Guarantees. (a) Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, to the extent lawful, and the Trustee, the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes and all other Obligations of the Issuer under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation. (b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations. (c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations. (d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity. (e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise. (f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding). (g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee. (h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section. (i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee. (j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 2 contracts
Sources: Indenture (Mattel Inc /De/), Indenture (Mattel Inc /De/)
Guarantees. (a) Subject to the provisions of this Article X10, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, severally with each other Guarantor, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety on a senior basis, to each Holder, to the extent lawful, and the Trustee, the Collateral Agent and their respective successors and assigns (i) the full and punctual payment when due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Issuer under this Indenture (including obligations to the Trustee) and the Securities, whether for payment of principal of, or premium, if any, and or interest on on, the Notes Securities and all other Obligations monetary obligations of the Issuer under this Indenture and the Notes Securities, and (includingii) the full and punctual performance within applicable grace periods of all other obligations of the Issuer, without limitationwhether for fees, interest accruing after the filing of any petition in bankruptcyexpenses, indemnification or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding otherwise under this Indenture and the obligations under Section 7.6) Securities (all the foregoing being hereinafter collectively called the “Guarantor Guaranteed Obligations”). .
(b) Each Guarantor further agrees that (to the extent lawfulpermitted by law) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it each such Guarantor shall remain bound under this Article X 10 notwithstanding any extension or renewal of any Guaranteed Obligation. The Guaranteed Obligations of a Guarantor Obligationwill be secured by security interests (subject to Permitted Liens) in the Notes Collateral owned by such Guarantor to the extent provided for in the Security Documents and as required pursuant to Sections 4.11 and 4.13.
(bc) Each Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuer of any of the Guarantor Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes Securities or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (i) the failure of any Holder, the Trustee or the Collateral Agent to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Securities, any Security Document, or any other agreement or otherwise; (ii) any extension or renewal of this Indenture, the Securities, any Security Document or any other agreement; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Securities, any Security Document or any other agreement; (iv) the release of any security held by any Holder, the Trustee or the Collateral Agent for the Guaranteed Obligations or any Guarantor; (v) the failure of any Holder, the Trustee or the Collateral Agent to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (vi) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
(cd) Each Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Guarantors, such that such Guarantor’s obligations would be less than the full amount claimed. Each Guarantor hereby waives any right to which it may be entitled to have the assets of the Issuer or any other Guarantor first be used and depleted as payment of the Issuer’s or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder. Each Guarantor hereby waives any right to which it may be entitled to require that the Issuer be sued prior to an action being initiated against such Guarantor.
(e) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee guarantee of collection) and waives any right to require that any resort be had by any Holder Holder, the Trustee or the Collateral Agent to any security held for payment of the Guarantor Guaranteed Obligations.
(df) Except as expressly set forth in Section 10.2 Sections 8.01 and Article VIII10.02, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder Holder, the Trustee or the Trustee Collateral Agent to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes Securities, any Security Document or any other agreement or otherwise; (b) agreement, by any extension or renewal of any thereof; (c) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenturethereof, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; obligations, or (h) by any other act or thing or omission or delay to do any other act or thing which that may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such any Guarantor as a matter of law or equity.
(eg) Each Except as expressly set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee Guaranteed Obligations. Except as expressly set forth in compliance with Section 4.1Sections 8.01 and 10.02, Section 10.2 and Article VIII. Each each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, principal of or interest on any of the Guarantor Obligations Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuer or otherwise.
(fh) In furtherance of the foregoing and not in limitation of any other right which that any Holder Holder, the Trustee or the Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay the principal of or interest on any of the Guarantor Obligations Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the TrusteeTrustee in accordance with this Indenture, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or the Trustee on behalf of the Holders Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guarantor Obligations then due and owing and Guaranteed Obligations, (ii) accrued and unpaid interest on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after iii) all other monetary obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating Issuer then due to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed Holders, the Trustee and the Collateral Agent in such proceeding)respect of the Guaranteed Obligations.
(gi) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between such Guarantorit, on the one hand, and the Holders, the Trustee and the Collateral Agent, on the other hand, (xi) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture Article 6 for the purposes of its any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Guaranteed Obligations guaranteed hereby hereby, and (yii) in the event of any such declaration of acceleration of such Guarantor ObligationsGuaranteed Obligations as provided in Article 6, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the such Guarantor for the purposes of this GuaranteeSection 10.01.
(hj) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable and documented attorneys’ feesfees and expenses) incurred by the Trustee Trustee, the Collateral Agent or the Holders any Holder in enforcing any rights under this SectionSection 10.01.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(jk) Each Guarantee Guarantor shall execute and deliver such further instruments and do such further acts as may be subject reasonably necessary or proper to limitations in accordance with local law in carry out more effectively the jurisdiction purpose of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable lawthis Indenture.
Appears in 2 contracts
Sources: Indenture (Egalet Us Inc.), Indenture (Egalet Corp)
Guarantees. (a) Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each HolderHolder of the Notes, to the extent lawful, and the Trustee, Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes and all other Obligations of the Issuer under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principalprincipal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither None of the Issuer nor or the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee of a Guarantor not organized under the laws of the United States, any state or territory thereof or the District of Columbia shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available Guarantor, in each case to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable lawextent applicable.
Appears in 2 contracts
Sources: Indenture (Allison Transmission Holdings Inc), Indenture (Allison Transmission Holdings Inc)
Guarantees. (a) Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, to the extent lawful, and the Trustee, the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal ofprincipal, premium, if any, and interest on the Notes and all other Obligations of the Issuer under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 2 contracts
Sources: Indenture (CommScope Holding Company, Inc.), Indenture (CommScope Holding Company, Inc.)
