Guarantees. Subject to the provisions of this Article 10, 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 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 this Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of 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 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 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 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 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 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 5 contracts
Sources: Indenture (Atlas Pipeline Partners Lp), Indenture (Atlas Pipeline Partners Lp), Indenture (Atlas Pipeline Partners Lp)
Guarantees. Subject to the provisions of this Article 10XI, 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 this the 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 this the Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of this 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 this 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 this 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 this 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 6 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 6 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 to the provisions of this Article 10limitations 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 Notes and to the Trustee and its their respective successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the other Obligations of the Issuers Company hereunder or thereunder, that: (a) the principal of, premium and interest (including Additional Interestpremium, if any) , 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 redemption, required purchase or repurchase or otherwise, and interest on the overdue principal of, premium of and interest (including Additional Interest, if any) on the Notespremium, if any, to the extent and interest, if lawful, and all other Obligations obligations of the Issuers Company to the Holders or the Trustee under this Indenture and the Notes hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms of this 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 Company 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 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 this 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 (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 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 Notes Guarantees shall not be discharged except by complete performance of the obligations contained in the Notes and this 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 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 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 6 hereof 7 for the purposes of these the Notes 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 6 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 Notes 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 Notes Guarantees.
Appears in 5 contracts
Sources: Indenture (CURO Group Holdings Corp.), Indenture (CURO Group Holdings Corp.), Indenture (CURO Group Holdings Corp.)
Guarantees. (a) Subject to the provisions of this Article 10, 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 this Indenture, the Notes or the other Obligations obligations of the Issuers Company hereunder or thereunder, that: (a1) the principal ofprincipal, premium and interest (including Additional Interestpremium, 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 (including Additional Interest, if any) on the Notes, if any, to the extent if lawful, and all other Obligations of the Issuers Company to the Holders or the Trustee hereunder or under this Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of this 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 Company 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.
(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 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 this 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 that its this Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. , or pursuant to Section 10.05 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 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. .
(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 6 hereof for the purposes of these Guaranteesthis 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 6 hereofof 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 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 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.
Appears in 5 contracts
Sources: Senior Notes Indenture (AdaptHealth Corp.), Senior Notes Indenture (AdaptHealth Corp.), Senior Notes Indenture (AdaptHealth Corp.)
Guarantees. Subject to the provisions of this Article 10, 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 this 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 (including Additional Interestor in performing, if any) on the Notes shall be promptly paid in full when duewhole or in part, 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 this 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 this Indenture and the Notes; and applicable guarantor (rather than the 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 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 this 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 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, 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 6 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 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 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 10conduct 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 this 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 (including Additional Interestletters of credit, if any) on the Notes shall be promptly paid in full when duesureties, whether at the maturity 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 (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 this Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of this 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 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 Seller Support Obligation, its reasonable best efforts pursuant to this Indenture and the NotesSection 6.10 shall include, if requested, the recovery execution and delivery by Purchaser, or by an Affiliate of any judgment against Purchaser acceptable to the Issuersbeneficiary of such Seller Support Obligation, 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 replacement guarantee that is substantially in the event form of insolvency such Seller Support Obligation. All costs and expenses incurred in connection with providing the release or bankruptcy substitution 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 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, 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 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 6 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 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 10, 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 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 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 Lenders and the Administrative Agent. There shall be excluded in determining Consolidated EBITDA for any period the Disposed EBITDA of any Person, property, business or asset (other than an Unrestricted Subsidiary) sold, transferred or otherwise disposed of or, closed or classified as discontinued operations (but if such operations are classified as discontinued due to the Trustee 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 Indenture Agreement for any period that includes any of the fiscal quarters ended on December 31, 2019, March 31, 2020, June 30, 2020 and the Notes September 30, 2020, Consolidated EBITDA for such fiscal quarters shall be promptly paid $17,981,000, $17,210,000, $13,997,000 and $18,892,000, respectively, in full or performedeach case, all in accordance with the terms of 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 as may 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 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 this 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 this Indenture and acquisitions, dispositions or conversions occurring after 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 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 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 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 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 10, 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 this Indenture, the Notes or the other Obligations obligations of the Issuers Company hereunder or thereunder, that: (a) the principal of, premium and interest (including Additional Interestpremium, if any) on , of, and 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 (including Additional Interestinterest, if any) on , 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 this Indenture and the Notes shall hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms of this 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 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 this 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 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 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 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 4 contracts
Sources: Indenture (Asbury Automotive Group Inc), Indenture (Asbury Automotive Group Inc), Indenture (Asbury Automotive Group 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 10, 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 this 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 (including Additional Interest, if any) 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 (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 this Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of 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 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 this 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 this 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 this 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 6 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 6 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 1011, 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 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 (including Additional and Special Interest, if any) on , 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 (including Additional and Special Interest, if any) on , 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 this Indenture and the Notes shall hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms of this 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 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 this 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 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 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 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 to the provisions of this Article 10, 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 this 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 liabilities (including Additional Interestin respect of Fees and referral fees), if any) on the Notes shall be promptly paid in full when 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 the “Obligations”). Parent further agrees that its liability under the Guarantee shall not be discharged, impaired, diminished or otherwise affected by any (including Additional Interesta) extension, if any) on the Notessettlement, if anymodification, to the extent lawfulcompromise, and all other Obligations of the Issuers to the Holders or the Trustee under this Indenture and the Notes shall be promptly paid in full or performedwaiver, all in accordance with the terms of this Indenture and the Notes; and (b) in case of any extension of time of payment 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 this 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 such debt, obligations or liabilities, or with respect to 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 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 this 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 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 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 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 3 contracts
Sources: Trademark License Agreement (Compass, Inc.), Trademark License Agreement, Trademark License Agreement (Realogy Corp)
Guarantees. (a) Subject to the provisions of this Article 1013, 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 this Indenture, the Notes or the other Obligations obligations of the Issuers Company hereunder or thereunder, that: :
(ai) the principal of, premium and interest (including Additional Interestpremium, if any) on , and interest 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 (including Additional 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 Holders, the Trustee or the Collateral Trustee under this 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 this 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 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 this 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 under this Indenture. 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 6 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 6 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 10, 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 this Indenture, the Notes or the other Obligations of the Issuers hereunder under this Indenture or thereunderthe Notes, that: (ai) the principal of, premium and interest (including Additional Interestpremium, 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 (including Additional Interest, if any) 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 this Indenture and or the Notes shall will be promptly paid in full or performed, all in accordance with the terms of 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 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 this 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 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 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 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 10, 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 this Indenture, the Notes or the other Obligations obligations of the Issuers Company hereunder or thereunder, that: (a) the principal of, premium and interest (including Additional Interestpremium, 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 and interest (including Additional Interestpremium, 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 this Indenture and the Notes shall hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms of this 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 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 this 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 this IndentureIndenture 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 6 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 6 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 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 10, 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 this Indenture, omissions were carried out by you) Accommodation The room(s) to which the Notes or the other Obligations of the Issuers hereunder or thereunder, that: Offer relates Flat The flat (a) the principal of, premium and interest (including Additional Interest, if any) on in which the Notes shall be promptly paid in full when due, whether Accommodation is situated and “a flat” means the Flat or any other 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 (including Additional Interest, if any) 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 this Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of this Indenture contract Licence Fee The amount payable as rent as stated to in the 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 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 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 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 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 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 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 10(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 this 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 (including Additional Interest, if any) 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 of, premium and interest Company under this Indenture (including Additional Interest, if any) on the Notes, if any, obligations to the extent lawful, Trustee) and the Securities and (ii) the full and punctual performance within applicable grace periods of all other Obligations obligations of the Issuers to the Holders or the Trustee Company under this Indenture and the Notes shall be promptly paid in Securities.
(b) Each of TBS and HBO, as primary obligor and not merely as surety, will fully, irrevocably and unconditionally guarantee, to each Holder of Securities (including each Holder of Securities issued under the Indenture after the date of this Indenture) and to the Trustee and its successors and assigns (i) the full or performedand punctual payment of all monies due under the Guarantee of Historic TW, and all in accordance with other monetary obligations of Historic TW under this Indenture (including obligations to the terms Trustee) and (ii) the full and punctual performance within applicable grace periods of all other obligations of Historic TW under this Indenture and the Notes; and its Guarantee.
(bc) 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 further agrees 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 this 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 this 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 Trustee to exercise any right or remedy under this Indenture. If any Holder 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 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 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 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 10, 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 this Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) the principal of, premium and interest (including Additional Interestpremium, 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 this Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of 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 Maturitystated maturity, by acceleration acceleration, by redemption or otherwise. Failing payment when so , and the due and punctual performance of any amount so guaranteed all other obligations of the Company, to the Holders or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly Trustee under the Indenture and severally obligated to pay this Supplemental Indenture in accordance with the same immediatelyterms hereof and thereof. 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 this 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 this 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 6 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 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 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. 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 10, 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 this 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 (including Additional Interest, if any) 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 (including Additional Interest, if any) 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 this Indenture and the Notes terms hereof shall be promptly paid in full or performed, all in accordance comply with the terms of this 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 this 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 this Indenture 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 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 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 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 Guaranteescustomary form.
