not be 109 119 discharged except by complete performance of the obligations contained in the Notes Securities and the this Indenture. .
(c) If any Holder or the Trustee is required by any court or otherwise to return to either the Issuers or Subsidiary Guarantorsany Guarantor, or any custodianCustodian, trusteeTrustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantorssuch Guarantor, any amount paid by any of them either the Issuers or such Guarantor to the Trustee or such Holder, these Guaranteesthe Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees shall agree by supplemental indenture that it shall will not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations obligations guaranteed hereby until payment in full of all Obligations obligations guaranteed hereby. Each Subsidiary Guarantor further agrees shall agree that, as between the Subsidiary Guarantorssuch Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the Obligations obligations guaranteed hereby may be accelerated as provided in Article VII hereof Section 6.2 for the purposes of these Guaranteesthis Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect as to the Issuers of the Obligations obligations guaranteed hereby, and (yii) in the event of any declaration of acceleration of such Obligations those obligations as provided in Article VII hereofSection 6.2, such Obligations those obligations (whether or not due and payable) shall will forthwith become due and payable by the Subsidiary Guarantors such Guarantor for the purpose of these Guaranteesthis Guarantee.
(d) Each Guarantor shall confirm, and by its acceptance of a Security issued hereunder each Holder hereby confirms, that it is the intention of all such parties that the guarantee by such Guarantor set forth in Section 11.1(a) not constitute a fraudulent transfer or conveyance for purpose of any Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar Federal or state law. The Subsidiary Guarantors To effectuate the foregoing intention, the Holders irrevocably agree, and such Guarantor shall have agree that the right obligations of such Guarantor under its guarantee set forth in Section 11.1(a) shall be limited to seek the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under its Guarantee or pursuant to the following paragraph of this Section 11.1(d), result in the obligations of such Guarantor under such guarantee not constituting such a fraudulent transfer or conveyance. 110 120 Each Guarantor that makes any payment or distribution under Section 11.1(a) shall be entitled to a contribution from any non-paying Subsidiary each other Guarantor equal to its Pro Rata amount of such payment or distribution so long as the exercise of such right does not impair the rights of the Holders under these the Guarantees. For purposes of the foregoing, the "Pro Rata amount" of any Guarantor means the percentage of the net assets of all Guarantors held by such Guarantor, determined in accordance with GAAP.
Appears in 1 contract
Sources: Indenture (Venture Service Co)
Guarantees. Subject to the provisions of this Article XI10, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) that the principal of, premium and interest on the Notes shall be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if any, to the extent lawful, lawful and all other Obligations of the Issuers to the Holders or the Trustee under the Indenture and the Notes shall be promptly paid in full or performedfull, all in accordance with the terms of the Indenture and the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII 6 hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII 6 hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guarantees.
Appears in 1 contract
Sources: Fourth Supplemental Indenture (PVR Partners, L. P.)
Guarantees. Subject to the provisions of this Article XISection 11.5, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note Security authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity Securities and enforceability of the Indenture, the Notes or the other Obligations of the Issuers Company hereunder or and thereunder, that: (a) the principal of, premium and accrued and unpaid cash interest on (including any Additional Interest) on, the Notes Securities shall be promptly paid in full when due, subject to any applicable grace period, whether at the maturity or interest payment or mandatory redemption datematurity, by acceleration, redemption acceleration or otherwise, and interest on the overdue principal ofprincipal, premium and interest on the Notesany accrued and unpaid cash interest, if any, and interest on any Additional Interest, if any, on the Securities, and all other payment Obligations of the Company to the extent lawful, and Holders or all other Obligations of the Issuers Company to the Holders Trustee hereunder or the Trustee under the Indenture and the Notes thereunder shall be promptly paid in full or and performed, all in accordance with the terms of the Indenture hereof and the Notesthereof; and (b) in case of any extension of time of payment or renewal of any Notes Securities or any of such other Obligations, that the same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturitystated maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, reason the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. An Event of Default under this Indenture or the Securities shall constitute an event of default under the Guarantees, and shall entitle the Holders to accelerate the obligations of the Guarantors hereunder in the same manner and to the same extent as the Obligations of the Company. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity validity or enforceability of the Notes Securities or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Noteshereof or thereof, the recovery of any judgment against the IssuersCompany, any action to enforce the same same, the release of any Guarantee of any other Guarantor or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the IssuersCompany, any right to require a proceeding first against the IssuersCompany, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations Obligations contained in the Notes Securities and the this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof VI for the purposes of these Guaranteesits Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed herebythereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereofVI, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors Guarantor for the purpose of these Guaranteesits Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor as provided in Section 11.5 so long as the exercise of such right does not impair the rights of the Holders or the Trustee under these Guaranteesthe Guarantees or this Indenture.
Appears in 1 contract
Sources: Indenture (Best Buy Co Inc)
Guarantees. (a) Subject to the provisions of this Article XIX, each of the Subsidiary Guarantors herebyGuarantor, jointly and severally, irrevocably and unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee Notes and to the Trustee and its successors and assigns, irrespective on behalf of the validity Holders:
(i) the due and enforceability punctual payment in full of all amounts payable in respect of the Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) the principal of, premium and interest on the Notes shall be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption datestated maturity, by upon acceleration, redemption redemption, repurchase or otherwise, ;
(ii) the due and punctual payment in full of interest on the overdue principal ofamounts and, premium and to the extent permitted by law, interest on the Notes, if any, to ; and
(iii) the extent lawful, due and punctual payment of all other Obligations of the Issuers Company and the other Guarantors to the Holders or the Trustee hereunder or under the Indenture and Notes, including, without limitation, the Notes shall be promptly paid in full payment of fees, expenses, indemnification or performed, all in accordance with the terms other amounts. In case of the Indenture failure of the Company punctually to make any such payment or the failure of the Company or any other Guarantor to pay any such other Obligation, each Guarantor agrees to cause any such payment to be made punctually when due, whether at stated maturity, upon acceleration, redemption, repurchase or otherwise, and as if such payment were made by the Notes; Company and to perform any such other Obligation of the Company immediately. Each Guarantor further agrees to pay any and all expenses (including reasonable counsel fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under these Guarantees. The Guarantees under this Article X are guarantees of payment and not of collection.
(b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that same shall be promptly paid in full when due or performed in accordance with the terms Each of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture Company and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby Guarantors waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, insolvency or bankruptcy of the IssuersCompany or any other Guarantor, any right to require a proceeding first against the IssuersCompany or any other Guarantor, protest, protest or notice with respect to the Notes and all demands whatsoever whatsoever, and covenants that its Guarantee these Guarantees shall not be discharged except by complete performance of the obligations Obligations contained in the Notes and in this Indenture, or as otherwise specifically provided therein or herein.
(c) Each Guarantor waives and relinquishes:
(i) any right to require the Indenture. If any Holder Trustee, the Holders or the Trustee is Company (each, a "Benefited Party") to proceed against the Company, the Subsidiaries of the Company or any other Person or to proceed against or exhaust any security held by a Benefited Party at any time or to pursue any other remedy in any secured party's power before proceeding against the Guarantors;
(ii) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons;
(iii) demand, protest and notice of any kind (except as expressly required by this Indenture), including, but not limited to, notice of the existence, creation or incurrence of any court new or otherwise to return to additional indebtedness or obligation or of any action or non-action on the Issuers or Subsidiary part of the Guarantors, or the Company, the Subsidiaries of the Company, any custodianBenefited Party, trustee, liquidator or other similar official acting in relation to either any creditor of the Issuers or Subsidiary Guarantors, any amount paid by any the Company or the Subsidiaries of them to the Trustee Company or such Holder, these Guarantees, to on the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect part of any Obligations guaranteed other Person whomsoever in connection with any obligations the performance of which are hereby until payment guaranteed;
(iv) any defense based upon an election of remedies by a Benefited Party, including but not limited to an election to proceed against the Guarantors for reimbursement;
(v) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in full amount nor in other respects more burdensome than that of all Obligations guaranteed hereby. the principal;
(vi) any defense arising because of a Benefited Party's election, in any proceeding instituted under the Bankruptcy Law, of the application of Section 1111(b)(2) of the U.S. Bankruptcy Code; and
(vii) any defense based on any borrowing or grant of a security interest under Section 364 of the U.S. Bankruptcy Code.