Guarantees. (a) Subject to Section 3.03 hereof, the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, on as a senior unsecured basis, as guarantor primary obligor and not merely as a surety, with each other Guarantor, to each Holder, to Holder of the extent lawful, Affected Notes and the Trustee, Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration, by redemption acceleration or otherwise, of all obligations of the Company under the Indenture (including obligations to the Trustee) and the Affected Notes, whether for payment of principal of, premium, if any, and or interest on the Affected Notes and all other Obligations monetary obligations of the Issuer Company under this the Indenture and the Affected Notes and (includingii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, without limitationexpenses, interest accruing after indemnification or otherwise under the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding Indenture and the obligations under Section 7.6) Affected Notes, on the terms set forth in the Indenture (all the foregoing being hereinafter collectively called the “Guarantor Guaranteed Obligations”). Each The Guarantor further agrees (to the extent lawful) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from itthe Guarantor, and that it the Guarantor shall remain bound under this Article X III notwithstanding any extension or renewal of any Guarantor Guaranteed Obligation.
(b) Each Subject to Section 3.03 hereof, the Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuer Company of any of the Guarantor Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each The Guarantor waives (to the extent lawful) notice of any default Default under the Affected Notes or the Guarantor Guaranteed Obligations.
(c) Each Subject to Section 3.03 hereof, the Guarantor further agrees that its Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guarantor Guaranteed Obligations.
(d) Except as expressly set forth in Section 10.2 and Article VIII3.02 or 3.03 hereof, the obligations of each the Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subject to Sections 3.02 and 3.03 hereof, the Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Guaranteed Obligations. Subject to Section 4.13.03 hereof, Section 10.2 and Article VIII. Each the Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time paymentpayment of, or any part thereof, principal of principal, premium, if any, or interest on any of the Guarantor Obligations Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuer Company or any of its Subsidiaries or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any the Guarantor by virtue hereof, but subject to Section 3.03 hereof, upon the failure of the Issuer Company to pay the principal of or interest on any of the Guarantor Obligations Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each or to perform or comply with any other Guaranteed Obligation, the 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guarantor Obligations then due and owing and Guaranteed Obligations, (ii) accrued and unpaid interest on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after iii) all other monetary obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating Company to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)Trustee.
(g) Each Subject to Section 3.03 hereof, the Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Trustee in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. The Guarantor further agrees that, as between such Guarantorit, on the one hand, and the HoldersTrustee, on the other hand, (xi) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Section 6.02 of the Original Indenture for the purposes of its any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Guaranteed Obligations guaranteed hereby hereby, and (yii) in the event of any such declaration of acceleration of such Guarantor ObligationsGuaranteed Obligations as provided in Section 6.02 of the Original Indenture, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this GuaranteeSection 3.01.
(h) Each Subject to Section 3.03 hereof, the Guarantor also agrees to pay any and all reasonable fees, costs and expenses (including reasonable and documented attorneys’ feesfees and expenses) incurred by the Trustee or the Holders any Holder in enforcing any rights under this SectionSection 3.01.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 2 contracts
Sources: Supplemental Indenture (Lazard Group LLC), Supplemental Indenture (Lazard, Inc.)
Guarantees. (a) Subject Ashland and each other Guarantor that guarantees the Notes pursuant to the provisions of this Article XIndenture, each Guarantor hereby jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, on as a senior unsecured basis, as guarantor primary obligor and not merely as a surety, with each other Guarantor, to each Holder, to the extent lawful, Holder and the Trustee, Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration, by redemption acceleration or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, and or interest on the Notes and all other Obligations monetary obligations of the Issuer Company under this Indenture and the Notes and (includingii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, without limitationexpenses, interest accruing after the filing of any petition in bankruptcy, indemnification or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding otherwise under this Indenture and the obligations under Section 7.6) Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guarantor Guaranteed Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it such Guarantor shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Guaranteed Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuer Company of any of the Guarantor Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default Default under the Notes or the Guarantor Guaranteed Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guarantor Guaranteed Obligations.
(d) Except as expressly set forth in Section 10.2 and Article VIII10.02, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIIIGuaranteed Obligations. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time paymentpayment of, or any part thereof, principal of principal, premium, if any, or interest on any of the Guarantor Obligations Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuer Company or any of its Subsidiaries or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer Company to pay the principal of or interest on any of the Guarantor Obligations 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guarantor Obligations then due and owing and Guaranteed Obligations, (ii) accrued and unpaid interest on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after iii) all other monetary obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating Company to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)Trustee.
(g) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Trustee in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between such Guarantorit, on the one hand, and the HoldersTrustee, on the other hand, (xi) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture Article VI for the purposes of its any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Guaranteed Obligations guaranteed hereby hereby, and (yii) in the event of any such declaration of acceleration of such Guarantor ObligationsGuaranteed Obligations as provided in Article VI, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the such Guarantor for the purposes of this GuaranteeSection 10.01.
(h) Each Guarantor also agrees to pay any and all reasonable fees, costs and expenses (including reasonable attorneys’ feesfees and expenses) incurred by the Trustee or the Holders any Holder in enforcing any rights under this SectionSection 10.01.
(i) Neither Each Guarantor shall promptly execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity purpose of any Guaranteethis Indenture.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 2 contracts
Sources: Indenture (Valvoline Inc), Indenture (Ashland Inc.)