Appears in 3 contracts
Sources: Note Purchase Agreement (Steris Corp), Note Purchase Agreement (Steris Corp), Note Purchase Agreement (Steris Corp)
Guarantees. Subject to the provisions of this Article 10, 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 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 this Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of 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 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 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 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 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 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 to the provisions of this Article 10, each of the Subsidiary Guarantors hereby, jointly and severally, 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 this Indenture, the Notes or held thereby and the other Obligations of the Issuers hereunder or and thereunder, that: (a) the principal of, premium of and interest (including Additional Interestpremium, 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 of and interest (including Additional Interestpremium, if any, and (to the extent permitted by law) 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 this Indenture and the Notes shall hereunder or thereunder will be promptly paid in full or and performed, all in accordance with the terms of this 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 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 this 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 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 6 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 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 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: Indenture (Calumet, Inc. /DE), Indenture (Calumet, Inc. /DE)
Guarantees. Subject to the provisions of this Article 10, each of the Subsidiary Guarantors hereby, jointly and severally, fully and unconditionally guarantees guarantees, on an unsecured 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 this Indenture, the Notes Securities or the other Obligations obligations of the Issuers Company hereunder or thereunder, that: :
(a) the principal of, premium of and interest (including Additional Interestand premium, if any) , on the Notes Securities shall be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption datematurity, by acceleration, redemption redemption, repurchase or otherwise, and interest on the overdue principal of, premium of and interest (including Additional Interest, if any) on the NotesSecurities, if any, to the extent if lawful, and all other Obligations obligations of the Issuers Company to the Holders or the Trustee under this Indenture and the Notes hereunder or thereunder, including for expenses, indemnification or otherwise, shall be promptly paid in full or performedfull, all in accordance with the terms of this Indenture hereof and the Notesthereof; and 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. 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 immediatelypromptly. 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 unconditional, irrespective of the validity, regularity or enforceability of the Notes Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of this 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 that might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantorguarantor (other than payment in full of all of the obligations of the Company hereunder and under the Securities). 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 IssuersCompany, any right to require a proceeding first against the IssuersCompany, protest, notice and all demands whatsoever and covenants that its each Guarantee shall not be discharged except by complete performance full payment of the obligations contained in the Notes Securities and this Indenture or by release in accordance with the provisions of this Indenture. .
(d) Each Guarantor also agrees to pay any and all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.1.
(e) 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 Guarantors, the Guarantors any amount paid by any of them either to such Holder or the Trustee or such HolderTrustee, these Guaranteesthen each Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary .
(f) Until terminated in accordance with Section 10.6 hereof, each 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 6 Section 5.1 hereof for the purposes of these Guaranteeseach 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 6 Section 5.1 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 Guaranteeseach Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary nonpaying Guarantor so long as the exercise of such right does not impair the rights of the Holders under these the Guarantees.
(g) 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 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 or the Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment 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.
(h) 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.
(i) 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.
(j) Each payment to be made by a Guarantor in respect of its Guarantee shall be made without setoff, counterclaim, reduction or diminution of any kind or nature.
Appears in 2 contracts
Sources: Indenture (F&G Annuities & Life, Inc.), Indenture (Fidelity National Financial, Inc.)
Guarantees. Subject to the provisions of this Article 10, 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 this IndentureAgreement, the Notes or the other Obligations obligations of the Issuers Company hereunder or thereunder, that: (a) the principal of, of and premium and 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 or otherwise, and interest on the overdue principal of, premium of (and any premium) and interest (including Additional 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 Noteholders hereunder or the Trustee under this Indenture and the Notes thereunder shall be promptly paid in full or performed, all in accordance with the terms of this 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 this IndentureAgreement, 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 this 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 this IndentureAgreement. 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 6 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 6 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 10, 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 its successors and assigns, irrespective on behalf of the validity and enforceability of this Indentureeach Debtholder, the Notes punctual payment and performance when due of all Indenture Obligations which, for purposes of its Guarantee, shall also be deemed to include all commissions, fees, charges, costs and other expenses (including reasonable legal fees and disbursements of counsel) arising out of or incurred by the Indenture Trustee or the other Obligations Debtholders in connection with the enforcement of the Issuers hereunder or thereunder, that: (a) the principal of, premium any Guarantee 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, agrees to indemnify 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 this Indenture hold harmless each Debtholder and the Notes shall be promptly paid Indenture Trustee from all losses, 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 performedfully 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 foregoing, each Guarantor's liability shall extend to all in accordance with amounts that constitute part of the terms of Indenture Obligations and would be owed by Baytex to such Debtholder or the Indenture Trustee under the Debt Securities or this Indenture and but for the Notes; and fact that they are unenforceable, reduced, limited, suspended or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving Baytex.
(b) 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 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 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 under its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return 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 6 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 6 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 to the provisions of this Article 1012, 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 this 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 (including 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 (including Additional Interest, if any) 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 this Indenture and the Notes or under the Collateral Documents (including fees, expenses or other Obligations) shall be promptly paid in full or performed, all in accordance with the terms of this 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 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 this 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 Collateral 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 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 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 10, 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 this Indenture, complete payment and performance by 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 (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 this Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of 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 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 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 this 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 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 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 6 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 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 Guaranteesfull.
Appears in 2 contracts
Sources: Credit Agreement (Time Warner Inc), Credit Agreement (Time Warner Inc)
Guarantees. Subject to the provisions of this Article 10, 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 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 (including Additional Interestpremium, 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 (including Additional Interest, if any) 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 this Indenture and the Notes shall hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms of this 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 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 this 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 this IndentureIndenture 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 6 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 6 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. (a) Subject to the provisions of this Article 1013, 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 Trustee, the Collateral Agent and its their successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the other Obligations obligations of the Issuers Company hereunder or thereunder, that: :
(ai) the principal of, premium and interest (including Additional Interestpremium, if any) on , and interest 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 (including Additional 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 Holders, the Trustee or the Trustee under this Indenture and the Notes shall Collateral Agent hereunder or thereunder will be promptly paid in full in cash or performed, all in accordance with the terms of this 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 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 this 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. 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 Agent 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 under this Indenture. Article 13.
(c) If any Holder Holder, the Trustee or the Trustee Collateral Agent 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 Trustee, the Collateral Agent or such Holder, these Guaranteesthis Guarantee, to the extent theretofore discharged, shall will be reinstated in full force and effect. .
(d) Each Subsidiary Guarantor further unconditionally and irrevocably agrees that it shall not be entitled to (x) enforce or otherwise exercise any right of subrogation in relation or any right of reimbursement or contribution or similar right against the Company or any Guarantor by reason of any Note 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 Holders Company or any other Guarantor against obligations of such Guarantor to the Company or such other Guarantor. in respect of any Obligations guaranteed hereby each case, 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 TrusteeCollateral Agent, on the other hand, (x1) the maturity of the Obligations obligations guaranteed hereby may be accelerated as provided in Article 6 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 6 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 Agent 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 or other applicable 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 2 contracts
Sources: Indenture (Rockley Photonics Holdings LTD), Indenture (Rockley Photonics Holdings LTD)
Guarantees. Subject Article 15 of the Indenture shall apply to the provisions of this Article 10Notes. 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 and its successors and assigns, irrespective general principles of the validity and enforceability of this Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) the principal of, premium and interest equity (including Additional Intereststandards of materiality, if any) on the Notes shall be promptly paid in full when duegood faith, fair dealing and reasonableness), 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 (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 this Indenture and the Notes shall be promptly paid in full or performed, all enforceable against such subsidiary in accordance with the terms of 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 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 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 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 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 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 Guaranteesterms.
Appears in 2 contracts
Sources: Second Supplemental Indenture (Columbia Property Trust, Inc.), First Supplemental Indenture (Columbia Property Trust, Inc.)
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 10, 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 this Indenture, the Notes or the other Obligations money in respect 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 breach of the Issuers to the Holders or the Trustee under this Indenture and the Notes shall be promptly paid in full or performed, all Guaranteed Obligations in accordance with the terms of Section 11.1(a). Nothing contained in this Indenture Article 11 shall oblige Vale to carry out, discharge or perform, or procure the carrying-out, discharging or performance of, any other obligations of the Seller or the Project Owner to the Purchaser.
(f) Each Guarantor, as principal obligor and as a separate and independent obligation and liability from its obligations and liabilities under Section 11.1(a) or 11.1(b), 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 this Indentureany other Person, or any Transfer of all of or any part of the Seller, the absence 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 enforce the sameextent that this Agreement expressly provides for a release or replacement of the Guarantors from the Guaranteed Obligations in such circumstances;
(xi) any defence arising by reason of any failure of the Purchaser to make any presentment, demand for performance, notice of non-performance, protest or any other notice, including notice of acceptance of this Agreement, partial payment or non-payment of any Guaranteed Obligations or the existence, creation or incurring of new or additional Guaranteed Obligations;
(xii) any defence arising by reason of any failure of the Purchaser to proceed against the Seller, any waiver Guarantor or consent 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 Holder of the Notes with respect to Seller, any provisions of this Indenture and the NotesGuarantor, the recovery of Purchaser, or 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 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 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 6 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 6 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. Subject to the provisions of this Article 10, 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 this 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 (including Additional Intereston the Issue Date or, if any) on such Subsidiary is acquired or created after the Notes shall be promptly paid in full when dueIssue Date or such Subsidiary was an Excluded Subsidiary but thereafter is not an Excluded Subsidiary, whether 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 (including Additional Interest, if any) 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 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 this 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 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 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 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 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 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 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 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 GuaranteesGuarantee.
Appears in 2 contracts
Sources: Indenture (MGM Mirage), Indenture (MGM Mirage)
Guarantees. Subject to the provisions of this Article 10X, 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 this Indenture, the Notes or the other Obligations obligations of the Issuers Company hereunder or thereunder, that: (a) the principal of, premium and interest (including Additional Interestpremium, 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 and interest (including Additional Interestpremium, 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 this Indenture and the Notes shall hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms of this 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 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 this 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 this IndentureIndenture 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 6 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 6 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. (a) Subject to the provisions of this Article 1013, 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 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 (including Additional 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 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 (including Additional Interest, if any) 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 this Indenture and the Notes shall hereunder or thereunder will be promptly paid in full or and performed, all in accordance with the terms of this 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 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 this 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 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 6 hereof 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 6 hereofof 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 10, 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 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 this Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of 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 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 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 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 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 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. 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 10, 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 and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (ai) the principal of, premium full and interest (including Additional Interest, if any) 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 (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 this Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of 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 acceleration, by redemption or otherwise. Failing payment when so due , of any amount so guaranteed or any performance so guaranteed for whatever reason, all obligations of the Subsidiary Guarantors shall be jointly and severally obligated to pay Company under the same immediately. The Subsidiary Guarantors hereby agree that Indenture (including obligations 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 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 this Indenture Trustee) and the Notes, whether for payment of principal of, premium, if any, or interest on in respect of the recovery 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 judgment against the Issuers, any action to enforce the same or any other circumstance Guaranteed Obligation.