(d) Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantorssuch Guarantor, on the one hand, and the Holders and the Trustee, on the other hand:
(i) for purposes of the relevant Guarantee, (x) the maturity of the Obligations guaranteed hereby Guaranteed by such Guarantee may be accelerated as provided in Article VII hereof for the purposes of these GuaranteesVI, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed herebythereby, and and
(yii) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) such Obligations shall forthwith become due and payable by the Subsidiary Guarantors such Guarantor for the purpose purposes of these Guarantees. such Guarantee.
(e) The Subsidiary Guarantors Guarantees shall have the right continue to seek contribution from any non-paying Subsidiary Guarantor so long be effective or shall be reinstated, as the exercise case may be, if at any time any payment, or any part thereof, on any of the Notes is rescinded or must otherwise be returned by the Holders or the Trustee upon the insolvency, bankruptcy or reorganization of the Company or any of the Guarantors, all as though such right does payment had not impair the been made.
(f) Each Guarantor shall be subrogated to all rights of the Holders under these Guaranteesagainst the Company in respect of any amounts paid by such Guarantor pursuant to the provisions of the Guarantees or this Indenture; provided, however, that a Guarantor shall not be entitled to enforce or to receive any payments until all amounts payable in respect of all Notes issued hereunder shall have been paid in full.
Appears in 1 contract
Sources: Indenture (Lear Corp /De/)
Guarantees. Subject to the provisions of this Article XI12, each of the Subsidiary Guarantors hereby, Guarantor hereby jointly and severally, severally unconditionally guarantees to each Holder of a Note Security authenticated and delivered made available for delivery by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the this Indenture, the Notes Securities or the other Obligations obligations of the Issuers hereunder Company or thereunderany other Guarantors to the Holders or the Trustee hereunder, that: (a) the principal of, premium of and interest on the Notes shall Securities will be promptly duly and punctually paid in full when due, whether at the maturity or interest payment or mandatory redemption datematurity, by acceleration, redemption acceleration or otherwise, and interest on the overdue principal of, premium and interest on (to the Notesextent permitted by law) interest, if any, to on the extent lawful, Securities and all other Obligations of on the Issuers to the Holders or the Trustee under the Indenture and the Notes shall Securities will be promptly paid in full or performed, all in accordance with the terms of the Indenture hereof and the Notesthereof; and (b) in case of any extension of time of payment or renewal of any Notes Securities or any of such other ObligationsObligations on the Securities, that the same shall will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturityfinal stated maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed guaranteed, for whatever reason, the Subsidiary Guarantors shall each Guarantor will be jointly and severally obligated to pay the same immediately. The Subsidiary An Event of Default under this Indenture or the Securities shall constitute an event of default under the Guarantees, and shall entitle the Holders of Securities to accelerate the obligations of the Guarantors hereunder in the same manner and to the same extent as the obligations of the Company on the Securities. Each of the Guarantors hereby agree agrees that to the fullest extent permitted by applicable law, their its obligations hereunder shall be unconditional, irrespective of the validity, regularity regularly or enforceability of the Notes Securities or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Securities with respect to any provisions hereof or thereof, any release of the Indenture and the Notesany other Guarantor, the recovery of any judgment against the IssuersCompany, any an action to enforce the same same, whether or not a Guarantee is affixed to any particular Security, or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantorguarantor. To Each of the fullest extent permitted by applicable law, each Subsidiary Guarantor Guarantors hereby waives the benefit of diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the IssuersCompany, any right to require a proceeding first against the IssuersCompany, protest, notice and all demands whatsoever and covenants that its Guarantee shall will not be discharged except by complete performance of the obligations contained in the Notes Securities, this Indenture and the IndentureGuarantee. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers Company or Subsidiary Guarantorsto any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers Company or Subsidiary Guarantorssuch Guarantor, any amount paid by any of them the Company or such Guarantor to the Trustee or such Holder, these the Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantorsit, on the one hand, and the Holders of Securities and the Trustee, on the other hand, (xa) subject to this Article 12, the maturity of the Obligations obligations guaranteed hereby may be accelerated as provided in Article VII hereof Section 6.02 for the purposes of these the Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations obligations guaranteed hereby, and (yb) in the event of any declaration of acceleration of such Obligations obligations as provided in Article VII hereofSection 6.02, such Obligations obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these the Guarantees. The Subsidiary Guarantees shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company's assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Securities are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Securities, whether as a "voidable preference," "fraudulent transfer" or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Securities shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. No stockholder, officer, director, employer or incorporator, past, present or future, of any Guarantor, as such, shall have any personal liability under the Guarantees by reason of his, her or its status as such stockholder, officer, director, employer or incorporator. The Guarantors shall have the right to seek contribution from any non-non- paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these the Guarantees. Each Guarantor, and by its acceptance hereof each Holder, hereby confirms that it is the intention of all such parties that in no event shall any Guarantor's obligations under its Guarantee be subject to avoidance under any applicable fraudulent conveyance or similar law of any relevant jurisdiction. Therefore, in the event that the Guarantees would, but for this sentence, be subject to avoidance, then the liability of the Guarantors under the Guarantees shall be reduced to the extent necessary such that such Guarantees shall not be subject to avoidance under the applicable fraudulent conveyance or similar law. Subject to the preceding limitation on liability, the Guarantee of each Guarantor constitutes a guarantee of payment in full when due and not merely guarantee of collectibility.
Appears in 1 contract
Sources: Indenture (Ackerley Group Inc)
Guarantees. Subject (a) The payment by the Company of all amounts due with respect to the provisions Notes and the performance by the Company of its obligations under this Agreement will be absolutely and unconditionally guaranteed by the Reporting Entity and the Affiliates of the Reporting Entity (other than the Company) that (i) are obligors under the Bank Credit Agreement or a Material Credit Facility or (ii) guarantee the obligations of the obligors under the Bank Credit Agreement or such Material Credit Facility (together with any additional Affiliate who delivers a guaranty pursuant to Section 9.7, the “Guarantors”) pursuant to the guaranty agreement substantially in the form of Exhibit 2.2(a) attached hereto and made a part hereof (as the same may be amended, modified, extended or renewed, the “Affiliate Guaranty”).
(b) Any instruments, documents and agreements pursuant to which the Reporting Entity or any Subsidiary agrees to grant Liens in favor of a collateral agent (the “Collateral Agent”) for the benefit of the holders of Notes are hereinafter referred to as the “Collateral Documents.” The Collateral Documents and the Affiliate Guaranty are hereinafter collectively referred to as the “Security Documents.”
(c) [Reserved].
(d) If at any time the Reporting Entity or any Affiliate shall grant to any one or more of the Creditors security of any kind or provide any one or more of the Creditors with additional guaranties or other credit support of any kind pursuant to the requirements of a Material Credit Facility, then the Reporting Entity or such Affiliate shall grant to the holders of the Notes the same security or guaranty so that the holders of the Notes shall at all times be secured on an equal and pro rata basis with such Creditors. All such additional guaranties or security shall be given to the holders of the Notes pursuant to Section 9.7 or 9.8, as applicable, of this Article XI, each Agreement.