Guarantees. (a) Subject to (i) Each of the provisions of this Article XSubsidiary Guarantors hereby, each Guarantor hereby jointly and severally, unconditionally and irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, guarantees to the extent lawfulAdministrative Agent, and for the Trustee, the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, ratable benefit of the principal of, premium, if any, Secured Parties the prompt and interest on the Notes complete payment and all other Obligations performance of the Issuer under this Indenture Obligations and (ii) the Notes (includingParent Guarantor hereby unconditionally and irrevocably, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating guarantees to the Issuer or any Guarantor whether or not a claim Administrative Agent, for post-filing or post-petition interest is allowed in such proceeding the ratable benefit of the Secured Parties the prompt and complete payment and performance of the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor European Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (Anything herein or in any other Loan Document to the extent lawful) presentation tocontrary notwithstanding, demand ofthe maximum liability of each Subsidiary Guarantor hereunder and under the other Loan Documents in respect of the Obligations, payment from shall in no event exceed the amount which can be guaranteed by such Guarantor under applicable federal and protest state laws relating to the Issuer insolvency of any of the Guarantor Obligations and also waives debtors (after giving effect to the extent lawful) notice right of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligationscontribution established in Section 2.2).
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (the Obligations, may at any time and not a Guarantee of collection) and waives any right from time to require that any resort be had by any Holder to any security held for payment time exceed the amount of the liability of such Guarantor Obligationshereunder without impairing the guarantees contained in this Section 2 or affecting the rights and remedies of the Administrative Agent or any other Secured Party hereunder.
(d) Except as set forth Each Guarantor’s guarantees contained in this Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein 2 shall remain in full force and effect until all the Obligations ( other than contingent indemnification and contingent expense reimbursement obligations, Obligations in respect of Secured Hedge Agreements and Cash Management Obligations) of each Guarantor under the guarantees contained in this Section 2 shall have been satisfied by payment in full full, the Commitments have been terminated and either no Letter of all Credit shall be outstanding or each outstanding Letter of Credit has been cash collateralized so that it is fully secured to the Guarantor Obligations reasonable satisfaction of the Administrative Agent, notwithstanding that from time to time during the term of the Credit Agreement any Loan Party may be free from any of the Obligations.
(e) Except as provided in Section 4.14, (i) no payment made by any of the Subsidiary Guarantors, any other guarantor or such Guarantor is released any other Person or received or collected by the Administrative Agent or any Secured Party from its Guarantee in compliance with Section 4.1any of the Subsidiary Guarantors, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective any other guarantor or be reinstated, as the case may be, if any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time paymentor from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of any Subsidiary Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by such Subsidiary Guarantor in respect of the Obligations or any part thereof, of principal, premium, if any, payment received or interest on any collected from such Subsidiary Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of such Subsidiary Guarantor hereunder until the Obligations are paid in full, the Commitments have been terminated, and either no Letters of Credit shall be outstanding or each outstanding Letter of Credit has been cash collateralized so that it is rescinded or must otherwise be restored by any Holder upon fully secured to the bankruptcy or reorganization reasonable satisfaction of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing Administrative Agent and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to no payment made by the extent not prohibited Parent Guarantor, any other guarantor or any other Person or received or collected by law) (including interest accruing after the filing Administrative Agent or any Secured Party from the Parent Guarantor, any other guarantor or any other Person by virtue of any petition in bankruptcy action or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether set-off or not a claim for post-filing appropriation or post-petition interest is allowed application at any time or from time to time in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity reduction of or in payment of the European Obligations shall be deemed to modify, reduce, release or otherwise affect the liability the Parent Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee hereinhereunder which shall, notwithstanding any stay, injunction or such payment (other prohibition preventing such acceleration than any payment made by the Parent Guarantor in respect of the European Obligations or any payment received or collected from the Parent Guarantor Obligations guaranteed hereby and (y) in respect of the event of any such declaration of acceleration of such Guarantor European Obligations), such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor remain liable for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition European Obligations up to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization maximum liability of the applicable Parent Guarantor and defenses generally available to guarantors hereunder until the European Obligations are paid in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable lawfull.
Appears in 2 contracts
Sources: Guarantee Agreement (Constellation Brands, Inc.), Restatement Agreement (Constellation Brands, Inc.)
Guarantees. (a) Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each HolderHolder of the Notes, to the extent lawful, and the Trustee, Trustee and the Agents the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes and all other Obligations of the Issuer under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principalprincipal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee Trustee, the Agents or the Holders in enforcing any rights under this Section.
(i) Neither None of the Issuer nor or the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee of a Guarantor not organized under the laws of the United States, any state or territory thereof or the District of Columbia shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available Guarantor, in each case to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable lawextent applicable.
Appears in 2 contracts
Sources: Indenture (Allison Transmission Holdings Inc), Indenture (Allison Transmission Holdings Inc)
Guarantees. (a) Subject to the provisions Each of this Article XAOL and Time Warner hereby, each Guarantor hereby jointly and severally, irrevocably, fully unconditionally and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, irrevocably guarantees to the extent lawfulAdministrative Agent, for the ratable benefit of the Lenders and the Trusteetheir respective successors, indorsees, transferees and assigns, the full prompt and punctual complete payment and performance by the Designated Borrowers when due, due (whether at the stated maturity, by acceleration, by redemption acceleration or otherwise, ) of the principal of, premium, if any, and interest on the Notes and all other Obligations of the Issuer under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (AOLTW hereby, jointly and severally, unconditionally and irrevocably guarantees to the extent lawful) presentation toAdministrative Agent, demand of, payment from and protest to for the Issuer of any ratable benefit of the Guarantor Lenders and their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by AOLTWFI when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor ObligationsAOLTWFI.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of TBS and TWCI hereby, jointly and severally, unconditionally and irrevocably guarantees to the Administrative Agent, for the ratable benefit of the Lenders and their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by Time Warner when due (whether at the stated maturity, by acceleration or otherwise) of its obligations and not a liabilities under this Guarantee of collection(the "Time Warner Obligations") and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligationsincluding under Section 2(a) hereof.