(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 Each 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 Guarantor waives notice of any right to require a proceeding first against default under the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be discharged except affected by complete performance (i) the failure of the obligations contained in the Notes and this 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 the Indenture, the Notes or any other agreement or otherwise; (ii) any extension or renewal of the Indenture, the Notes or any other agreement; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of the Indenture, the Notes or any other agreement; (iv) the failure of any Holder or Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (v) any change in the ownership of each Guarantor, except as provided in Section 6.02(b) or Section 6.02(c). Each Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Guarantors, such that such Guarantor’s obligations would be less than the full amount claimed.
(c) Each 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 court holder 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 Guaranteesto any security held for payment of the Guaranteed Obligations.
(e) The Guarantee of each Guarantor is, to the extent theretofore dischargedand in the manner set forth in Article 6, equal in right of payment to all existing and future pari passu Indebtedness, senior in right of payment to all existing and future subordinated Indebtedness of the Company and subordinated and subject in right of payment to the prior payment in full of the principal of and premium, if any, and interest on all secured Indebtedness of the relevant Guarantor and is made subject to such provisions of the Indenture.
(f) Except as expressly set forth in 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 reinstated 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 remain in full force and effecteffect until payment in full of all the Guaranteed Obligations. Each Subsidiary 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 maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to Holders and the Trustee.
(i) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all 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 6 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 6 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 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 Lead 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 10, 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 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 anyextent not so acquired), to the extent lawfulnot subsequently sold, transferred or otherwise disposed by the Lead Borrower or such Restricted Subsidiary during such period (each such Person, property, business or asset acquired and not subsequently so disposed of, 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 Lenders and the Administrative Agent. There shall be excluded in determining Consolidated EBITDA for any period the Disposed EBITDA of any Person, property, business or asset (other than an Unrestricted Subsidiary) sold, transferred or otherwise disposed of or, closed or classified as discontinued operations (but if such operations are classified as discontinued due to the Trustee fact that they are subject to an agreement to dispose of such operations, only when and to the extent such operations are actually disposed of) by the Lead Borrower or any Restricted Subsidiary 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 Indenture Agreement for any period that includes any of the fiscal quarters ended on December 31, 2018, March 31, 2019, June 30, 2019 and the Notes September 30, 2019 Consolidated EBITDA for such fiscal quarters shall be promptly paid $28,419,000, $36,219,000, $40,703,000 and $41,511,000, respectively, in full or performedeach case, all in accordance with the terms of 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 as may 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 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 this 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 this Indenture and acquisitions, dispositions or conversions occurring after 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 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 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 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 GuaranteesClosing Date.
Appears in 2 contracts
Sources: Credit Agreement (Bumble Inc.), Credit Agreement (Bumble Inc.)
Guarantees. Subject To the extent a Member guarantee is required by an institutional lender to the provisions Company, the Board of this Article 10, 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 Company'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 IndentureAgreement, 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 (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 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 (including Additional Interest, if any) 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 this Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of 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 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 this 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 the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return Foundry pursuant to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either Purchase Agreement and 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 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) which was described in the event of any declaration of acceleration of such Obligations as provided in Article 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 GuaranteesGuarantee Notice.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Integrated Silicon Solution Inc), Limited Liability Company Agreement (Altera Corp)
Guarantees. Subject to the provisions of this Article 10, 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 this 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 Additional Interestinterest accruing during the pendency of any bankruptcy, if anyinsolvency, 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 the overdue principal of(b) all other monetary obligations, premium including fees, costs, expenses and interest indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including Additional Interestmonetary obligations incurred during the pendency of any bankruptcy, if any) 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 all loan agreement or other Obligations of related operative documents governing the Issuers to Revenue Bonds (together, the Holders “Bond Documents”), whether such amounts shall have accrued prior to, on or after the Trustee under this Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms date of this Indenture and Guarantee (all the Notes; monetary obligations referred to in the 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 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 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 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 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 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 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 10, 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 this Indenture, the Notes or on an equal and pro rata basis. Any release by the other Obligations holders of the Issuers hereunder or thereunder, that: (aNotes under this Section 2.2(e) the principal of, premium and interest (including Additional Interest, if any) 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 (including Additional Interest, if any) 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 this Indenture and the Notes terms hereof shall be promptly paid in full or performed, all in accordance comply with the terms of this 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 this 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 this Indenture 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 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 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 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 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 1011, 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 this Indenture, the Notes or held thereby and the other Obligations of the Issuers hereunder or and thereunder, that: (a) the principal of, premium and interest (including Additional Interestpremium, 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 (including Additional Interest, if any) on the Notes, if any, to the extent lawful, and all other payment Obligations of the Issuers to the Holders or the Trustee under this Indenture and the Notes shall hereunder or thereunder will be promptly paid in full or and performed, all in accordance with the terms of this 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 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 this 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 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 6 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 6 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 10, 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 this Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) that 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, lawful and all other Obligations of the Issuers to the Holders or the Trustee under this Indenture and the Notes shall be promptly paid in full or performedfull, all in accordance with the terms of 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 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 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 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 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 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. (a) Subject to the provisions of this Article 10Section 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 this 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 (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 this Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of 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 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 this 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 this 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 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 shall be accelerated as provided in deemed to modify, reduce, release or otherwise affect the liability of the Borrowers under this Article 6 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 6 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. (a) Subject to the provisions of this Article 10Four, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees (each, 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 this Indenture, the Notes or the other Obligations obligations of the Issuers Company hereunder or thereunder, that: :
(a1) the principal of, premium and interest (including Additional Interestpremium, if any) , on, 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 and interest (including Additional Intereston, if any) on , and interest on, the Notes, if any, to the extent lawful, and all other Obligations obligations of the Issuers Company to the Holders or the Trustee under this Indenture and the Notes shall hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms of this Indenture hereof and the Notesthereof; and 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 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. 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 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 this 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 will not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. .
(c) 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 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 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 6 hereof Section 6.2 of the Base Indenture 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 6 hereofSection 6.2 of the Base Indenture, 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. 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 Guaranteesthe Guarantee.
Appears in 2 contracts
Sources: Supplemental Indenture (Tiffany & Co), Supplemental Indenture (Tiffany & Co)
Guarantees. Subject to the provisions of this Article 10Thirteen, 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 this Indenture, the Notes Securities or the other Obligations of the Issuers Company hereunder or thereunder, that: (a) the principal of, premium and interest (including Additional Interestpremium, if any) on , of, and 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 (including Additional Interest, if any) 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 this 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 this 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 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 this 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 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 6 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 6 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 1011, 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 this Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) the principal of, premium premium, interest and interest (including Additional InterestLiquidated 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 (including Additional InterestLiquidated 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 this Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of 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 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 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 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 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 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. Subject to (a) In consideration of good and valuable consideration, the provisions receipt and sufficiency of this Article 10which 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 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 and interest (including Additional Interest, 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 ; (including Additional Interest, if anyx) on the Notes, if any, to the extent lawful, and all other Obligations obligations of the Issuers to the Holders or the Trustee under this Indenture and or the Notes shall Securities will be promptly paid in full or performed, all in accordance with the terms of 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 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 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 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 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 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 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 (Ggri Inc)
Guarantees. (a) Subject to the provisions of this Article 1013, 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 Trustee, the Collateral Agent and its their successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the other Obligations obligations of the Issuers Company hereunder or thereunder, that: :
(ai) the principal of, premium and interest (including Additional Interestpremium, if any) on , and interest 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 (including Additional 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 Holders, the Trustee or the Trustee under this Indenture and the Notes shall Collateral Agent hereunder or thereunder will be promptly paid in full in cash or performed, all in accordance with the terms of this 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 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 this 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. 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 Agent 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 under this Indenture. Article 13.
(c) If any Holder Holder, the Trustee or the Trustee Collateral Agent 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 Trustee, the Collateral Agent or such Holder, these Guaranteesthis Guarantee, to the extent theretofore discharged, shall will be reinstated in full force and effect. .
(d) Each Subsidiary Guarantor further unconditionally and irrevocably agrees that it shall not be entitled to (x) enforce or otherwise exercise any right of subrogation in relation or any right of reimbursement or contribution or similar right against the Company or any Guarantor by reason of any Note 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 Holders Company or any other Guarantor against obligations of such Guarantor to the Company or such other Guarantor. in respect of any Obligations guaranteed hereby each case, 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 TrusteeCollateral Agent, on the other hand, (x1) the maturity of the Obligations obligations guaranteed hereby may be accelerated as provided in Article 6 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 6 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 Agent 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. The Subsidiary Guarantors 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 have the right be entitled to seek a contribution from any non-paying Subsidiary Guarantor so long each of the other Contributing Guarantors in an amount sufficient to cause each Contributing Guarantor’s Aggregate Payments to equal its Fair Share as the exercise of such right does not impair the rights date. “Fair Share” means, with respect to a Contributing Guarantor as of the Holders under these Guarantees.any date of determination, an
Appears in 1 contract
Sources: Third Supplemental Indenture (Rockley Photonics Holdings LTD)
Guarantees. Subject (a) The Guarantor hereby unconditionally and irrevocably guarantees to the provisions of this Article 10Administrative Agent, each 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 this Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: complete payment and performance by TWC as and when due (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 this Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of 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 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 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 this 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 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 remain in full force and effect. Each Subsidiary effect until the Obligations are paid in full.
(c) The 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 the Guarantor hereunder and under the other Credit Documents shall in no event exceed the amount which can be guaranteed by the Guarantor under applicable federal and state laws relating to the insolvency of debtors.