(e) The holders of the Subsidiary Guarantors herebyNotes agree that the obligations of any Affiliate (other than the Reporting Entity) under the Affiliate Guaranty and the Liens of the Collateral Documents in respect of all or any part of the collateral therein described shall be automatically released and discharged without the necessity of further action on the part of the holders of the Notes if, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee extent, (i) the corresponding guaranty or Lien given pursuant to the terms of any Material Credit Facility is released, (ii) such Affiliate is no longer, if applicable, a borrower or issuer under any Material Credit Facility and its successors (iii) no Default or Event of Default shall have occurred and assignsthen be continuing or result therefrom (or should any Default or Event of Default then exist or result, irrespective at such later time as any such Default or Event of Default shall cease to exist or result therefrom), provided that in the event the Reporting Entity or any Affiliate shall again become obligated under or with respect to the previously discharged Affiliate Guaranty or Material Credit Facility, or again grant the discharged Lien, as the case may be, pursuant to the terms and provisions of the validity relevant Material Credit Facility, then the Lien granted by the Reporting Entity or its Subsidiaries under a Collateral Document or the obligations of such Affiliate under the Affiliate Guaranty, as the case may be, shall be reinstated and enforceability any release thereof previously given shall be deemed null and void, and such Affiliate Guaranty shall again benefit the holders of the Indenture, Notes on an equal and pro rata basis. Any release by the holders of the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (aunder this Section 2.2(e) the principal of, premium and interest on the Notes shall be promptly paid in full when duedeemed to have occurred concurrently with the release and discharge under the Material Credit Facilities. Further, whether at the maturity any reinstatement of an Affiliate Guaranty or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if any, Lien pursuant to the extent lawful, and all other Obligations of the Issuers to the Holders or the Trustee under the Indenture and the Notes terms hereof shall be promptly paid in full or performed, all in accordance comply with the terms of the Indenture Sections 9.7 and the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately9.8 hereof. The Subsidiary Guarantors hereby agree that to Reporting Entity shall promptly notify the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability holders of the Notes or the Indenture, the absence of any action release of an Affiliate Guaranty pursuant to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture this Section 2.2(e) and the Notes, the recovery shall deliver evidence of any judgment against the Issuers, any action to enforce the same release or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court guaranty or Lien in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guaranteescustomary form.
Appears in 1 contract
Sources: Note Purchase Agreement (STERIS PLC)
Guarantees. Subject (a) The payment by the Company of all amounts due with respect to the provisions Notes and the performance by the Company of its obligations under this Agreement will be absolutely and unconditionally guaranteed by the Reporting Entity (if the Reporting Entity is New STERIS Limited) and the Affiliates of the Reporting Entity (other than the Company) that guarantee the obligations of the obligors under the Bank Credit Agreement (together with any additional Affiliate who delivers a guaranty pursuant to Section 9.7, the “Guarantors”) pursuant to the guaranty agreement substantially in the form of Exhibit 2.2(a) attached hereto and made a part hereof (as the same may be amended, modified, extended or renewed, the “Affiliate Guaranty”).
(b) Any instruments, documents and agreements pursuant to which the Reporting Entity or any Subsidiary agrees to grant Liens in favor of a collateral agent (the “Collateral Agent”) for the benefit of the holders of Notes are hereinafter referred to as the “Collateral Documents.” The Collateral Documents and the Affiliate Guaranties are hereinafter collectively referred to as the “Security Documents.” STERIS CORPORATION NOTE PURCHASE AGREEMENT
(c) [Reserved].
(d) If at any time the Reporting Entity or any Affiliate shall grant to any one or more of the Creditors security of any kind or provide any one or more of the Creditors with additional guaranties or other credit support of any kind pursuant to the requirements of a Material Credit Facility, then the Reporting Entity or such Affiliate shall grant to the holders of the Notes the same security or guaranty so that the holders of the Notes shall at all times be secured on an equal and pro rata basis with such Creditors. All such additional guaranties or security shall be given to the holders of the Notes pursuant to Section 9.7 or 9.8, as applicable, of this Article XI, each Agreement.
(e) The holders of the Subsidiary Guarantors herebyNotes agree that the obligations of any Affiliate (other than New STERIS Limited if such entity is the Reporting Entity) under the Affiliate Guaranty and the Liens of the Collateral Documents in respect of all or any part of the collateral therein described shall be automatically released and discharged without the necessity of further action on the part of the holders of the Notes if, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee extent, (i) the corresponding guaranty or Lien given pursuant to the terms of any Material Credit Facility is released and (ii) no Default or Event of Default shall have occurred and then be continuing or result therefrom (or should any Default or Event of Default then exist or result, at such later time as any such Default or Event of Default shall cease to exist or result therefrom), provided that in the event the Reporting Entity or any Affiliate shall again become obligated under or with respect to the previously discharged Affiliate Guaranty, or again grant the discharged Lien, as the case may be, pursuant to the terms and provisions the relevant Material Credit Facility, then the Lien granted by the Reporting Entity or its successors Subsidiaries under a Collateral Document or the obligations of such Affiliate under the Affiliate Guaranty, as the case may be, shall be reinstated and assignsany release thereof previously given shall be deemed null and void, irrespective and such Affiliate Guaranty shall again benefit the holders of the validity Notes on an equal and enforceability pro rata basis. Any release by the holders of the Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (aunder this Section 2.2(e) the principal of, premium and interest on the Notes shall be promptly paid in full when duedeemed to have occurred concurrently with the release and discharge under the Material Credit Facilities. Further, whether at the maturity any reinstatement of an Affiliate Guaranty or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if any, Lien pursuant to the extent lawful, and all other Obligations of the Issuers to the Holders or the Trustee under the Indenture and the Notes terms hereof shall be promptly paid in full or performed, all in accordance comply with the terms of the Indenture Sections 9.7 and the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately9.8 hereof. The Subsidiary Guarantors hereby agree that to Reporting Entity shall promptly notify the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability holders of the Notes or the Indenture, the absence of any action release of an Affiliate Guaranty pursuant to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture this Section 2.2(e) and the Notes, the recovery shall deliver evidence of any judgment against the Issuers, any action to enforce the same release or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court guaranty or Lien in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guaranteescustomary form.
Appears in 1 contract
Guarantees. Subject to (a) In consideration of good and valuable consideration, the provisions receipt and sufficiency of this Article XIwhich is hereby acknowledged, each of the Subsidiary Guarantors herebyhereby irrevocably and unconditionally guarantees, jointly and severally, unconditionally guarantees on a senior subordinated basis (the "Guarantee") to each Holder of a Note Security authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability enforce ability of the this Indenture, the Notes Securities or the other Obligations obligations of the Issuers hereunder under this Indenture or thereunderthe Securities, that: (aw) the principal of, and premium (if any) of and interest on the Notes shall Securities will be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption date, by acceleration, redemption call for redemption, upon an Change of Control Offer, an Asset Sale Offer or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if any, to the extent lawful, and ; (x) all other Obligations obligations of the Issuers to the Holders or the Trustee under this Indenture or the Indenture and the Notes shall Securities will be promptly paid in full or performed, all in accordance with the terms of the this Indenture and the NotesSecurities; and (by) in case of any extension of time of payment or renewal of any Notes Securities or any of such other Obligationsobligations, that same shall they will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturitymaturity, by acceleration acceleration, call for redemption, upon an Offer to Purchase or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors each Guarantor shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors before failure so to pay becomes an Event of Default.
(b) Each Guarantor hereby agree agrees that its obligations with regard to the fullest extent permitted by applicable law, their obligations hereunder this Guarantee shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes Securities or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which circumstances that might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantorguarantor. To the fullest extent permitted by applicable law, each Subsidiary Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the IssuersIssuers or right to require the prior disposition of the assets of the Issuers to meet its obligations, protest, notice and all demands whatsoever and covenants that its this Guarantee shall will not be discharged except by complete performance of the obligations contained in the Notes Securities and the this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guarantees.
Appears in 1 contract
Sources: Indenture (Ggri Inc)
Guarantees. (a) Subject to the provisions of this Article XI10, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees (such guarantee being the “Note Guarantee” with respect to each Guarantor) to each Holder of holding a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the this Indenture, the Notes or the other Obligations obligations of the Issuers Issuer hereunder or thereunder, that: :
(a1) the principal of, premium and interest and premium, if any, on the Notes shall will be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption datematurity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest and premium, if any, on the Notes, if any, to the extent lawful, and all other Obligations obligations of the Issuers Issuer to the Holders holding Notes or the Trustee under the this Indenture and the Notes shall will be promptly paid in full or performed, all in accordance with the terms of the this Indenture and the Notes; and and
(b2) in case of any extension of time of payment or renewal of any Notes or any of such other Obligationsobligations, that the same shall will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturitystated maturity, by acceleration or otherwise. .