(d) Except as set forth This Guarantee shall remain in Section 10.2 full force and Article VIIIeffect until the Obligations are paid in full and the Commitments are terminated, the obligations of each Guarantor hereunder shall not be subject notwithstanding that from time to any reduction, limitation, impairment time prior thereto either one or termination for any reason (other than payment both of the Guarantor Obligations in full), including Designated Borrowers may be free from any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1whenever, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time paymenttime, or from time to time, it shall make any part thereofpayment to the Administrative Agent or any Lender on account of its liability hereunder, of principal, premium, if any, or interest on any of it will notify the Guarantor Obligations Administrative Agent and such Lender in writing that such payment is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwisemade under this Guarantee for such purpose.
(f) In furtherance of the foregoing and not Anything herein or in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereofCredit Document to the contrary notwithstanding, upon the failure maximum liability of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to hereunder and shall, upon receipt of written demand under the other Credit Documents shall in no event exceed the amount which can be guaranteed by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due under applicable federal and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding state laws relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed insolvency of debtors (after giving effect to the right of contribution established in such proceedingSection 3 hereof).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity No payment or payments made by either of the Designated Borrowers, any of the Guarantors, any other guarantor or any other Person or received or collected by the Administrative Agent or any Lender from either of the Designated Borrowers, any of the Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any setoff or appropriation or payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of any Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee hereinhereunder 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 or payments received or collected from such Guarantor in respect of the Obligations), remain liable for the Obligations guaranteed hereby and (y) and, in the event case of any such declaration of acceleration TBS and TWCI, the Time Warner Obligations, up to the maximum liability of such Guarantor Obligations, such Guarantor hereunder until the Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders are paid in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees full and the Security Interests” and (iii) other considerations under applicable lawCommitments are terminated.
Appears in 2 contracts
Sources: Credit Agreement (Aol Time Warner Inc), Credit Agreement (Aol Time Warner Inc)
Guarantees. (a) Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully unconditionally and unconditionally irrevocably guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each HolderHolder of the Notes, to the extent lawful, and the Trustee, Trustee the performance and full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes and all other Obligations obligations of the Issuer under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principalprincipal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 2 contracts
Sources: Indenture (CommScope Holding Company, Inc.), Indenture (CommScope Holding Company, Inc.)
Guarantees. (a) Subject to the provisions of this Article X, each Each Guarantor hereby jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, guarantees on a senior an unsecured basis, as guarantor a primary obligor and not merely as a surety, with each other Guarantor, to each Holder, to the extent lawful, Holder and the Trustee, Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration, by redemption acceleration or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, and or interest on on, if any, the Notes and all other Obligations monetary obligations of the Issuer Company under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, in each case on the terms set forth in this Indenture including, without limitationlimitation Section 10.02 hereof, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) by executing this Indenture (all the foregoing being hereinafter collectively called the “Guarantor Guaranteed Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it each such Guarantor shall remain bound under this Article X 10 notwithstanding any extension or renewal of any Guarantor Guaranteed Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuer Company of any of the Guarantor Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Guaranteed Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guarantor Guaranteed Obligations.
(d) Except as expressly set forth in Section 10.2 Sections 8.01(b), 10.02 and Article VIII10.06, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subject to Section 10.02 hereof, each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIIIGuaranteed Obligations. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, principal of or interest on any of the Guarantor Obligations Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuer Company or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer Company to pay the principal of or interest on any of the Guarantor Obligations 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guarantor Obligations then due and owing and Guaranteed Obligations, (ii) accrued and unpaid interest on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after iii) all other monetary obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating Company to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)Trustee.
(g) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Trustee in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between such Guarantorit, on the one hand, and the HoldersTrustee, on the other hand, (xi) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture Article 6 for the purposes of its any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Guaranteed Obligations guaranteed hereby hereby, and (yii) in the event of any such declaration of acceleration of such Guarantor ObligationsGuaranteed Obligations as provided in Article 6, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the such Guarantor for the purposes of this GuaranteeSection 10.01.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ feesfees and expenses) incurred by the Trustee or the Holders any Holder in enforcing any rights under this SectionSection 10.01. Each Guarantor shall promptly execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 2 contracts
Guarantees. (a) Subject to the provisions of this Article X, each Each Guarantor hereby jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, guarantees on a senior unsecured secured basis, as guarantor a primary obligor and not merely as a surety, with each other Guarantor, to each Holder, to the extent lawful, Holder and the Trustee, Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration, by redemption acceleration or otherwise, of all obligations of the Issuers under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, and or interest on on, if any, the Notes and all other Obligations monetary obligations of the Issuer Issuers under this Indenture and the Notes and (includingii) the full and punctual performance within applicable grace periods of all other obligations of the Issuers whether for fees, without limitationexpenses, interest accruing after the filing of any petition in bankruptcy, indemnification or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding otherwise under this Indenture and the obligations under Section 7.6) Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guarantor Guaranteed Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it each such Guarantor shall remain bound under this Article X 10 notwithstanding any extension or renewal of any Guarantor Guaranteed Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuer Issuers of any of the Guarantor Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Guaranteed Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guarantor Guaranteed Obligations.