(e) No payment or payments made by the Borrower, any other guarantor or any other Person or received or collected by the Administrative Agent or any Lender from the Borrower, 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 6 hereof for deemed to modify, reduce, release or otherwise affect the purposes liability of these Guaranteesthe Guarantor hereunder who shall, notwithstanding any stay, injunction such payment or payments (other prohibition preventing such acceleration than payments made by the Guarantor in respect of the Obligations guaranteed herebyor payments received or collected from the Guarantor in respect of the Obligations), and (y) in the event of any declaration of acceleration of such Obligations as provided in Article 6 hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors remain liable for the purpose of these Guarantees. The Subsidiary Guarantors shall have Obligations, up to the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights maximum liability of the Holders under these GuaranteesGuarantor hereunder until the Obligations are paid in full.
Appears in 1 contract
Sources: Credit Agreement (Time Warner Inc)
Guarantees. Subject to the provisions of this Article 10, 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 assigns, irrespective of assigns the validity and enforceability of 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 prompt payment in full when due, due (whether at the maturity or interest payment or mandatory redemption datestated maturity, by acceleration, redemption acceleration or otherwise, ) of the principal of and interest on the overdue principal of, premium and interest (including Additional Interest, if any) on Loans made by 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 this Indenture 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 this Indenture the 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 this 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 Indenture Article 16 constitute a guarantee of payment and not merely of collection.
(c) In consideration of the 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 IMSA Assumption Date hereby guarantees to each Bank and the Issuers, any action to enforce Administrative Agent and their respective successors and assigns 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 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 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 6 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 6 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 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 10, 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 this Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) the principal benefit of, premium any and interest (including Additional Interest, if any) 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 (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 this 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 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 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 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 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 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 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 Guaranteesguaranty.
Appears in 1 contract
Sources: Lease Agreement (Wells Real Estate Investment Trust Inc)
Guarantees. Subject to the provisions of this Article 10, 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 this the Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) that 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, lawful and all other Obligations of the Issuers to the Holders or the Trustee under this the Indenture and the Notes shall be promptly paid in full or performedfull, all in accordance with the terms of this 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 this 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 this 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 this 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 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 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 10XII, 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 this Indenture, the Notes or the other Obligations obligations of the Issuers Company hereunder or thereunder, that: (a) the principal of, premium and interest (including Additional Interestpremium, 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 (including Additional 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 this Indenture and the Notes hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms of this 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 this 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 "BENEFITED PARTY"), as a condition of payment or performance by such Guarantor, to (i) proceed against the IssuersCompany, any other guarantor (including any other Guarantor) of the Obligations under the Guarantees or any other Person, (ii) proceed against or exhaust any security held from the Company, any such other guarantor or any other Person, (iii) proceed against or have resort to any balance of any deposit account or credit on the books of any Benefited Party in favor of the Company or any other Person, or (iv) pursue any other remedy in the power of any Benefited Party whatsoever; (b) any defense arising by reason of the incapacity, lack of authority or any disability or other defense of the Company including any defense based on or arising out of the lack of validity or the unenforceability of the Obligations under the Guarantees or any agreement or instrument relating thereto or by reason of the cessation of the liability of the Company from any cause other than payment in full of the Obligations under the Guarantees; (c) 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
(i) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms 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 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 6 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 6 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 1011, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees on a senior secured 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 this Indenture, the Notes or the other Obligations obligations of the Issuers hereunder or thereunder, that: (a) the principal of, premium of and interest (including Additional 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 of, premium of and interest (including Additional Interest, if any) on the Notes, if any, to the extent if lawful, and all other Obligations obligations of the Issuers to the Holders or the Trustee under this Indenture and the Notes shall hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms of this 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. 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 on a senior secured basis 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 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 this 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 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 Issuers, 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 this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary GuarantorsIssuers, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers 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 6 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 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 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.this
Appears in 1 contract
Guarantees. Subject to the provisions of this Article 10, 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 this Indenture, the Notes or held thereby and the other Obligations of the Issuers hereunder or and thereunder, that: (a) the principal of, premium and interest (including Additional Interestpremium, 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 (including Additional Interest, if any) 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 this Indenture and the Notes shall hereunder or thereunder will be promptly paid in full or and performed, all in accordance with the terms of this 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 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 this 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 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 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 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 10limitations 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 this Indenture, the Notes or the other Obligations obligations of the Issuers Issuer hereunder or thereunder, that: (a) the principal of, premium of and interest (including Additional Interestpremium, if any) , and 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 (including Additional Interest, if any) 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 this Indenture and the Notes Collateral Agent hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms of this 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 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 this 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 this 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 6 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 6 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 10, 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 this Indenture, the Notes or on an equal and pro rata basis. Any release by the other Obligations holders of the Issuers hereunder or thereunder, that: (aNotes under this Section 2.2(e) the principal of, premium and interest (including Additional Interest, if any) 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 (including Additional Interest, if any) 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 this Indenture and the Notes terms hereof shall be promptly paid in full or performed, all in accordance comply with the terms of this 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 this 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 this Indenture 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 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 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 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.STERIS CORPORATION NOTE PURCHASE AGREEMENT
Appears in 1 contract
Sources: Note Purchase Agreement (STERIS PLC)
Guarantees. Subject to the provisions of this Article 10, each of the Subsidiary Guarantors (a) Each Guarantor hereby, jointly and severally, fully, unconditionally and irrevocably guarantees the Notes and obligations of the Company 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 on behalf of the validity and enforceability of this Indenture, the Notes or the other Obligations of the Issuers hereunder or thereundersuch Holder, that: (ai) the principal of, premium all payments and interest (including Additional Interest, if any) on the Notes shall be promptly paid in full when due, whether at the maturity deliveries under 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 with respect to the Notes, including, but not limited to, payments of principal of (including, if anyapplicable, to the extent lawfulRedemption Price and the Fundamental Change Repurchase Price), payments of interest on, and payments of cash and/or deliveries of shares of Common Stock (together with payments of cash in lieu of fractional shares) due upon exchange of, the Notes, and the full and punctual performance within applicable grace periods of all other Obligations obligations of the Issuers Company, whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, to the Holders or the Trustee under this Indenture and the Notes hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms of this Indenture hereof and the Notesthereof; and (bii) in case of any extension of time of payment or renewal of any 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 Maturitythe Maturity Date, 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 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 this 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 .
(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 IssuersCompany, any right to require a proceeding first against the IssuersCompany 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 except by complete performance of the obligations contained in the Notes such Note and such Guarantee or as provided for in this Indenture. Each of the Guarantors hereby agrees that, in the event of a default in payments and deliveries under or with respect to the Notes (including, but not limited to, payments of principal of (including, if applicable, the Redemption Price and the Fundamental Change Repurchase Price), payments of interest on, and payments of cash and/or deliveries of shares of Common Stock (together with payments of cash in lieu of fractional shares) due upon exchange of the Notes), 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 such Guarantor’s Guarantee without first proceeding against the Company or any other Guarantor. Each Guarantor agrees that if, after the occurrence and during the continuance of an Event of Default, the Trustee 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 or any of the Holders.
(d) If any Holder or the Trustee is required by any court or otherwise to return to the Issuers Company or Subsidiary Guarantorsany 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 to the Trustee 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 13.01(d) shall remain effective notwithstanding any contrary action which may be taken by the Trustee or any Holder in reliance upon such amount required to be returned. This Section 13.01(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 and the Trustee, on the other hand, (x) the maturity of the Obligations obligations guaranteed hereby may be accelerated as provided in Article 6 hereof Section 6.02 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 obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations obligations as provided in Article 6 hereofSection 6.02, such Obligations 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
Guarantees. Subject to (i) In consideration of good and valuable consideration, the provisions receipt and sufficiency of this Article 10which is hereby acknowledged, each of the Subsidiary Additional 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 this the Indenture, the Notes Securities or the other Obligations obligations of the Issuers hereunder under the Indenture or thereunderthe Securities, that: (aw) the principal of, and premium (if any) of and interest (including Additional Interestand 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 ; (including Additional Interest, if anyx) on the Notes, if any, to the extent lawful, and all other Obligations obligations of the Issuers to the Holders or the Trustee under this the Indenture and or the Notes shall Securities will be promptly paid in full or performed, all in accordance with the terms of this Supplemental Indenture, the 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 Additional 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.
(ii) Each Additional 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 this 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 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 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 Additional 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 the 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 this the Indenture. .
(iii) If any Holder or the Trustee is required by any court or otherwise to return to either the Issuers or Subsidiary Guarantorsany Additional Guarantor, or any custodianCustodian, trusteeTrustee, liquidator or other similar official acting in relation to either the Issuers or Subsidiary Guarantorssuch Additional Guarantor, any amount paid by any of them either the Issuers or such Additional 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 Additional 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 Additional Guarantor further agrees that, as between the Subsidiary Guarantorssuch Additional 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 6 hereof Section 6.2 of the Indenture 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 6 hereofSection 6.2 of the Indenture, such Obligations those obligations (whether or not due and payable) shall will forthwith become due and payable by each of the Subsidiary Additional Guarantors for the purpose of these Guaranteesthis Guarantee.
(iv) Each Additional 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 Additional Guarantor set forth in Section 1.01(a)(i) 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 and such Additional Guarantor hereby irrevocably agree that the obligations of such Additional Guarantor under its guarantee set forth in Section 1.01(a)(i) shall have be limited to the right maximum amount as will, after giving effect to seek all other contingent and fixed liabilities of such Additional 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 1.01(a)(iv), result in the obligations of such Additional Guarantor under such guarantee not constituting such a fraudulent transfer or conveyance. Each Additional Guarantor that makes any payment or distribution under Section 1.01(a)(i) 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 Additional Guarantor means the percentage of the net assets of all Guarantors held by such Additional Guarantor, determined in accordance with GAAP.