(b) Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(c) The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be are unconditional, irrespective of the validity, regularity or enforceability of the Notes or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the holding Notes with respect to any provisions of the Indenture and the Noteshereof or thereof, the recovery of any judgment against the IssuersIssuer, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the IssuersIssuer, any right to require a proceeding first against the IssuersIssuer, protest, notice and all demands whatsoever and covenants that its Note Guarantee shall will not be discharged except by complete performance of the obligations contained in the Notes and the this Indenture. .
(d) If any Holder holding a Note or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary GuarantorsIssuer, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers Issuer or Subsidiary the Guarantors, any amount paid by any of them to either the Trustee or such Holder, these Guaranteesthe Note Guarantee, to the extent theretofore discharged, shall will be reinstated in full force and effect. .
(e) Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders holding Notes in respect of any Obligations obligations guaranteed hereby until payment in full of all Obligations obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x1) the maturity of the Obligations obligations guaranteed hereby may be accelerated as provided in Article VII 6 hereof for the purposes of these the Note Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations obligations guaranteed hereby, and (y2) in the event of any declaration of acceleration of such Obligations obligations as provided in Article VII 6 hereof, such Obligations obligations (whether or not due and payable) shall will forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guaranteesthe Note Guarantee. The Subsidiary Guarantors shall will have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these the Note Guarantees.
Appears in 1 contract
Guarantees. Subject to No Obligor shall, directly or indirectly, guarantee, assume, endorse, or otherwise become responsible for (directly or indirectly) the provisions Indebtedness, performance, obligations or dividends of this Article XIany Person, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: except:
(a) the principal of, premium and interest on the Notes shall be promptly paid in full when due, whether at the maturity guarantees by any Obligor or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if any, to the extent lawful, and all other Obligations any Subsidiary of an Obligor of the Issuers to the Holders or the Trustee under the Indenture Obligations in favor of Agent and the Notes shall be promptly paid in full or performed, all in accordance with the terms of the Indenture and the Notes; and Secured Parties;
(b) in case guarantees by any Obligor of any extension Indebtedness permitted by Section 9.10 hereof, which guarantees shall be unsecured or secured only by Excluded Property;
(c) guarantees by any Obligor (other than Parent) of time of payment the Indebtedness, performance, obligations or renewal dividends of any Notes or Subsidiary of Parent (other than Excluded Subsidiaries), to any of third party, provided, that, such other Obligations, that same guarantees shall be promptly paid in full when due unsecured or performed in accordance with the terms secured only by Excluded Property;
(d) guarantees by Parent of the extension Indebtedness, performance, obligations or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due dividends of any amount so guaranteed or any performance so guaranteed for whatever reasonSubsidiary of Parent (other than Excluded Subsidiaries), the Subsidiary Guarantors provided, that, such guarantees shall be jointly and severally obligated to pay unsecured or secured only by Excluded Property or Letters of Credit issued for the same immediately. The Subsidiary Guarantors hereby agree that to account of Parent;
(e) guarantees by Obligors of the fullest extent permitted by applicable lawIndebtedness, their performance, obligations hereunder or dividends of any Excluded Subsidiary, provided, that, (i) such guarantees shall be unconditionalunsecured or secured only by Excluded Property, irrespective and (ii) in no event shall the aggregate principal amount of the validityliability of Obligors under such guarantees exceed $25,000,000 in the aggregate outstanding at any time;
(f) any guarantee, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same comfort letter or any other circumstance any agreement (other than complete performancecontingent or otherwise) which might to purchase, repurchase or otherwise constitute a legal or equitable discharge or defense acquire obligations of a Subsidiary Guarantor. To Financing Subsidiary, or to provide funds for the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand payment or discharge of payment, filing of claims with a court such obligation (whether in the event form of insolvency loans, advances, stock purchases, capital contributions or bankruptcy otherwise), or to maintain the solvency or any balance sheet or other financial condition of a Financing Subsidiary, in any such case if the Issuerspurpose or intent of such agreement is to provide assurance that such obligation will be paid or discharged, or that any right to require a proceeding first agreements relating thereto will be complied with, or that the holders of such obligation will be protected against the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained loss in the Notes and the Indenture. If any Holder or the Trustee is required respect thereof by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor Obligor so long as the exercise of such right does not impair the rights of the Holders under these Guaranteesguarantee, comfort letter or other agreement is unsecured and is required or mandated by a Governmental Authority;
(g) CS Securitization Undertakings; and
(h) guarantees constituting Permitted Disposition Transactions.
Appears in 1 contract
Guarantees. Subject This Section 13.01 and Section 13.02 ----------- apply to the provisions Securities of this Article XI, each any series of any Subsidiary Issuer to the extent that the form of the Subsidiary Guarantors hereby, jointly Guarantees to be endorsed on such Securities is not otherwise established as contemplated by Section 3.01. The Guarantor hereby fully and severally, unconditionally guarantees to each Holder of a Note Security of each series issued by a Subsidiary Issuer, authenticated and delivered by the Trustee the due and to the Trustee and its successors and assigns, irrespective punctual payment of the validity principal (including any amount due in respect of original issue discount) of and enforceability of the Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) the principal of, any premium and interest on such Security (and any Additional Amounts (as defined in Section 10.07) payable in respect thereof), and the Notes due and punctual payment of any sinking fund payments provided for pursuant to the terms of such Security, when and as the same shall be promptly paid in full when duebecome due and payable, whether at the maturity or interest payment or mandatory redemption dateStated Maturity, by declaration of acceleration, call for redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if any, to the extent lawful, and all other Obligations of the Issuers to the Holders or the Trustee under the Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of the Indenture such Security and the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediatelythis Indenture. The Subsidiary Guarantors Guarantor hereby agree agrees that to in the fullest extent permitted by applicable law, their event of an Event of Default its obligations hereunder shall be as if it were a principal debtor and not merely a surety, and shall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of the validity, regularity any Security of any series or enforceability of the Notes or the this Indenture, the absence of any action failure to enforce the sameprovisions of any Security of any series or this Indenture, any waiver waiver, modification or consent indulgence granted to the applicable Subsidiary Issuer with respect thereto, by any the Holder of the Notes with respect to any provisions of the Indenture and the Notes, the recovery Security of any judgment against series of such Subsidiary Issuer or the IssuersTrustee, any action to enforce the same or any other circumstance (other than complete performance) circumstances which might may otherwise constitute a legal or equitable discharge of a surety or defense guarantor; provided, however, that, notwithstanding the -------- ------- foregoing, no such waiver, modification or indulgence shall, without the consent of the Guarantor, increase the principal amount of any Security of a Subsidiary GuarantorIssuer or the interest rate thereon or increase any premium payable upon redemption thereof. To the fullest extent permitted by applicable law, each Subsidiary The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency merger or bankruptcy of the Issuersapplicable Subsidiary Issuer, any right to require a proceeding first against such Subsidiary Issuer, the Issuersbenefit of discussion, protest, protest or notice with respect to any Security of such Subsidiary Issuer or the indebtedness evidenced thereby or with respect to any sinking fund payment required pursuant to the terms of such Security issued under this Indenture and all demands whatsoever whatsoever, and covenants that its this Guarantee shall will not be discharged with respect to such Security except by complete performance payment in full of the obligations contained principal thereof and any premium and interest thereon or as provided in the Notes and the IndentureArticle IV, Section 8.01 or Section 10.12. If any Holder or the Trustee is required by any court or otherwise to return to any Subsidiary Issuer, the Issuers or Subsidiary GuarantorsGuarantor, or any custodian, trustee, liquidator or other similar official acting in relation to either such Issuer or the Issuers or Subsidiary Guarantors, Guarantor any amount paid by any of them such Issuer or the Guarantor to the Trustee or such Holder, these Guarantees, this Guarantee to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary The Guarantor further agrees that, as between the Subsidiary GuarantorsGuarantor, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity Maturity of the Obligations obligations guaranteed hereby may be accelerated as provided in Article VII V hereof for the purposes of these Guaranteesthis Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations obligations guaranteed hereby. The Guarantor also agrees, to pay any and all reasonable costs and expenses (yincluding reasonable attorneys' fees and expenses) incurred by the Trustee or any Holders in enforcing any rights under this Guarantee. The Guarantor hereby waives any right of set-off which the event Guarantor may have against the Holder of any declaration Security of acceleration a Subsidiary Issuer in respect of such Obligations as provided in Article VII hereof, such Obligations (whether any amounts which are or not due and payable) shall forthwith may become due and payable by the such Holder to such Subsidiary Guarantors for the purpose of these GuaranteesIssuer. The Subsidiary Guarantors Guarantor shall have the right be subrogated to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the all rights of the Holders of any series of Securities and the Trustee against the applicable Subsidiary Issuer in respect of any amounts paid to such Holders and the Trustee by the Guarantor pursuant to the provisions of the Guarantees; provided, however, that the Guarantor shall not be entitled to enforce or to -------- ------- receive any payments arising out of or based upon, such right of subrogation until the principal of, premium, if any, and interest and any Additional Amounts on all of the Securities of such series shall have been paid in full. No past, present or future stockholder, officer, director, employee or incorporator of the Guarantor shall have any personal liability under these Guaranteesthe Guarantees set forth in this Section 13.01 by reason of his or its status as such stockholder, officer, director, employee or incorporator. The Guarantees set forth in this Section 13.01 shall not be valid or become obligatory for any purpose with respect to a Security until the certificate of authentication on such Security shall have been signed by or on behalf of the Trustee.