(d) Except as expressly set forth in Section 10.2 Sections 8.01(b), 10.02 and Article VIII10.06, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subject to Section 10.02 hereof, each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIIIGuaranteed Obligations. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, principal of or interest on any of the Guarantor Obligations Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuer Company or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer Issuers to pay the principal of or interest on any of the Guarantor Obligations 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 Trustee (or the Trustee on behalf of the Holders its designee) an amount equal to the sum of (i) the unpaid principal amount of such Guarantor Obligations then due and owing and Guaranteed Obligations, (ii) accrued and unpaid interest on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after iii) all other monetary obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating Issuers to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)Trustee.
(g) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Trustee in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between such Guarantorit, on the one hand, and the HoldersTrustee, on the other hand, (xi) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture Article 6 for the purposes of its any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Guaranteed Obligations guaranteed hereby hereby, and (yii) in the event of any such declaration of acceleration of such Guarantor ObligationsGuaranteed Obligations as provided in Article 6, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the such Guarantor for the purposes of this GuaranteeSection 10.01.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ feesfees and expenses) incurred by the Trustee or the Holders any Holder in enforcing any rights under this SectionSection 10.01. Each Guarantor shall promptly execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 2 contracts
Guarantees. (a) Subject Each Guarantor that is a party hereto or that executes and delivers a supplemental indenture pursuant to the provisions this Indenture shall, upon execution and delivery of this Article Xsuch supplemental indenture, each Guarantor hereby fully, unconditionally and irrevocably guarantee, jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor primary obligor and not merely as a surety, with each other Guarantor, to each Holder, Holder of the Notes and to the extent lawful, and the Trustee, Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, of (and premium, if any) and interest, and interest if any, on the Notes and all other Obligations obligations of the Issuer under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating “Note Obligations”) to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding Trustee and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”)Holders. Each Guarantor further agrees (to the extent lawfulpermitted by law) that the Guarantor Note Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Note Obligation.
(b) Each Guarantor of the Guarantors waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuer of any of the Guarantor Note Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor of the Guarantors waives (to the extent lawful) notice of any default under the Notes or the Guarantor Note Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the . The obligations of each Guarantor of the Guarantors hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a1) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; , (b2) any extension or renewal of any thereof; , (c3) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; , (d4) the release of any security held by any Holder or the Trustee for the Guarantor Note Obligations or any of them; them or (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f5) any change in the ownership of the Issuer; .
(gc) Each of the Guarantors further agrees that its Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Note Obligations.
(d) The obligations of each of the Guarantors hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Note Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Note Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each of the Guarantors herein shall not be discharged or impaired or otherwise affected by the failure of any Holder to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Guarantor Note Obligations; , or (h) by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor each of the Guarantors or would otherwise operate as a discharge of such Guarantor the Guarantors as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor Guarantors further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principalprincipal of, premium, if any, or interest interest, if any, on any of the Guarantor Note Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor of the Guarantors by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Note Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor of the Guarantors hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Note Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Note Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor of the Guarantors further agrees that, as between such Guarantoritself, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Note Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Note Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Note Obligations, such Guarantor Note Obligations (whether or not due and payable) shall forthwith become due and payable by the such Guarantor for the purposes of this Guarantee.
(h) Each Guarantor of the Guarantors also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ feesfees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this SectionSection 10.2.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 2 contracts
Sources: Indenture (Hess Midstream LP), Indenture (Hess Midstream LP)
Guarantees. (a) Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each HolderHolder of the Notes, to the extent lawful, and the Trustee, Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes and all other Obligations of the Issuer under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer Issuer, or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII, as applicable. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principalprincipal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this SectionSection 10.1.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 2 contracts
Sources: Indenture (Booz Allen Hamilton Holding Corp), Indenture (Booz Allen Hamilton Holding Corp)
Guarantees. (a) Subject to On and after the provisions of this Article XAcquisition Date, each Guarantor hereby jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, Holder and to the extent lawful, Trustee and the Trustee, its successors and assigns (i) the full and punctual payment when due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Issuers under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, and or interest on in respect of the Notes and all other Obligations monetary obligations of the Issuer Issuers under this Indenture and the Notes and (includingii) the full and punctual performance within applicable grace periods of all other obligations of the Issuers whether for fees, without limitationexpenses, interest accruing after the filing of any petition in bankruptcy, indemnification or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding otherwise under this Indenture and the obligations under Section 7.6) Notes (all the foregoing being hereinafter collectively called the “Guarantor Guaranteed Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it each such Guarantor shall remain bound under this Article X 10 notwithstanding any extension or renewal of any Guaranteed Obligation. The Guaranteed Obligations of a Guarantor Obligationwill be secured by security interests in the Collateral owned by such Guarantor to the extent provided for in the Security Documents and as required pursuant to Sections 4.12 and 4.15.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuer Issuers of any of the Guarantor Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (i) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuers or any other Person under this Indenture, the Notes, any Security Document, or any other agreement or otherwise; (ii) any extension or renewal of this Indenture, the Notes, any Security Document or any other agreement; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes, any Security Document or any other agreement; (iv) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any Guarantor; (v) the failure of any Holder or Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (vi) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
(c) Each Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Guarantors, such that such Guarantor’s obligations would be less than the full amount claimed. Each Guarantor hereby waives any right to which it may be entitled to have the assets of the Issuers or any other Guarantor first be used and depleted as payment of the Issuers’ or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder. Each Guarantor hereby waives any right to which it may be entitled to require that the Issuers be sued prior to an action being initiated against such Guarantor.