Appears in 1 contract
Sources: Second Supplemental Indenture (Sun International Hotels LTD)
Guarantees. (a) Subject to the provisions of this Article 10Section 10.06 hereof, each of the Subsidiary Guarantors herebyGuarantors, 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 this Indenture, the Notes or held thereby and the other Obligations of the Issuers Company hereunder or and thereunder, that: :
(ai) the principal ofof and premium, premium interest and interest (including Additional InterestLiquidated Damages, 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 datematurity, by acceleration, redemption or otherwise, and interest on the overdue principal ofprincipal, premium premium, (to the extent permitted by law) interest and interest (including Additional Interest, if any) on the NotesLiquidated Damages, if any, to on the extent lawfulNotes, and all other Obligations of the Issuers Company to the Holders or the Trustee under this Indenture and the Notes shall hereunder or thereunder will be promptly paid in full or and performed, all in accordance with the terms of this Indenture hereof and the Notesthereof; and and
(bii) 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 Maturitystated maturity, by acceleration acceleration, redemption 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 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 Company. 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 unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of this 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 this Guarantee shall will not be discharged except by complete performance of the obligations Obligations contained in the Notes and this Indenture. .
(c) 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, 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 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 6 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 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 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 1 contract
Guarantees. Subject to the provisions of this Article 10, 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 its successors and assigns, irrespective on behalf of the validity and enforceability of this Indentureeach Debtholder, the Notes punctual payment and performance when due of all Indenture Obligations which, for purposes of its Guarantee, shall also be deemed to include all commissions, fees, charges, costs and other expenses (including reasonable legal fees and disbursements of counsel) arising out of or incurred by the Indenture Trustee or the other Obligations Debtholders in connection with the enforcement of the Issuers hereunder or thereunder, that: (a) the principal of, premium any Guarantee 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, agrees to indemnify 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 this Indenture hold harmless each Debtholder and the Notes shall be promptly paid Indenture Trustee from all losses, 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 performedfully 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 foregoing, each Guarantor’s liability shall extend to all in accordance with amounts that constitute part of the terms of Indenture Obligations and would be owed by the Trust to such Debtholder or the Indenture Trustee under the Debt Securities or this Indenture and but for the Notes; and fact that they are unenforceable, reduced, limited, suspended or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving the 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 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 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 under its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return 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 6 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 6 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. (a) Subject to the provisions of this Article 1011, 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 the Collateral Agent and their respective successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes Notes, the Collateral Documents or the other Obligations of the Issuers Company hereunder or thereunder, that: :
(a1) the principal of, premium and interest (including Additional Interestpremium, if any) on , 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 of and interest (including Additional Interest, if any) on the Notes, if any, to the extent if lawful, and all other Obligations of the Issuers Company to the Holders or the Trustee under this Indenture and the Notes shall Collateral Agent hereunder or thereunder or under any Collateral Document will be promptly paid in full or performed, all in accordance with the terms of this Indenture hereof and the Notesthereof; and and
(b2) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, 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. 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 Obligations hereunder shall be are unconditional, irrespective of the validity, regularity or enforceability of the Notes Notes, any Collateral Document or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of this 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 Note Guarantee shall will not be discharged except by complete performance of the obligations Obligations contained in the Notes and this Indenture. .
(c) If any Holder Holder, the Collateral Agent 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 Trustee, the Collateral Agent or such Holder, these Guaranteesthe Note 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 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 Holders, the Collateral Agent and the Trustee, on the other hand, (x1) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of these Guaranteesthis Note 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 6 hereof, such 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 Guaranteesthe Note Guarantee.
Appears in 1 contract
Sources: Indenture
Guarantees. (a) Subject to this Article 13, MagnaChip Semiconductor Ltd. (the “Korean Guarantor”) hereby unconditionally guarantees as a primary obligor and not as a surety to the Collateral Trustee and its respective successors and assigns, the prompt payment in full when due (whether at stated maturity, by required prepayment, declaration, demand, by acceleration or otherwise) of the principal of, premium and Liquidated Damages, if any, and interest (including any interest, fees, costs or charges that would accrue but for the provisions of this Article 10Title 11, each U.S. Code after any bankruptcy or insolvency petition under Title 11, U.S. Code) on the Notes or the obligations of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees Issuers hereunder or thereunder from time to time owing 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 this Indenture, the Notes or the other Obligations any 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 any of the Issuers to the Holders or the Trustee under this Indenture and the Notes shall be promptly paid Note Documents, in full or performed, all each case strictly in accordance with the terms thereof (such obligations being herein collectively called the “Korean Guarantor Guaranteed Obligations”). The Korean Guarantor hereby agrees that if either Issuer fails to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of this Indenture the Korean Guarantor Guaranteed Obligations, the Korean Guarantor will promptly pay to the Collateral Trustee the same in cash, 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 Korean Guarantor 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, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing .
(b) The obligations of the Korean Guarantor under Section 13.01(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 lawRequirements of Law, their obligations hereunder shall be are absolute, irrevocable and unconditional, irrespective of the value, genuineness, validity, regularity or enforceability of the Notes or this Indenture, the absence Korean Guarantor Guaranteed Obligations of either Issuer under any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of this Indenture and the NotesNote Documents, the recovery of any judgment against the Issuers, any action to enforce the same 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 Korean Guarantor 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 surety or guarantor (except for payment in full). Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of the following shall not alter or impair the liability of the Korean Guarantor hereunder which shall remain absolute, irrevocable and unconditional under any and all circumstances as described above:
(1) at any time or from time to time, without notice to the Korean Guarantor. To , the fullest extent permitted by applicable lawtime for any performance of or compliance with any of the Korean Guarantor Guaranteed Obligations shall be extended, each Subsidiary or such performance or compliance shall be waived;
(2) any of the acts mentioned in any of the provisions of this Article 13 or any of the Note Documents, or any other agreement or instrument referred to herein or therein shall be done or omitted;
(3) the maturity of any of the Korean Guarantor Guaranteed Obligations shall be accelerated, or any of the Korean Guarantor Guaranteed Obligations shall be amended in any respect, or any right under the Note 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 Korean Guarantor Guaranteed Obligations or any security therefor shall be released or exchanged in whole or in part or otherwise dealt with;
(4) any Lien or security interest granted to, or in favor of, the Collateral Trustee or any other Person as security for any of the Korean Guarantor Guaranteed Obligations shall fail to be perfected; or
(5) the release of any other Guarantor pursuant to Section 12.05 hereof.
(c) The Korean Guarantor hereby expressly waives diligence, presentment, demand of payment, filing protest and all notices whatsoever, and any requirement that any Holder of claims Notes exhaust any right, power or remedy or proceed against any Issuer under the Note Documents or any other agreement or instrument referred to therein, or against any other person under any other guarantee of, or security for, any of the Korean Guarantor Guaranteed Obligations. The Korean Guarantor waives any and all notice of the creation, renewal, extension, waiver, termination or accrual of any of the Korean Guarantor Guaranteed Obligations and notice of or proof of reliance by any Holder of Notes upon this Guarantee or acceptance of this Guarantee, and the Korean Guarantor 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 the Issuers and Holders of Notes 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 the Korean Guarantor Guaranteed Obligations at any time or from time to time held by Holders of Notes, and the obligations and liabilities of the Korean Guarantor hereunder shall not be conditioned or contingent upon the pursuit by the Holders of Notes or any other person at any time of any right or remedy against any Issuer or against any other person which may be or become liable in respect of all or any part of the Korean Guarantor Guaranteed Obligations or against any collateral security or guarantee therefor or right of offset with respect thereto. This Guarantee shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Korean Guarantor and the successors and assigns thereof, and shall inure to the benefit of the Holders of Notes, and their respective successors and assigns.
(d) The obligations of the Korean Guarantor under this Section 13.01 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any Issuer or other Guarantors in respect of the Korean Guarantor Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a court result of any proceedings in bankruptcy or reorganization or otherwise.
(e) The Korean Guarantor hereby agrees that until the indefeasible payment and satisfaction in full in cash of all Korean Guarantor Guaranteed Obligations it shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 13.01(a), whether by subrogation or otherwise, against any Issuer or any other guarantor of any of the Korean Guarantor Guaranteed Obligations or any security for any of the Korean Guarantor Guaranteed Obligations. Any Indebtedness of any of the Issuers or Guarantors permitted pursuant to Section 4.09 of hereof shall be subordinated to such Issuers or Guarantors’ Guaranteed Obligations in the manner required by the Indenture.
(f) The Korean Guarantor hereby acknowledges that the guarantee in this Section 13 constitutes an instrument for the payment of money, and consents and agrees that the Collateral Trustee, at its sole option, in the event of insolvency or bankruptcy a dispute by such Korean Guarantor in the payment of any moneys due hereunder, shall have the Issuers, any right to require bring a proceeding first against motion-action under New York CPLR Section 3213.
(g) The guarantee in this Article 13 is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising.
(h) Recovery under this Article 13 is limited to $500,000,000 of principal plus interest (including default interest) at 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 rates stated in the Notes and this Indenture. If , plus any Holder and all fees, expenses, indemnifications, breakage costs, taxes, Liquidated Damages, enforcement costs or the Trustee is required by any court or otherwise to return other amounts owing to the Issuers or Subsidiary Guarantorsholders of 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 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 6 hereof for the purposes of these Guarantees, notwithstanding Collateral Trustee or any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event Holder of any declaration Note pursuant to the terms of acceleration of such Obligations as provided in this Indenture, the Notes or this Article 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 Guarantees13.