Appears in 1 contract
Guarantees. (a) Subject to the provisions of this Article XI13, each of the Subsidiary Guarantors hereby, jointly and severally, fully and unconditionally guarantees guarantee to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the this Indenture, the Notes or held thereby and the other Obligations obligations of the Issuers Company hereunder or and thereunder, that: (ai) the principal of, premium of and interest on the Notes shall will be promptly paid in full when due, subject to any applicable grace period, whether at the maturity or interest payment or mandatory redemption dateMaturity Date, by acceleration, redemption upon Redemption, upon prepayment or otherwise, and interest on the overdue principal of, premium of and (to the extent permitted by law) interest on the Notes, if any, to and the extent lawfulSettlement Amounts upon exchange will be promptly paid and/or delivered in full when due upon exchange, and all other Obligations payment obligations of the Issuers Company to the Holders or the Trustee under the Indenture and the Notes shall hereunder or thereunder will be promptly paid in full or and performed, all in accordance with the terms of the Indenture hereof and the Notesthereof; and (bii) in case of any extension of time of payment or renewal of any Notes or any of such other Obligationsobligations, that the same shall will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturitythe Maturity Date, by acceleration acceleration, upon Redemption, upon prepayment or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be will be, jointly and severally severally, obligated to pay the same immediately. An Event of Default with respect to the Notes under this Indenture shall constitute an event of default under the Guarantees, and shall entitle the Holders to accelerate the obligations of the Guarantors hereunder in the same manner and to the same extent as the obligations of the Company.
(b) The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their respective obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Noteshereof or thereof, the recovery of any judgment against the IssuersCompany, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To Each Guarantor further, to the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the IssuersCompany, any right to require a proceeding first against the IssuersCompany, protest, notice and all demands whatsoever and covenants that its Guarantee shall will not be discharged except by complete performance of the obligations contained in the Notes and this Indenture, or pursuant to Section 13.03.
(c) Each of the Indenture. Guarantors also agrees, jointly and severally, to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 13.01.
(d) If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Company, the Guarantors, or any custodianCustodian, trustee, liquidator Trustee or other similar official acting in relation to either the Issuers Company or Subsidiary the Guarantors, any amount paid by the Company or any of them Guarantor to the Trustee or such Holder, these the Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. .
(e) Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (xa) the maturity of the Obligations obligations guaranteed hereby may be accelerated as provided in Article VII hereof 6 of this Indenture for the purposes of these Guaranteesits Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations obligations guaranteed herebythereby, and (yb) in the event of any declaration of acceleration of such Obligations obligations as provided in Article VII hereof6 of this Indenture, such Obligations obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors such Guarantor for the purpose of these Guaranteesits Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these the Guarantees.
(f) Each Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or the Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
(g) In case any provision of any Guarantee shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
(h) Each payment to be made by a Guarantor in respect of its Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature (provided that Additional Amounts payable pursuant to Section 4.07 shall remain payable).
(i) For the avoidance of doubt, the Guarantees with respect to a Note are not convertible and shall automatically terminate when such Note is exchanged in accordance with this Indenture.
Appears in 1 contract
Sources: Indenture (Carnival PLC)
Guarantees. Subject to the provisions of this Article XI, each (a) In consideration of the Subsidiary Guarantors herebyLoan Commitments and the making of Loans, jointly and severallyfor other good and valuable consideration, unconditionally receipt of which is hereby acknowledged, Hylsa, in its capacity as a guarantor hereunder (in such capacity, a “Guarantor”), from and after the IMSA Assumption Date hereby guarantees to each Holder of a Note authenticated Bank and delivered by the Trustee Administrative Agent and to the Trustee and its their respective successors and assignsassigns the prompt payment in full when due (whether at stated maturity, irrespective by acceleration or otherwise) of the validity and enforceability principal of the Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) the principal of, premium and interest on the Notes shall be promptly paid in full when due, whether at Loans made by the maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if any, Banks to the extent lawful, IMSA and all other Obligations of the Issuers amounts from time to time owing to the Holders Banks or the Trustee Administrative Agent by IMSA under the Indenture this Agreement and the Notes shall be promptly paid other Loan Documents to which IMSA is a party, in full or performed, all each case strictly in accordance with the terms hereof and thereof (such obligations being herein collectively called the “Hylsa Guaranteed Obligations”). Hylsa hereby further agrees that if, from and after the IMSA Assumption Date, IMSA shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of the Indenture Hylsa Guaranteed Obligations, Hylsa will promptly pay the same, without any demand or notice whatsoever, and that in the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other the Hylsa Guaranteed Obligations, that the same shall will be promptly paid in full when due (whether at extended maturity, by acceleration or performed otherwise) in accordance with the terms of the such extension or renewal. Hylsa’s obligations under this Article 16 constitute a guarantee of payment and not merely of collection.
(b) In consideration of the Loan Commitments and the making of Loans, subject and for other good and valuable consideration, receipt of which is hereby acknowledged, IMSA, in its capacity as a guarantor hereunder (in such capacity, a “Guarantor”), from and after the IMSA Assumption Date hereby guarantees to any applicable grace period, each Bank and the Administrative Agent and their respective successors and assigns the prompt payment in full when due (whether at Stated Maturitystated maturity, by acceleration or otherwise) of the principal of and interest on the Loans made by the Banks to Hylsa and all other amounts from time to time owing to the Banks or the Administrative Agent by Hylsa under this Agreement and the other Loan Documents to which Hylsa is a party, in each case strictly in accordance with the terms hereof and thereof (such obligations being herein collectively called the “IMSA Guaranteed Obligations”). Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reasonIMSA hereby further agrees that if, from and after the Subsidiary Guarantors IMSA Assumption Date, Hylsa shall be jointly and severally obligated fail to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted in full when due (whether at stated maturity, by applicable law, their obligations hereunder shall be unconditional, irrespective acceleration or otherwise) any of the validityIMSA Guaranteed Obligations, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce IMSA will promptly pay the same, without any waiver demand or consent by notice whatsoever, and that in the case of any Holder extension of time of payment or renewal of any of the Notes IMSA Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with respect to any provisions the terms of such extension or renewal. IMSA’s obligations under this Article 16 constitute a guarantee of payment and not merely of collection.