(d) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guarantor Guaranteed Obligations.
(de) Except as expressly set forth in Section 10.2 Sections 8.01(b), 10.02 and Article VIII10.06, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes Notes, any Security Document or any other agreement or otherwise; (b) agreement, by any extension or renewal of any thereof; (c) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenturethereof, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; obligations, or (h) 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 such any Guarantor as a matter of law or equity.
(ef) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIIIGuaranteed Obligations. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, principal of or interest on any of the Guarantor Obligations Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuer Issuers or otherwise.
(fg) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer Issuers to pay the principal of or interest on any of the Guarantor Obligations 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 Trustee Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guarantor Obligations then due and owing and Guaranteed Obligations, (ii) accrued and unpaid interest on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after iii) all other monetary obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating Issuers to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)Holders and the Trustee.
(gh) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between such Guarantorit, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (xi) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture Article 6 for the purposes of its any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Guaranteed Obligations guaranteed hereby hereby, and (yii) in the event of any such declaration of acceleration of such Guarantor ObligationsGuaranteed Obligations as provided in Article 6, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the such Guarantor for the purposes of this GuaranteeSection 10.01.
(hi) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ feesfees and expenses) incurred by the Trustee or the Holders any Holder in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any GuaranteeSection 10.01.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization Upon request of the applicable Trustee, each Guarantor shall execute and defenses generally available deliver such further instruments and do such further acts as may be reasonably necessary or proper to guarantors in such jurisdiction. For carry out more effectively the avoidance purpose of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable lawthis Indenture.
Appears in 1 contract
Sources: Indenture (Borden Chemical Inc)
Guarantees. (a) Subject to the provisions of this Article X, each Each Guarantor hereby irrevocably and unconditionally guarantees, jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, to the extent lawful, Lender and the Trustee, Collateral Agent and their respective successors and assigns the full and punctual payment when dueof all Obligations under this Agreement, whether at maturitythe Loan Documents and the Notes, by accelerationincluding, by redemption or otherwisewithout limitation, of the principal of, premium, if any, and interest on the Company Notes when due, whether at Stated Maturity, by acceleration or otherwise, and all other Obligations obligations of the Issuer Company under this Indenture Agreement and the Company Notes (and the Company and each Guarantor hereby irrevocably and unconditionally guarantees, jointly and severally, to the Lender and the Collateral Agent and their respective successors and assigns the full and punctual payment of all Obligations under this Agreement, the Loan Documents and the Notes, including, without limitation, principal of, premium, if any, and interest accruing after on the filing MSXI Limited Notes when due, whether at Stated Maturity, by acceleration or otherwise, and all other obligations of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding MXSI Limited under this Agreement and the obligations under Section 7.6) MSXI Limited Notes (all the foregoing being hereinafter collectively called the “Guarantor "Guaranteed Obligations”"). Each Guarantor further agrees (to the extent lawful) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, such Guarantor and that it shall such Guarantor will remain bound under this Article X 8 notwithstanding any extension or renewal of any Guarantor Guaranteed Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer Company and MSXI Limited of any of the Guarantor Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Guaranteed Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the . The obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder the Lender or the Trustee Collateral Agent to assert any claim or demand or to enforce any right or remedy against the Issuer Company or any other Person under this IndentureAgreement, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this IndentureAgreement, the Notes or any other agreement; (d) the release of any security held by any Holder the Lender for the Guarantor Guaranteed Obligations or any of them; (e) the failure of any Holder the Lender or the Collateral Agent to exercise any right or remedy against any other Guarantorguarantor of the Guaranteed Obligations; or (f) any change in the ownership of such Guarantor.
(c) Each Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by the Issuer; Lender to any security held for payment of the Guaranteed Obligations.
(gd) Except as expressly set forth in Section 8.2 and 8.6, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of the Lender or the Collateral Agent to assert any claim or demand or to enforce any remedy under this Agreement, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Guarantor Guaranteed Obligations; , or (h) by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any such Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Subsidiary Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principalprincipal of, premium, if any, or interest on any of the Guarantor Obligations Guaranteed Obligation is rescinded or must otherwise be restored by any Holder the Lender or the Collateral Agent upon the bankruptcy or reorganization of the Issuer Company or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder the Lender or the Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer Company to pay the principal of, premium, if any, or interest on any of the Guarantor Obligations Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shallwill, upon receipt of written demand by the TrusteeLender, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders Lender an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and Guaranteed Obligations, (ii) accrued and unpaid interest on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) and (including interest accruing after iii) all other monetary Guaranteed Obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating Company to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)Lender.