Appears in 1 contract
Sources: Indenture (MagnaChip Semiconductor LTD (United Kingdom))
Guarantees. Subject to the provisions of this Article 10, 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 this Indenture, the Notes or the other Obligations obligations of the Issuers Company hereunder or thereunder, that: (a) the principal of, premium and interest (including Additional Interestpremium, 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 and interest (including Additional Interestpremium, 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 this Indenture and the Notes shall hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms of this 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 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 this 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 this IndentureIndenture 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 6 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 6 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. (a) Subject to the provisions of this Article 1013, 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 this Indenture, the Notes or the other Obligations obligations of the Issuers Company hereunder or thereunder, that: :
(ai) the principal of, premium and interest (including Additional Interestpremium, if any) on , and interest 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 (including Additional 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 Holders, the Trustee or the Collateral Trustee under this 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 this 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 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 this 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 under this Indenture. 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 6 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 6 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. The Subsidiary Guarantors 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 have the right be entitled to seek a contribution from any non-paying Subsidiary Guarantor so long each of the other Contributing Guarantors in an amount sufficient to cause each Contributing Guarantor’s Aggregate Payments to equal its Fair Share as the exercise of such right does not impair date. “Fair Share” means, with respect to a Contributing Guarantor as of any date of determination, an amount equal to (a) the rights ratio of (i) the Fair Share Contribution Amount with respect to such Contributing Guarantor, to (ii) the aggregate of the Holders 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 these Guarantees.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
Appears in 1 contract
Guarantees. Subject to the provisions of this Article 10, 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 this Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) the principal of, premium premium, interest 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 premium, interest and interest (including Additional Interest, 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 this Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of 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 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 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 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 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 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 1011, 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 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 (including Additional Interestand 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 (including Additional Interestand 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 this Indenture and the Notes shall hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms of this 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 Guarantor shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The 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 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 this 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 The 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 this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary GuarantorsCompany, the Guarantor or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers Company or Subsidiary Guarantorsthe 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 The 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 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 of the Obligations obligations guaranteed hereby may be accelerated as provided in Article 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 6 hereof, such Obligations obligations (whether or not due and payable) shall forthwith become due and payable by the 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 Note Guarantees.
Appears in 1 contract
Sources: Indenture (Condor Systems Inc)
Guarantees. Subject to the provisions of this Article 10, each Each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees guarantees, to each Holder Noteholder of a Note authenticated executed and delivered by the Trustee and to the Trustee and its successors and assignsCompany, irrespective of the validity and enforceability of this IndentureAgreement, the Notes or the other Obligations obligations of the Issuers Company hereunder or thereunder, that: (a) the principal of, of and 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 dateStated Maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium of (and any premium) and interest (including Additional 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 Noteholders hereunder or the Trustee under this Indenture and the Notes thereunder shall be promptly paid in full or performed, all in accordance with the terms of this 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 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 this IndentureAgreement, 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 this 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 this Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this IndentureAgreement. 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 to the Trustee or such HolderNoteholder, 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 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 6 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 6 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 1 contract
Sources: Purchase and Security Agreement (Brown Jordan International Inc)
Guarantees. Subject to the provisions of this Article 10Eleven, 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 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 (including Additional Interest, if any) 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 (including Additional Interest, if anyto the extent permitted by law) on the Notesinterest, if any, to on the extent lawful, Securities and all other Obligations of on the Issuers to the Holders or the Trustee under this Indenture and the Notes shall Securities will be promptly paid in full or performed, all in accordance with the terms of this 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 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 this 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 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 this Indenturethe Guarantee. 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 Eleven, the maturity of the Obligations obligations guaranteed hereby may be accelerated as provided in Article 6 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 6 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-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
Guarantees. Subject to the provisions of this Article 10, each of the Subsidiary Guarantors herebyEach Guarantor unconditionally guarantees, jointly with each other Guarantor and severally, unconditionally guarantees to each Holder of as a Note authenticated primary obligor and delivered by the Trustee and to the Trustee and its successors and assignsnot merely as a surety, irrespective of the validity and enforceability of this Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) the due and punctual payment by each Borrower (other than itself) of (i) the principal ofof and premium, premium if any, and interest (including Additional Interestinterest accruing during the pendency of any bankruptcy, if anyinsolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Notes shall be promptly paid in full Advances made to such Borrower, 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 the overdue principal of(ii) all other monetary obligations, premium including fees, costs, expenses and interest indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including Additional Interestmonetary obligations incurred during the pendency of any bankruptcy, if any) on the Notesinsolvency, if anyreceivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of such Borrower to the extent lawful, Administrative Agent and all other Obligations of each Lender under the Issuers to the Holders or the Trustee under this Indenture Credit Agreement and the Notes other Loan Documents (collectively, the “Guaranteed Parties”), whether such amounts shall be promptly paid in full have accrued prior to, on or performedafter the Closing Date, all in accordance with the terms of this Indenture and the Notes; and (b) the due and punctual payment and performance of all covenants, agreements, obligations and liabilities of each Borrower (other than itself), monetary or otherwise, under or pursuant to the Credit Agreement and the other Loan Documents, and (c) the due and punctual payment and performance of all obligations of each Borrower (other than itself), monetary or otherwise, under each Interest Rate Agreement in effect on the Closing Date to which any Lender (or an Affiliate of a Lender) is a party and each Interest Rate Agreement entered into after the Closing Date with any counterparty that is a Lender (or an Affiliate of a Lender) at the time such Interest Rate Agreement is entered into (all the monetary and other obligations referred to in the preceding clauses (a) through (c) being collectively called the “Obligations”). Anything contained in this Agreement to the contrary notwithstanding, the obligations of TRS and ROC 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 TRS and ROC 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 TRS and ROC, as the case may be, pursuant to (i) applicable law, or (ii) any agreement providing for an equitable allocation among TRS or ROC, as the case may be, and other Affiliates of Rayonier of obligations arising under Guarantees by such parties. Each Guarantor further agrees that the 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 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 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 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 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 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 GuaranteesObligation.
Appears in 1 contract
Sources: Credit Agreement (Rayonier Inc)
Guarantees. Subject The Guarantees have been duly and validly authorized by the Guarantors and, when issued and executed by the Guarantors, will have been duly executed, authenticated, issued and delivered and will constitute legal, valid and binding obligations of the Guarantors, entitled to the provisions of this Article 10, each benefit of the Subsidiary Indenture, and enforceable against the Guarantors herebyin accordance with its terms, jointly except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance, fraudulent transfer or other similar laws now or hereafter in effect relating to creditors’ rights generally and severally(ii) general principles of equity (whether applied by a court of law or equity) and the discretion of the court before which any proceeding therefor may be brought. When executed and delivered, unconditionally guarantees the Guarantees will conform in all material respects to each Holder the descriptions thereof in the Time of a Note authenticated Sale Document and delivered the Final Offering Memorandum. The Exchange Guarantees have been duly and validly authorized by the Trustee Guarantors and, when issued and to executed by the Trustee Guarantors and its successors upon the due execution and assigns, irrespective authentication of the validity and enforceability of this Indenture, the Exchange 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 this Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of this Indenture and the Notes; issuance and (b) delivery of the Exchange Notes in case the Exchange Offer contemplated by the Registration Rights Agreement, will have been duly executed, authenticated, issued and delivered and will constitute legal, valid and binding obligations of any extension the Guarantors, entitled to the benefit of time of payment or renewal of any Notes or any of such other Obligationsthe Indenture, that same shall be promptly paid in full when due or performed and enforceable against the Guarantors in accordance with its terms, except that the terms of the extension or renewal, enforcement thereof may be subject to any applicable grace period(i) bankruptcy, whether at Stated Maturityinsolvency, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reasonreorganization, 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 lawreceivership, their obligations hereunder shall be unconditionalmoratorium, irrespective of the validityfraudulent conveyance, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of 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 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 fraudulent transfer or other similar official acting laws now or hereafter in relation effect relating to either the Issuers creditors’ rights generally and (ii) general principles of equity (whether applied by a court of law 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, equity) and the Holders and the Trustee, on the other hand, (x) the maturity discretion of the Obligations guaranteed hereby court before which any proceeding therefor may be accelerated as provided in Article 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 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 Guaranteesbrought.
Appears in 1 contract
Sources: Purchase Agreement (BioScrip, Inc.)
Guarantees. Subject to the provisions of this Article 10, 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 of this Indentureforegoing, the Notes or the other Obligations each Guarantor’s liability shall extend to all amounts that constitute part of the Issuers hereunder or thereunder, that: (a) Indenture Obligations and would be owed by 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, 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 this 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 this 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 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 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 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 6 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 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 Guaranteesmatured.
Appears in 1 contract
Sources: Indenture (Baytex Energy LTD)
Guarantees. SECTION 1201. Guarantee. Subject to the provisions of this Article 10Twelve, each of to the Subsidiary Guarantors herebyextent provided pursuant to Section 301 hereof, jointly the Guarantor hereby fully and severallyunconditionally, 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 of, this Indenture, the Notes Securities or the other Obligations obligations of the Issuers Company hereunder or thereunder, that: (ai) the principal of, premium and interest (including Additional Interestpremium, if any) , and interest on the Notes Securities 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 (including Additional Interest, if any) on the Notespremium, if any, and interest on the Securities, if 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 this Indenture and the Notes hereunder or thereunder shall be promptly paid in full or performedfull, all in accordance with the terms of this Indenture hereof and the Notesthereof; and (bii) 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. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors Guarantor shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantor hereby agree that agrees that, to the fullest maximum extent permitted by under applicable law, their its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of this 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 the Guarantor. To Subject to Section 507, 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 this Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes Securities and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary GuarantorsCompany, the Guarantor or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers Company or Subsidiary Guarantorsthe Guarantor, any amount paid by any of them to the Trustee or such Holder, these Guaranteesthis Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary The 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 The Guarantor further agrees that, as between the Subsidiary GuarantorsGuarantor, 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 6 hereof Five 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 (yii) in the event of any declaration of acceleration of such Obligations obligations as provided in Article 6 Five hereof, such Obligations obligations (whether or not due and payable) shall forthwith become due and payable by the 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 Guaranteesthis Guarantee.
Appears in 1 contract
Guarantees. (a) Subject to the provisions of this Article 1013, 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 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 (including Additional 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 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 (including Additional Interest, if any) 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 this Indenture and the Notes shall hereunder or thereunder will be promptly paid in full or and performed, all in accordance with the terms of this 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 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 this 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 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 6 hereof 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 6 hereofof 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 (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 10, 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 this Indenture, the Notes or on an equal and pro rata basis. Any release by the other Obligations holders of the Issuers hereunder or thereunder, that: (aNotes under this Section 2.2(e) the principal of, premium and interest (including Additional Interest, if any) 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 (including Additional Interest, if any) 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 this Indenture and the Notes terms hereof shall be promptly paid in full or performed, all in accordance comply with the terms of this 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 this 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 this Indenture 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 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 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 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 Guaranteescustomary form.