(c) In consideration of the Indenture Loan Commitments and the Notesmaking of Loans, and for other good and valuable consideration, receipt of which is hereby acknowledged, IMSA Acero, in its capacity as a guarantor hereunder (in such capacity, a “Guarantor”), from and after the recovery of any judgment against the Issuers, any action IMSA Assumption Date hereby guarantees to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes Bank and the Indenture. If any Holder or Administrative Agent and their respective successors and assigns the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until prompt payment in full when due (whether at stated maturity, by acceleration or otherwise) of the principal of and interest on the Loans made by the Banks to each of Hylsa and IMSA and all other amounts from time to time owing to the Banks or the Administrative Agent by each of Hylsa and IMSA under this Agreement and the other Loan Documents to which Hylsa or IMSA, as applicable, is a party, in each case strictly in accordance with the terms hereof and thereof (such obligations being herein collectively called the “IMSA Acero Guaranteed Obligations” and, collectively with the Hylsa Guaranteed Obligations guaranteed herebyand the IMSA Guaranteed Obligations, the “Guaranteed Obligations”). Each Subsidiary Guarantor IMSA Acero hereby further agrees thatthat if, as between from and after the Subsidiary GuarantorsIMSA Assumption Date, on either Hylsa or IMSA shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of the one handIMSA Acero Guaranteed Obligations, IMSA Acero will promptly pay the same, without any demand or notice whatsoever, and that in the Holders and the Trustee, on the other hand, (x) the maturity case of any extension of time of payment or renewal of any of the Obligations guaranteed hereby may IMSA Acero Guaranteed Obligations, the same will be accelerated as provided promptly paid in Article VII hereof for the purposes of these Guaranteesfull when due (whether at extended maturity, notwithstanding any stay, injunction by acceleration or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (yotherwise) in accordance with the event of any declaration of acceleration terms of such Obligations as provided in extension or renewal. IMSA Acero’s obligations under this Article VII hereof, such Obligations (whether or 16 constitute a guarantee of payment and not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose merely of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guaranteescollection.
Appears in 1 contract
Sources: Loan Agreement (Ternium S.A.)
Guarantees. Subject to a) For good and valuable consideration, the provisions receipt and sufficiency of this Article XIwhich are hereby acknowledged, each of the Guarantors, together with each Subsidiary of the Company which in accordance with Sections 4.18 and 12.8(a) hereof is required in the future to guarantee the Obligations of the Company and the Guarantors herebyunder the Senior Notes, the Guarantees and this Indenture upon execution of a supplemental indenture, hereby jointly and severally, severally and irrevocably and unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, each Holder irrespective of the validity and or enforceability of the Indenture, the Notes this Indenture or the other Securities or the Obligations of the Issuers hereunder or thereunderCompany and the Guarantors under this Indenture, that: (ai) the principal of, premium premium, if any, any interest, and interest Special Interest, if any, on the Senior Notes shall (including, without limitation, any interest that accrues after the filing of a proceeding of the type described in Sections 6.1(g) and (h)) and any fees, expenses and other amounts owing under this Indenture will be promptly duly and punctually paid in full when due, whether at the maturity or interest payment or mandatory redemption dateMaturity, by acceleration, redemption call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase or otherwise, and interest on the overdue principal of, premium and interest on (to the Notesextent permitted by law) interest, if any, to on the extent lawfulSenior Notes and any other amounts due in respect of the Senior Notes, and all other Obligations of the Issuers Company and the Guarantors to the Holders or of the Trustee Senior Notes under this Indenture, the Indenture Senior Notes and the Notes shall Guarantees, whether now or hereafter existing, will be promptly paid in full or performed, all strictly in accordance with the terms hereof and of the Indenture and the Senior Notes; and (bii) in case of any extension of time of payment or renewal of any Senior Notes or any of such other Obligations, that the same shall will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration acceleration, call for redemption, upon Change of Control Offer, Asset Sale Offer, purchase or otherwise; provided, however, that the maximum liability of Seabulk Transmarine Partnership, Ltd. under its Guarantee shall be limited to 66 2/3% of the fair market value, from time to time, of the Seabulk America Official No. Failing 911357. If payment is not made when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors each Guarantor shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (individually whether or not due and payable) shall forthwith such failure to pay has become due and payable by the Subsidiary Guarantors for the purpose an Event of these Guarantees. The Subsidiary Guarantors shall have the right Default which could cause acceleration pursuant to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guarantees.Section
Appears in 1 contract
Sources: Indenture (Hvide Marine Inc)
Guarantees. Subject to the provisions of this Article XISection 10, each of the Subsidiary Guarantors hereby, jointly and severally, fully and unconditionally guarantees to each Holder of a Note authenticated guarantees, as primary obligor and delivered by the Trustee and not merely as surety, to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: Collateral Agent for the
(a) the principal of, premium and interest on the Notes Borrower Obligations shall be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption datematurity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium of and interest on the NotesLoans, if any, to the extent if lawful, and all other Borrower Obligations of the Issuers to the Holders or the Trustee under the Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of the Indenture and the Noteshereof; and (b) in case of any extension of time of payment or renewal of any Notes Loans or any of such other Borrower Obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturitystated maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the IndentureLoan Documents, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Administrative Agent with respect to any provisions of the Indenture and the Noteshereof or thereof, the recovery of any judgment against the IssuersBorrower, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantorguarantor. To Each Guarantor hereby waives (to the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives ) diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the IssuersBorrower, any right to require a proceeding first against the IssuersBorrower, protest, notice and all demands whatsoever and covenants that its this Guarantee shall not be discharged except pursuant to Section 9.20, and any rights of orden and excusión it may have by complete performance virtue of law or otherwise, as provided in Articles 2812 (two thousand eight hundred and twelve), 2814 (two thousand eight hundred and fourteen) and 2816 (two thousand eight hundred and sixteen) of the obligations contained in Mexican Federal Civil Code, and its relative articles of the Notes and civil code of any state of Mexico. This Section 10 shall continue to be effective or be reinstated, as the Indenture. If case may be, if at any Holder time any payment of any of the Obligations is rescinded or the Trustee is required must otherwise be returned by any court or otherwise to return to the Issuers or Subsidiary Guarantors, Secured Parties or any custodianother Person upon the insolvency, trusteebankruptcy or reorganization of the Borrower or otherwise, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or all as though such Holder, these Guarantees, to the extent theretofore discharged, payment had not been made. Each Guarantee shall be reinstated remain in full force and effecteffect and continue to be effective should any petition be filed by or against the Borrower for liquidation or reorganization, should the Borrower become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Borrower’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Obligations are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Obligations, whether as a “voidable preference”, “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Obligations shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. In case any provision of this Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. This Guarantee issued by any Guarantor shall be a general senior obligation of such Guarantor and shall be equal in right of payment with all existing and future Senior Indebtedness of such Guarantor, including the 2025 Note Guarantees, the 2026 Note Guarantees and the 2029 Note Guarantees of such Guarantor. Each Subsidiary payment to be made by a Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of its Guarantee shall be made without set-off, counterclaim, reduction or diminution of any Obligations guaranteed kind or nature. Each Guarantor, the Administrative Agent and each Lender hereby until confirms that it is the intention of all such parties that the Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Guarantee. To effectuate the foregoing intention, the Administrative Agent, each Lender and the Guarantors hereby irrevocably agree that the obligations of each Guarantor shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Section 10, result in the obligations of such Guarantor under its Guarantee not constituting unlawful financial assistance, a fraudulent conveyance or fraudulent transfer under applicable law. Each Guarantor that makes a payment under its Guarantee shall be entitled upon payment in full of all guaranteed Obligations guaranteed hereby. Each Subsidiary under this Agreement to a contribution from each other Guarantor further agrees that, as between the Subsidiary Guarantors, in an amount equal to such other Guarantor’s pro rata portion of such payment based on the one hand, respective net assets of all the Guarantors at the time of such payment determined in accordance with GAAP. Any Guarantee of a Guarantor incorporated under the laws of England and Wales shall not apply to the Holders and extent that it would result in such Guarantee constituting unlawful financial assistance within the Trustee, on the other hand, (x) the maturity meaning of sections 678 or 679 of the Obligations guaranteed hereby may be accelerated Companies Act 2006. Any Guarantee of a Guarantor incorporated under the laws of Ireland shall not apply to the extent that it would result in such Guarantee constituting financial assistance as provided in Article VII hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect prohibited by section 82 of the Obligations guaranteed herebyIrish Companies Act 2014. No Guarantor will exercise any rights that it may now or hereafter acquire against any Loan Party or any other guarantor that arise from the existence, and (y) in the event of any declaration of acceleration payment, performance or enforcement of such Obligations as provided Guarantor’s obligations under this Section 10, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in Article VII hereofany claim or remedy of the Secured Parties against any Loan Party or any other guarantor or any Collateral, such Obligations (whether or not due such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from any Loan Party or any other guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security solely on account of such claim, remedy or right, unless