(g) Each Guarantor agrees that it shall not be entitled to any right of subrogation in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between such Guarantorit, on the one hand, and the HoldersLender, on the other hand, (x) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture Article 7 for the purposes of its such Guarantor's Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby hereby, and (y) in the event of any such declaration of acceleration of such Guarantor ObligationsObligations as provided in Article 7, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the such Guarantor for the purposes of this GuaranteeSection 8.1.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ ' fees) incurred by the Trustee or the Holders Lender in enforcing any rights under this SectionSection 8.1.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Sources: Third Secured Term Loan Agreement (MSX International Inc)
Guarantees. (a) Subject to On and after the provisions of this Article XIssue Date (following the Issuers’ Assumption), each Guarantor hereby jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, Holder and to the extent lawful, Trustee and the Trustee, its successors and assigns (i) the full and punctual payment when due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Issuers under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, and or interest on in respect of the Notes and all other Obligations monetary obligations of the Issuer Issuers under this Indenture and the Notes and (includingii) the full and punctual performance within applicable grace periods of all other obligations of the Issuers whether for fees, without limitationexpenses, interest accruing after the filing of any petition in bankruptcy, indemnification or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding otherwise under this Indenture and the obligations under Section 7.6) Notes (all the foregoing being hereinafter collectively called the “Guarantor Guaranteed Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it each such Guarantor shall remain bound under this Article X 10 notwithstanding any extension or renewal of any Guaranteed Obligation. The Guaranteed Obligations of a Guarantor Obligationwill be secured by security interests in the Collateral owned by such Guarantor to the extent provided for in the Security Documents and as required pursuant to Sections 4.12 and 4.15.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuer Issuers of any of the Guarantor Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.Guaranteed
Appears in 1 contract
Guarantees. (a) Subject to the provisions of this Article X10, each Guarantor hereby jointly and severally, irrevocably, fully severally with each other Guarantor irrevocably and unconditionally guarantees, guarantees as a primary obligor and not merely as a surety on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, basis to each Holder, to the extent lawful, and the Trustee, the Collateral Agent and their respective successors and assigns (i) the full and punctual payment when due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, of all Obligations of the Issuer under this Indenture (including obligations to the Trustee) and the Securities, whether for payment of principal of, premiumor premium or interest on, if any, and interest on the Notes Securities and all other Obligations monetary obligations of the Issuer under this Indenture and the Notes Securities, and (includingii) the full and punctual performance within applicable grace periods of all other obligations of the Issuer, without limitationwhether for fees, interest accruing after the filing of any petition in bankruptcyexpenses, indemnification or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding otherwise under this Indenture and the obligations under Section 7.6) Securities, on the terms set forth in this Indenture by becoming a party to this Indenture (all the foregoing being hereinafter collectively called the “Guarantor Guaranteed Obligations”). .
(b) Each Guarantor further agrees that (to the extent lawfulpermitted by law) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it each such Guarantor shall remain bound under this Article X 10 notwithstanding any extension or renewal of any Guaranteed Obligation. The Guaranteed Obligations of a Guarantor Obligationwill be secured by security interests (subject to Permitted Liens) in the Notes Collateral owned by such Guarantor to the extent provided for in the Security Documents and as required pursuant to Sections 4.11 and 4.13.
(bc) Each Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuer of any of the Guarantor Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes Securities or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (i) the failure of any Holder, the Trustee or the Collateral Agent to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Securities, any Security Document, or any other agreement or otherwise; (ii) any extension or renewal of this Indenture, the Securities, any Security Document or any other agreement; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Securities, any Security Document or any other agreement; (iv) the release of any security held by any Holder, the Trustee or the Collateral Agent for the Guaranteed Obligations or any Guarantor; (v) the failure of any Holder, the Trustee or the Collateral Agent to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (vi) any change in the ownership of such Guarantor, except as provided in Section 10.03.
(cd) Each Guarantor hereby waives any right to which it may be entitled to (i) have its obligations hereunder divided among the Guarantors, such that such Guarantor’s obligations would be less than the full amount claimed, (ii) have the assets of the Issuer or any other Guarantor first be used and depleted as payment of the Issuer’s or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder and (iii) require that the Issuer be sued prior to an action being initiated against such Guarantor.
(e) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee guarantee of collection) and waives any right to require that any resort be had by any Holder Holder, the Trustee or the Collateral Agent to any security held for payment of the Guarantor Guaranteed Obligations.
(df) Except as expressly set forth in Section 10.2 Sections 8.01, 10.02, 10.03 and Article VIII10.06, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (ai) the failure of any Holder Holder, the Trustee or the Trustee Collateral Agent to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes Securities, any Security Document or any other agreement or otherwise; agreement, (bii) any extension or renewal of any thereof; (c) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenturethereof, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (giii) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; obligations or (hiv) any other act or thing or omission or delay to do any other act or thing which that may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such any Guarantor as a matter of law or equity.
(eg) Each Except as expressly set forth in Sections 8.01 and 10.03, each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee Guaranteed Obligations. Except as expressly set forth in compliance with Section 4.1Sections 8.01 and 10.03, Section 10.2 and Article VIII. Each each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, principal of or interest on any of the Guarantor Obligations Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuer or otherwise.
(fh) In furtherance of the foregoing and not in limitation of any other right which that any Holder Holder, the Trustee or the Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay the principal of or interest on any of the Guarantor Obligations Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the TrusteeTrustee in accordance with this Indenture, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or the Trustee on behalf of the Holders Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guarantor Obligations then due and owing and Guaranteed Obligations, (ii) accrued and unpaid interest on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after the filing iii) all other monetary obligations of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and then due to the Holders, on the other hand, (x) Trustee and the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration Collateral Agent in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Guaranteed Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Guarantees. The First Lien Notes and all obligations under the indenture related thereto will be unconditionally guaranteed by each existing and subsequently acquired or organized wholly owned domestic subsidiary of the Issuer (a) Subject the “Note Guarantors”), subject to exceptions consistent with the provisions of this Article XDocumentation Precedent and others, each Guarantor hereby jointly and severallyif any, irrevocably, fully and unconditionally guaranteesto be set forth in the definitive documentation, on a senior unsecured basisfirst-priority secured basis (the “Note Guarantees”). The Note Guarantees will rank pari passu in all respects, as guarantor and not as a suretyincluding in right of payment, with each other Guarantor, to each Holder, to all obligations under the extent lawful, and the Trustee, the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes Credit Agreement and all other Obligations senior indebtedness of the Note Guarantors. The Note Guarantees will be guarantees of payment and performance and not of collection. Security: Subject to the limitations set forth below and limitations consistent with the Documentation Precedent, the First Lien Notes and the Note Guarantees will be secured by a first-priority security interest in substantially all the owned material assets of the Issuer under this Indenture and each Note Guarantor, in each case whether owned on the Notes Closing Date or thereafter acquired (includingcollectively, without limitationthe “Collateral”), interest accruing after including but not limited to: (a) a perfected first-priority pledge of all the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to equity interests directly held by the Issuer or any Note Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewedwhich pledge, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal the case of any Guarantor Obligation.