Appears in 1 contract
Sources: Note Purchase Agreement (STERIS PLC)
Guarantees. (a) Subject to the provisions of this Article 10Articles 10 and 11, each of the Subsidiary Guarantors herebyGuarantors, jointly and severally, unconditionally hereby fully and unconditionally, on an unsecured basis, 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 this Indenture, the Notes or the other Obligations obligations of the Issuers Company hereunder or thereunder, that: :
(a1) the principal of, premium and interest (including Additional Interestpremium, if any) on , 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 and interest (including Additional Interest, if any) on the Notes, if any, to the extent lawful, and all other Obligations obligations of the Issuers Company to the Holders or the Trustee under this Indenture and the Notes hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms of this Indenture hereof and the Notesthereof; and 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 Maturitythe maturity of the Notes, 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 Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(b) Subject to Articles 10 and 11, the 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 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 this 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 will not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. .
(c) 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 will be reinstated in full force and effect. .
(d) Each Subsidiary Guarantor also agrees that it shall not be entitled to pay any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of and all Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, costs and the Holders and the Trustee, on the other hand, expenses (xincluding reasonable attorneys’ fees) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article 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 6 hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable incurred by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from Trustee or any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the Holder in enforcing any rights of the Holders under these Guaranteesthis Section 10.01.
Appears in 1 contract
Sources: Indenture (Liberty Global PLC)
Guarantees. Subject to the provisions of this Article 10, 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 this Indenture, the Notes or the other Obligations obligations of the Issuers Company hereunder or and thereunder, that: (a) the principal of, premium and interest (including Additional Interest, if anyor Accreted Value) 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 (including Additional Interest, if any) on of 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 this Indenture and the Notes shall hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms of this 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 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 this 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 that its Note Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the 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 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 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 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 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 10, 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 the Collateral Agent and their respective successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes Notes, the Security Documents or the other Obligations obligations of the Issuers Company hereunder or thereunder, that: (a) the principal of, premium of and interest (including Additional Interestpremium, if any) , and interest, including 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 dateStated Maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium of and interest (including Additional Interest, if any) on the Notespremium, if any, to the extent and interest, including Liquidated Damages, if any, if lawful, and all other Obligations obligations of the Issuers Company to the Holders Holders, the Trustee or the Trustee under this Indenture and the Notes Collateral Agent hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms of this 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 or otherwise. Failing payment when so due 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 Notes, this Indenture or this Indenturethe Security Documents, 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 this 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 Guarantees of the Notes shall not be discharged except by complete performance of the obligations contained in the Notes Notes, this Indenture and this Indenturethe Security Documents. If any Holder Holder, the Trustee or the Trustee Collateral Agent 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 Trustee, to the Collateral Agent or to such Holder, these Guaranteesthe Guarantees of 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 of Notes 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 6 hereof Seven for the purposes of these Guaranteesthe Guarantees of the Notes, 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 6 hereofSeven, such Obligations obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guaranteesthe Guarantees of the Notes. 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 Guaranteesthe Guarantees of the Notes.
Appears in 1 contract
Guarantees. Subject to the provisions of this Article 10, each of the Subsidiary Guarantors hereby, jointly Each Guarantor fully 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 this Indenture, the Notes or the other Obligations obligations of the Issuers Company hereunder or thereunder, that: (a) the principal of, premium of and interest (including Additional 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 of, premium of and interest (including Additional 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 this Indenture and the Notes shall hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms of this 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. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall such Guarantor will 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 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 this 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 Guarantee shall will not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers Company or Subsidiary the Guarantors, or any custodianCustodian, trusteeTrustee, liquidator or other similar official acting in relation to either the Issuers Company or Subsidiary the Guarantors, any amount paid by any of them such entity 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 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 6 hereof 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 (y) in the event of any declaration of acceleration of such Obligations obligations as provided in Article 6 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 the 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 the Guarantees.
Appears in 1 contract
Sources: Indenture (Desa Holdings Corp)
Guarantees. Subject to the provisions of this Article 10, 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 this 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 its Subsidiaries) remains liable for any guarantees (whether of payment or performance), letters of credit or other undertakings it has delivered prior to the Closing Date to others for the benefit of P Chem, the Company agrees to indemnify and hold harmless ▇▇▇▇▇▇▇▇ or such Affiliate of ▇▇▇▇▇▇▇▇ from any cost, expense or loss (including Additional Interestreasonable attorneys' fees) incurred by ▇▇▇▇▇▇▇▇ or such Affiliate of ▇▇▇▇▇▇▇▇ arising, if anydirectly 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 ▇▇▇▇▇▇▇▇) on the Notes shall be promptly paid in full when dueis entitled to indemnification hereunder. Any such guarantees, whether at the maturity letters of credit or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest other undertakings (including Additional Interest, if anyperformance guarantees) are set forth on the Notes, if any, to the extent lawful, and all other Obligations 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 this Indenture Company and its Subsidiaries) with respect to such guaranties, letters of credit or other undertakings from any of the Notes P Chem Liabilities; PROVIDED HOWEVER, that neither the Company nor its Subsidiaries shall be promptly paid incur any cost or expense in full causing or performed, all in accordance with the terms of this Indenture and the Notes; and 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 this 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 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 IssuersC Chem Liabilities; PROVIDED HOWEVER, that neither the Company nor its Subsidiaries shall incur 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 cost or expense in the Notes and this Indenture. If any Holder causing 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 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 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 Guaranteesrelease.
Appears in 1 contract
Guarantees. Subject to (a) In consideration of good and valuable consideration, the provisions receipt and sufficiency of this Article 10which 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 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 and interest (including Additional Interest, 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 ; (including Additional Interest, if anyx) on the Notes, if any, to the extent lawful, and all other Obligations obligations of the Issuers to the Holders or the Trustee under this Indenture and or the Notes shall Securities will be promptly paid in full or performed, all in accordance with the terms of 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 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 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 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 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 6 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 6 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 10XII, 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 this Indenture, the Notes or the other Obligations obligations of the Issuers Company hereunder or thereunder, that: (a) the principal of, premium and interest (including Additional Interestpremium, 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 (including Additional 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 this Indenture and the Notes hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms of this 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 this 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 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 6 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 6 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 10X, each of the Subsidiary Guarantors hereby, jointly and severally, 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 of the validity and enforceability of this Indenture, the such Notes or the other Obligations obligations of the Issuers Company hereunder or thereunder, that: (a) the principal of, premium and interest (including Additional Interestpremium, 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 and interest (including Additional Interest, if any) on the Notespremium, if any, to and interest on the extent Notes (at the applicable rate of interest) if any, if lawful, and all other Obligations obligations of the Issuers Company to the Holders or the Trustee under this Indenture and the Notes shall hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms of this Indenture hereof and the Notesthereof; and (b) in the case of any extension of time of payment or renewal of any such 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 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 this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the such Notes with respect to any provisions of this 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 and this IndentureIndenture or pursuant to Section 10.04 or 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 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 with respect to such Notes 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 6 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 6 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-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 (WEX Inc.)
Guarantees. Subject to the provisions of this Article 1011, 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 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 (including Additional Interestinterest, 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 Company to the Holders or the Trustee under this Indenture and the Notes hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms of this 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 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 this 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 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 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 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 10, 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 this Indenture, the Notes or the other Obligations obligations of the Issuers Issuer hereunder or thereunder, that: (a1) the principal ofprincipal, premium and interest (including Additional Interestpremium, 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 (including Additional Interest, if any) 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 this Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of this 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 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 this 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 6 hereof 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 6 hereofof 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 From and after the provisions of this Article 10Assumption 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 subject to the validity and enforceability of this 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 (including Additional Interestpremium, 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 Notes, when 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 interest (including Additional Interest, if any) on the Notes, if anyand, 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 this Indenture and the Notes shall be promptly paid in full or performedTrustee, all in accordance with the terms set forth in Article Ten of this 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 this 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 which this Indenture 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 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 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 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 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.Following Pages]
Appears in 1 contract
Sources: Indenture (Solutia Inc)
Guarantees. Subject to the provisions of this Article 1011, 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 this Indenture, the Notes or the other Obligations obligations of the Issuers Company hereunder or thereunder, that: (a) the principal ofand premium, premium if any, of and interest (including Additional 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 ofand premium, premium if any of and interest (including Additional 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 this Indenture and the Notes shall hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms of this 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 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 this 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 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 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 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 1 contract
Guarantees. Subject to the provisions of this Article 1011, 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 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 (including Additional Interestand 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 (including Additional Interestand 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 this Indenture and the Notes shall hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms of this 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 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 this 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 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 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 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 Companies and the provisions of this Article 10OPs agree that, each of unless an OP shall have theretofore reacquired its Preferred Units and paid the Subsidiary Guarantors herebyReacquisition Price as provided in Section 5.3 hereof, 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 this Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: such OP (a) will repay its Note entirely from 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 proceeds of the Issuers to the Holders or the Trustee under this Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of 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 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 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) new third party borrowings 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 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, will (x) the maturity if non-recourse obligations of such OP, be collateralized by first security interests in an amount of property with a fair market value of at least 150% of the Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect principal amount of the Obligations guaranteed herebyindebtedness being incurred, which first security interests must remain in effect on such collateral or substitute collateral of equivalent value to the collateral replaced for so long as such indebtedness shall remain outstanding, and (y) in have neither recourse against nor a guarantee from the event of any declaration of acceleration general partner of such Obligations as provided in Article 6 hereof, OP or a related party to the general partner of such Obligations OP such that the general partner or such related party would be deemed to bear the economic risk of loss of such borrowings within the meaning of Treasury Regulation Section 1.752-2 (whether or not due the "Refinancing Indebtedness") and payable(b) shall forthwith become due and payable by not repay any of the Subsidiary Guarantors for principal amount of such Refinancing Indebtedness unless either (x) after giving effect to such repayment, the purpose remaining principal amount of these Guarantees. The Subsidiary Guarantors such Refinancing Indebtedness shall not be less than the initial principal amount of such OP's Note and, if such Refinancing Indebtedness is non-recourse to such OP, the fair market value of the Partnership's assets securing such Refinancing Indebtedness shall be at least 150% of such remaining principal amount, or (y) it shall have the right made arrangements satisfactory to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise PCIC in its sole discretion for it to continue to extend Guarantees of other indebtedness of such right OP in an amount at least equal to the initial principal amount of such OP's Note. In connection with arranging such Refinancing Indebtedness, each OP will make the necessary arrangements to (a) permit PCIC, should it elect to do so in its discretion, to issue a Guarantee (in a form to be determined by PCIC provided that such form does not impair have adverse consequences to such OP, the rights Company that is a limited partner in such OP or the lenders under such Refinancing Indebtedness) as to the payment of an amount of such borrowings by such OP in an amount equal to the principal amount of the Holders Note issued by such OP, provided, that, if such Refinancing Indebtedness is of differing levels of seniority, the Guarantees shall guarantee the most senior indebtedness, and (b) to provide PCIC with sufficient notice to enable PCIC to elect to make such a Guarantee with effect from the time of the incurrence of such Refinancing Indebtedness. NCIC, PCIC and Management Company shall cooperate and use commercially reasonable efforts to assist the Companies and the OPs in promptly obtaining the Refinancing Indebtedness, including making available to potential lenders access to such information and personnel about the Companies and its properties as are under these Guaranteesthe control of NCIC, PCIC and Management Company.