and payable) until the Termination Conditions have been satisfied. If any amount shall be paid to any Guarantor in violation of the immediately preceding sentence at any time prior to the later of the date the Termination Conditions are satisfied and the Maturity Date, such amount shall be held in trust for the benefit of the Secured Parties and shall forthwith become due be paid to the Secured Parties to be credited and applied to the Obligations and all other amounts payable under this Section 10, whether matured or unmatured, in accordance with the terms of this Agreement, or to be held as Collateral for any Obligations or other amounts payable under this Section 10 thereafter arising. If (i) any Guarantor shall make payment to the Secured Parties of all or any part of the Obligations, (ii) the Termination Conditions have been satisfied and (iii) the Maturity Date shall have occurred, the Secured Parties will, at such Guarantor’s request and expense, execute and deliver to such Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to such Guarantor of an interest in the Subsidiary Guarantors Obligations resulting from such payment by such Guarantor. For purposes of this Section 10, each Guarantor incorporated or formed under the laws of Mexico (each a “Mexican Guarantor”), specifically for the purpose of these Guarantees. The Subsidiary Guarantors shall have receiving legal and/or judicial service of process in the United States of America in connection with this Section 10, independently from the Lenders’ right to seek contribution from make and deliver services of process to the Mexican Guarantors in any nonother way or form which is legally valid, hereby designates the following agent and attorney-paying Subsidiary in-fact for such purposes in the United States of America (the “Mexican Process Agent”): Each Mexican Guarantor so long represents and warrants to the Lenders that on the date on which such entity joins this Agreement as a Guarantor (each, an “Accession Date”), it has received evidence of the exercise acceptance by the Mexican Process Agent of its appointment as such by the Mexican Guarantors. Additionally, each Mexican Guarantor covenants and agrees that it will take all necessary and appropriate action in order to grant in favor of the Mexican Process Agent, and within the fifteen (15) calendar days immediately following the applicable Accession Date, a document of authority or power of attorney granted by each Mexican Guarantor in favor of the Mexican Process Agent in full compliance with Mexican law and duly formalized for its validity in Mexico, through such corporate actions as may be required by each Mexican Guarantor’s incorporation documents and bylaws in order to fully and duly formalize the designation of the Mexican Process Agent as each Mexican Guarantor’s agent for service of process in the United States of America in accordance with Mexican law. Each Mexican Guarantor hereby agrees to provide a copy of the formalization of the designation of the Mexican Process Agent within the twenty-five (25) Business Day immediately following the Accession Date of such right does not impair the rights of the Holders under these Guarantees.Mexican Guarantor. [Signature Pages Follow]
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Guarantees. Subject to the provisions of this Article XIlimitations set forth in Section 11.04, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees Guarantee to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its their respective successors and assigns, irrespective of the validity and enforceability of the this Indenture, the Notes or the other Obligations obligations of the Issuers Company hereunder or thereunder, that: (a) the principal ofof and premium, premium if any, and interest interest, including Additional Interest, if any, on the Notes shall be promptly paid in full when due, subject to any applicable grace period, whether at the maturity or interest payment or mandatory redemption dateStated Maturity, by acceleration, redemption redemption, required purchase or repurchase or otherwise, and interest on the overdue principal of, premium of and interest on the Notespremium, if any, to the extent and interest, including Additional Interest, if any, if lawful, and all other Obligations obligations of the Issuers Company to the Holders or the Trustee under the Indenture and the Notes hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms of the Indenture hereof and the Notesthereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligationsobligations, that the same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration acceleration, redemption, required purchase or repurchase or otherwise. Failing payment when so due due, subject to any applicable grace period, of any amount so guaranteed Guaranteed or any performance so guaranteed Guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Noteshereof or thereof, the recovery of any judgment against the IssuersCompany or any Guarantor, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantorguarantor. To the fullest extent permitted by applicable law, each Subsidiary Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the IssuersCompany, any right to require a proceeding first against the IssuersCompany or another Guarantor, protest, notice and all demands whatsoever and covenants covenant that its Guarantee the Note Guarantees shall not be discharged except by complete performance of the obligations contained in the Notes and the IndentureIndenture Documents. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers Company or Subsidiary any of the Guarantors, or any custodian, trustee, liquidator Custodian or other similar official acting in relation to either the Issuers Company or Subsidiary any of the Guarantors, any amount paid by any of them either to the Trustee or to such Holder, these the Note Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed obligations Guaranteed hereby until payment in full of all Obligations guaranteed obligations Guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed obligations Guaranteed hereby may be accelerated as provided in Article VII hereof 7 for the purposes of these the Note Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, obligations Guaranteed hereby and (y) in the event of any declaration of acceleration of such Obligations obligations as provided in Article VII hereof7, such Obligations obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these the Note Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Trustee or the Holders under these the Note Guarantees.
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Sources: Indenture (Thermon Holding Corp.)
Guarantees. Subject to the provisions of this Article XI12, each of the Subsidiary Guarantors herebyGuarantor, jointly and severallyseverally with each other Subsidiary Guarantor, hereby fully and unconditionally guarantees Guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) the principal of, and premium and interest and Additional Interest, if any, on the Notes shall be promptly duly and punctually paid in full when due, whether at the maturity or interest payment or mandatory redemption datematurity, by acceleration, redemption acceleration or otherwise, and interest on the overdue principal ofprincipal, premium and interest on the Notespremium, if any, and (to the extent lawfulpermitted by law) interest on any interest, if any, on the Notes and all other Obligations of the Issuers Company to the Holders or the Trustee hereunder or under the Indenture and Notes or under the Notes Collateral Documents (including fees, expenses or other Obligations) shall be promptly paid in full or performed, all in accordance with the terms of the Indenture hereof and the Notesthereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that the same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturitystated maturity, by acceleration or otherwiseotherwise (collectively, the "Guarantee Obligations"). Failing payment when so due of any amount so guaranteed Guarantee Obligation or failing performance of any performance so guaranteed other Obligation of the Company to the Holders, for whatever reason, the each Subsidiary Guarantors Guarantor shall be jointly and severally obligated to pay pay, or to perform or to cause the performance of, the same immediately. The An Event of Default under this Indenture or the Notes shall constitute an event of default under this Guarantee, and shall entitle the Trustee or the Holders to accelerate the Guarantee Obligations of each Subsidiary Guarantors hereby agree that Guarantor hereunder in the same manner and to the fullest same extent permitted by applicable law, their obligations as the Company Obligations. Each Subsidiary Guarantor hereby agrees that its Guarantee Obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Notesthereof, the recovery entry of any judgment against the IssuersCompany, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, and relinquishes: (a) any right to require the Trustee, the Holders or the Company (each, a proceeding first "Benefitted Party") to proceed against the IssuersCompany, protestthe Subsidiaries or any other Person or to proceed against or exhaust any security held by a Benefitted Party at any time or to pursue any other remedy in any secured party's power before proceeding against such Subsidiary Guarantor; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Benefitted Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) demand, protest and notice of any kind (except as expressly required by this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional Indebtedness or Obligation or of any action or non-action on the part of the Subsidiary Guarantors, the Company, the Subsidiaries, any Benefitted Party, any creditor of the Subsidiary Guarantors, the Company or the Subsidiaries or on the part of any other Person whomsoever in connection with any Obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Benefitted Party, including but not limited to an election to proceed against the Subsidiary Guarantors for reimbursement; (e) any defense based upon any statute or rule of law which provides that the Obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Benefitted Party's election in any proceeding instituted under the Bankruptcy Law of the application of Section 1111(b)(2) of the Bankruptcy Code; and all demands whatsoever and covenants (g) any defense based on any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code. The Subsidiary Guarantors hereby covenant that its Guarantee the Guarantees shall not be discharged except by complete performance payment in full of all Guarantee Obligations, including the obligations contained in principal, premium, if any, and interest on the Notes and all other costs provided for under this Indenture, the IndentureCollateral Documents or as provided in Section 8.01. If any Holder or the Trustee is required by any court or otherwise to return to either the Issuers Company or the Subsidiary Guarantors, or any custodian, trustee, liquidator trustee or other similar official acting in relation to either the Issuers Company or the Subsidiary Guarantors, any amount paid by any of them the Company or the Subsidiary Guarantors to the Trustee or such Holder, these the Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each of the Subsidiary Guarantor Guarantors agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guarantee Obligations guaranteed hereby until payment in full of all Obligations guaranteed herebysuch Obligations. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantorsit, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII 6 hereof for the purposes of these Guaranteeshereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed herebyGuarantee Obligations, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII 6 hereof, such Guarantee Obligations (whether or not due and payable) shall forthwith become due and payable by the such Subsidiary Guarantors Guarantor for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these GuaranteesGuarantee.