Appears in 1 contract
Sources: Purchase and Contribution Agreement (Shelbourne Properties I Inc)
Guarantees. Subject to the provisions of this Article 10limitations 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 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 premium, if any, and interest, including Additional Interest, if any) on the Notes, if any, to the extent lawful, and all other Obligations obligations of the Issuers to the Holders or the Trustee under this Indenture and the Notes hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms of this 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 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 this 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 this 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 6 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 6 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 to the provisions of this Article Section 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 this Indenture, the Notes Agreement or the other Obligations of the Issuers hereunder or thereunderBorrower Obligations, that: :
(a) the principal of, premium and interest (including Additional Interest, if any) 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 (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 this Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of this 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 this 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 this 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 this 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 6 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 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 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 1011, 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 this the 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 this the Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of this 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 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 this 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 this 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 this 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 6 7 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 6 7 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 1 contract
Sources: First Supplemental Indenture (Atlas Energy Resources, LLC)
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 10such 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 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, 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 this 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 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 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 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 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 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 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 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 10such 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 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, 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 this 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 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 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 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 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 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 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 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 10limitations 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 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 premium, if any, and interest, including Additional Interest, if any) on the Notes, if any, to the extent lawful, and all other Obligations obligations of the Issuers Company to the Holders or the Trustee under this Indenture and the Notes hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms of this 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 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 this 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 this 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 6 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 6 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
Sources: Indenture (Thermon Holding Corp.)
Guarantees. Subject to the provisions of this Article 1012, 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 this Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) the principal of, and premium and interest (including 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 (including Additional Interest, if any) 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 this Indenture and the Notes or under the Collateral Documents (including fees, expenses or other Obligations) shall be promptly paid in full or performed, all in accordance with the terms of this 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 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 this 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 Collateral 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 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 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.
Appears in 1 contract
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 10, 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 this Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) the principal of, premium and interest (including Additional Interestrelated underlying obligations, if any) on ); provided that such termination is permitted under the Notes applicable contractual agreement; provided, further, that CBHS or its affiliates shall be promptly paid in full when due, whether at the maturity agree to such termination if permitted under such agreement or interest payment or mandatory redemption date, permitted by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest (including Additional Interest, if any) on the Notes, if anyany 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 or the Trustee under this Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of this Indenture and the Notes; and (bPurchase Agreement) in case of any extension of time of payment such indebtedness or renewal of any Notes obligation 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 Magellan Obligation (listed on Schedule 4.11 to the fullest extent permitted by applicable lawPurchase Agreement) is not fully and completely released on or before the closing under the Purchase Agreement, Crescent Operating will indemnify and hold harmless the Sellers and their obligations hereunder shall be unconditionalrespective affiliates and their successors and assigns from, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of this Indenture against 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 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 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 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 6 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.
Appears in 1 contract
Guarantees. Subject (a) The Borrower shall not, and shall procure that no other Group Company shall, issue or allow to remain outstanding any guarantees in respect of any liability or obligation of any person save for:
(i) with the prior written consent of the Bank; or
(ii) guarantees issued in the ordinary course of trade by any Group Company:
(1) under any Guarantee Agreement;
(2) under any negotiable instruments;
(3) in connection with any performance bond;
(4) in connection with the renting of premises in the ordinary course of business;
(5) in connection with any Permitted Indebtedness; or
(6) issued by one Obligor to another Obligor.
(b) The Borrower shall procure that, as soon as any Group Company becomes a Material Subsidiary (as identified in any accounts delivered to the provisions Bank from time to time pursuant to Paragraph 2 (Information concerning the Borrower) of this Article 10Schedule I (Information and Visits)), each that Group Company shall promptly notify the Bank and on the Bank’s request enter into a Guarantee Agreement and provide the Bank with (subject to the conditions precedent to be fulfilled for Cellectis, Inc. and Cellectis Biologics, Inc. pursuant to Schedule F (Conditions Precedent)):
(i) a certified copy of the resolution of the competent body (management board, supervisory board, board of directors and/or general meeting of shareholders) of such Material Subsidiary Guarantors herebyduly authorising the execution of such Guarantee Agreement and duly authorising the person or persons signing such Guarantee Agreement on behalf of such Material Subsidiary together with the specimen signature of each such person or persons;
(ii) evidence that such Material Subsidiary has obtained all necessary Authorisations required in connection with such Guarantee Agreement and, jointly and severallywhere applicable, unconditionally guarantees to each Holder any accession deed in respect of such Guarantee Agreement; and
(iii) a legal opinion of a Note authenticated and delivered by reputable law firm in the Trustee and jurisdiction of incorporation of such Material Subsidiary, addressed to the Trustee Bank on the valid existence of such Material Subsidiary, the authority and its successors capacity of such Material Subsidiary to enter into the Guarantee Agreement and assigns, irrespective on the due execution and choice of law of the Guarantee Agreement and on the validity and enforceability of this Indenturesaid guarantee under the Guarantee Agreement, each in form and substance satisfactory to the Bank and subject always to the applicable general statutory limitations, corporate benefit, thin capitalisation rules or similar principles which may require under mandatory law in the jurisdiction of incorporation of such Material Subsidiary that the guarantee be limited in amount or scope provided that the Borrower shall use reasonable endeavours to mitigate or overcome any such impediment, provided further that in such case, the Notes or Bank may request the other Obligations Borrower to grant a pledge over 100% 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 this Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of this Indenture and the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any shares 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 Material 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 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 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 instead 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 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 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 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 GuaranteesAgreement.
Appears in 1 contract
Sources: Finance Contract (Cellectis S.A.)
Guarantees. (a) Subject to the provisions of this Article 1013, 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 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 (including Additional Special 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 dateMaturity Date, by acceleration, redemption upon repurchase or otherwise, and interest interest, on the overdue principal of, premium of and interest (including Additional Interest, if any) on the Notes, if any, to the extent lawful, permitted by law) any Special Interest on the Notes and all other Obligations payment or delivery obligations of the Issuers Company to the Holders or the Trustee under this Indenture and the Notes shall hereunder or thereunder will be promptly paid in full or and performed, all in accordance with the terms of this 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 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 this 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 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 6 hereof 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 6 hereofof 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 10X, each of the Subsidiary Guarantors hereby, jointly and severally, irrevocably and unconditionally guarantees guarantees, on an 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 this Indenture, the Notes or the other Obligations obligations of the Issuers Company hereunder or thereunder, that: (a) the principal of, premium of and interest (including Additional Interestand premium, 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 redemption, repurchase or otherwise, and interest on the overdue principal of, premium of and interest (including Additional 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 this Indenture and the Notes hereunder or thereunder, including for expenses, indemnification or otherwise, shall be promptly paid in full or performedfull, all in accordance with the terms of this 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 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 immediatelypromptly. 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 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 this 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 that might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantorguarantor (other than payment in full of all of the obligations of the Company hereunder and under the Notes). 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 IssuersCompany, any right to require a proceeding first against the IssuersCompany, protest, notice and all demands whatsoever and covenants that its this Guarantee shall not be discharged except by complete performance full payment of the obligations contained in the Notes and this Indenture or by release in accordance with the provisions of this Indenture. Each Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01. 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 Guarantors, the Guarantors any amount paid by any of them either to such Holder or the Trustee or such HolderTrustee, these Guaranteesthen this Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Until terminated in accordance with Section 10.06 hereof, each 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 6 VI 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 6 VI 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 nonpaying Guarantor so long as the exercise of such right does not impair the rights of the Holders under these the Guarantees. 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 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 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. 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. 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 setoff, counterclaim, reduction or diminution of any kind or nature.
Appears in 1 contract
Sources: Indenture (Foot Locker, Inc.)
Guarantees. Subject to the provisions of this Article 10Section 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 this 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 (including any Additional Interest) on, if any) 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 interest on any accrued and unpaid cash interest, if any, and interest (including on any Additional Interest, if any) , on the NotesSecurities, if any, 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 this Indenture and the Notes thereunder shall be promptly paid in full or and performed, all in accordance with the terms of this 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 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 this 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 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 6 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 6 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.
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Sources: Indenture (Best Buy Co Inc)
Guarantees. Subject to the provisions of this Article 10, each of the Subsidiary Guarantors hereby, jointly and severally, 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 this Indenture, the Notes or held thereby and the other Obligations of the Issuers hereunder or and thereunder, that: (a) the principal of, premium and interest (including Additional Interestpremium, 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 (including Additional Interest, if any) on the Notes, if any, to the extent lawful, and all other payment Obligations of the Issuers to the Holders or the Trustee under this Indenture and the Notes shall hereunder or thereunder will be promptly paid in full or and performed, all in accordance with the terms of this 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 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 this 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 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 6 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 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 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.
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