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Guarantees. Subject Crescent Operating acknowledges that CBHS has agreed to use its commercially reasonable best efforts to secure the full and complete release, prior to the provisions closing under the Purchase Agreement (and continuously thereafter if not released prior to such closing), of any and all guarantees (the "Magellan Guarantees") by the Sellers or any of their affiliates of any indebtedness or obligations of CBHS or its affiliates (other than CBHS) or any of the Subsidiaries or their subsidiaries (or under any contract assigned to CBHS pursuant to the Purchase Agreement) and to secure full and complete release, prior to the closing under the Purchase Agreement (and continuously thereafter if not released prior to such closing), of any and all obligations (the "Magellan Obligations") (i) of the Sellers or any of their affiliates (other than the Subsidiaries) under any agreement which was assigned to CBHS or its subsidiaries pursuant to the Contribution Agreement, dated as of June 16, 1997, by and among Magellan, Crescent Operating and CBHS, and under which the Sellers or any of their affiliates (other than the Subsidiaries) remain obligors or indemnitors in any manner and (ii) under any agreement of any of the Subsidiaries or their subsidiaries (or under any contract assigned to CBHS pursuant to the Purchase Agreement) and under which the Sellers or any of their affiliates (other than the Subsidiaries) will remain obligors or indemnitors in any manner after the closing under the Purchase Agreement. Set forth on Schedule 4.11 to the Purchase Agreement, to the knowledge, after reasonable inquiry, of those persons specified on Schedule 2.04(b) to the Purchase Agreement, is a list of all Magellan Guarantees and Magellan Obligations. To the extent, after the date hereof, the Sellers discover there are other Magellan Guarantees or Magellan Obligations not identified on Schedule 4.11 to the Purchase Agreement ("Unlisted Obligations"), the Sellers may request Crescent Operating to add any such Unlisted Obligation to such Schedule 4.11. If Crescent Operating agrees to add an Unlisted Obligation, such Schedule 4.11 shall be automatically amended to include the Unlisted Obligation, which shall be treated as if it had appeared on such Schedule 4.11 at the time of execution of this Article XI, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and Agreement. Should Crescent Operating object to the Trustee addition of an Unlisted Obligation, Magellan may terminate any such Unlisted Obligation (and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) the principal of, premium and interest on the Notes shall be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notesrelated underlying obligations, if any); provided that such termination is permitted under the applicable contractual agreement; provided, further, that CBHS or its affiliates shall agree to such termination if permitted under such agreement or permitted by any third party to such agreement. Crescent Operating agrees that, to the extent lawful, and all other Obligations of the Issuers any Magellan Guarantee (listed on Schedule 4.11 to the Holders Purchase Agreement) of any such indebtedness or obligation or any Magellan Obligation (listed on Schedule 4.11 to the Trustee Purchase Agreement) is not fully and completely released on or before the closing under the Indenture Purchase Agreement, Crescent Operating will indemnify and hold harmless the Notes shall be promptly paid in full or performedSellers and their respective affiliates and their successors and assigns from, all in accordance with the terms of the Indenture against and the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby and all claims, liabilities, obligations, losses, costs, expenses, penalties, fines and other judgments (at equity or at law) and damages whenever arising or incurred (including, without limitation, amounts paid in settlement, costs of investigation and reasonable attorneys' fees and expenses) arising out of or relating to the Magellan Guarantees and Magellan Obligations. Notwithstanding anything to the contrary contained in this Agreement, Crescent Operating shall have no obligation under this Section 3.3 unless and until payment the conditions set forth in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one handPurchase Agreement shall have been fulfilled or waived, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable all transactions contemplated by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors Purchase Agreement shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guaranteesbeen consummated.
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Guarantees. Subject 10.2.1 The Seller shall use reasonable efforts to procure that, prior to or at Completion, each Group Company is released from all Guarantees given by or on behalf of any Group Company to the provisions extent that they relate to any Liability or obligation of this Article XIthe Seller's Group or the UK Retail Group (such efforts to include incurring any fees, costs or expenses reasonably required and, with respect to the UK Retail Group, providing any letter of credit or other credit support as replacement for any such Guarantee) and, pending such release, the Seller shall fully indemnify the Purchaser Indemnitees against all such Liabilities under those Guarantees.
10.2.2 The Target shall use reasonable efforts to procure that, with effect from Completion, the Seller and each of the Subsidiary Guarantors herebymembers of the Seller's Group are released from all Guarantees given by them for the benefit of the Group (the "Seller Guarantees"), jointly including with respect to obligations under the Retail Leases and severallyany other Contracts to which any Group Company is a party or obligated under, unconditionally guarantees whether these were given directly to any counterparty under any Contract to which any Group Company is a party or to any financial institution which may have provided a form of security to any counterparty to any Contract to which any Group Company is a party; provided, however, that neither the Purchaser nor any Group Company shall be required to pay (other than costs that the Seller agrees to reimburse at the time Purchaser or Target makes such payment) any fees, costs or expenses, or post any collateral (including any cash or other assets) or agree to any modification or amendment to the underlying Contract (other than immaterial modifications or amendments that in any case do not involve any economic terms or an extension of the duration of such Contract) in exchange for any such release (including any amendments requiring any replacement Guarantee or alteration to any term in such Contract). Unless and until such time as the Target secures such a release, the Target shall cause the Group Companies to indemnify each Holder member of the Seller's Group against all Liabilities arising under such Guarantees which relate to a Note authenticated and delivered by the Trustee Group Company failing to perform its obligations or otherwise having Liability under any relevant underlying contract and to the Trustee extent they relate to the Divestment Business.
10.2.3 Notwithstanding any other provision of this Agreement to the contrary, the Seller shall take all steps required to keep each Seller Guarantee in place, and its successors and assigns, irrespective no member of the validity and enforceability of Seller's Group shall release (or agree to release) any such Seller Guarantee, until such time as the Indenturerelevant Liability or obligation guaranteed by such Seller Guarantee has been performed, satisfied or expired in full in accordance with its terms, it being understood that in each case, the Notes Purchaser shall cause the Group Companies not to renew, amend or the other Obligations of the Issuers hereunder or thereunder, that: (a) the principal of, premium and interest on the Notes shall be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if any, extend any Contract to which a Seller Guarantee relates to the extent lawfulthat it increases exposure under the relevant Seller Guarantee or extends the duration of the benefit of the Seller Guarantee for that Contract, and all other Obligations the Seller shall be permitted to arrange for any Seller Guarantee issued under the Deutsche Bank Guarantee Facility to lapse upon the earlier of: (i) the date that falls 3 (three) years after the Completion Date; and (ii) the expiry of the Issuers relevant underlying Contract.
10.2.4 Other than as set out in Clause 10.2.3, the Seller shall, and shall cause each other member of the Seller's Group, to continue to fully and promptly comply with the Holders terms and obligations under any Third Party Guarantee (or any Contract entered into connection with or otherwise related to such Third Party Guarantee) in respect of which any member of the Trustee Seller's Group has any obligation, including by providing any cash collateral or other credit support required under the Indenture and the Notes shall be promptly paid in full such Third Party Guarantee (or performedsuch Contract), all in accordance with the terms of the Indenture and the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any conditions of such other Obligations, that same shall be promptly paid Third Party Guarantee (or such Contract) until such time as the relevant Liability or obligation guaranteed by such Third Party Guarantee has been performed or satisfied in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guaranteesterms.
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