foreign subsidiary, shall be limited to 100% of the non-voting equity interests (if any) and 65% of the voting equity interests of such foreign subsidiary) (b) Each Guarantor waives (to the extent lawful) presentation toa perfected first priority lien on cash, demand ofdeposit accounts and securities accounts, payment from and protest to the Issuer of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each perfected first-priority security interests in, and mortgages on, substantially all owned tangible and intangible assets of the Issuer and each Note Guarantor further agrees (including, but not limited to, accounts receivable, inventory, equipment, general intangibles, investment property, intellectual property and real property (including an assignment of rents)) except for (v) real property with a fair market value less than $15.0 million and leaseholds, (w) vehicles, (x) those assets as to which the Issuer and Collateral Agent shall reasonably determine that its Guarantee herein constitutes the costs or other consequences of obtaining such a Guarantee security interest are excessive in relation to the value of payment when due the security to be afforded thereby, (y) assets to which the granting or perfecting such security interest would violate any applicable law (including gaming laws and regulations) or contract (and with regard to which contract the counterparty thereto requires such prohibition as a condition to entering into such contract, such contract has been entered into in the ordinary course of business, such restriction is consistent with industry custom and consent has been requested and not received), and (z) other exceptions consistent with the Documentation Precedent; and provided that the pledge of equity interests and other securities will be subject to customary Rule 3-16 cut-back provisions. For avoidance of doubt, lockbox arrangements and control agreements relating to the Issuer’s and its subsidiaries’ bank accounts and securities accounts will be required to be delivered at closing. The operating lease with [Caesars Entertainment Operating Company, Inc.] shall be subject to a Guarantee of collection) customary subordination and waives any right non-disturbance agreement as provided in the Lease Term Sheet attached to require that any resort the Restructuring Support Agreement. All the above-described pledges, security interests and mortgages shall be had by any Holder created on terms, and pursuant to any security held documentation, consistent with the Documentation Precedent. The relative rights and priorities in the Collateral for payment each of the Guarantor Obligations.
(d) Except as Credit Agreement and the First Lien Notes will be set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees thatFirst Lien Intercreditor Agreement, as between such Guarantorthe administrative agent for the Credit Agreement, on the one hand, and the Holderstrustee for the First Lien Notes, on the other hand, (x) which intercreditor agreement shall provide that the maturity of indebtedness outstanding under the Guarantor Obligations guaranteed hereby may be accelerated Credit Agreement and the First Lien Notes vote together as provided one class and are pari passu in this Indenture for the purposes of its Guarantee hereinall respects, notwithstanding any stay, injunction or other prohibition preventing such acceleration including in respect of directing the Guarantor Obligations guaranteed hereby collateral agent thereunder. The relative rights and (y) priorities in the event Collateral for each of any such declaration of acceleration of such Guarantor Obligationsthe Credit Agreement, such Guarantor Obligations (whether or not due the First Lien Notes and payable) shall forthwith become due and payable by the Guarantor Second Lien Notes will be set forth in the First Lien/Second Lien Intercreditor Agreement, as between the collateral agent for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any Credit Agreement and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation First Lien Notes, on the Notes to reflect any Guarantee or any releaseone hand, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) collateral agent for the Second Lien Notes, on the other considerations under applicable lawhand.
Appears in 1 contract
Sources: Restructuring Support and Forbearance Agreement (Caesars Entertainment Operating Company, Inc.)
Guarantees. (a) Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, to the extent lawful, and the Trustee, the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes and all other Obligations of the Issuer under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and or Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principalprincipal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Guarantees. (a) Subject The Guarantors, either by execution of this Agreement or a Joinder, fully and, subject to the provisions of limitations on the effectiveness and enforceability set forth in this Article XAgreement or such Joinder, each Guarantor hereby jointly and severallyas applicable, irrevocably, fully and unconditionally guaranteesguarantee, on a senior unsecured basis, as guarantor joint and not as a surety, with each other Guarantor, several basis to each Holder, Lender and to the extent lawful, Administrative Agent and the Trusteeits successors and assigns on behalf of each Lender, the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes and all other Obligations of the Issuer under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) The Guarantors further agree that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, the Guarantors and that it the Guarantors shall remain bound under this Article X XII notwithstanding any extension or renewal of any Guarantor Obligation. All payments under each Guarantee will be made in Dollars.
(b) Each Guarantor waives (The Guarantors hereby agree that their obligations hereunder shall be as if they were each principal debtor and not merely surety, unaffected by, and irrespective of, any 149 invalidity, irregularity or unenforceability of this Agreement, any failure to enforce the provisions of this Agreement, any waiver, modification or indulgence granted to the extent lawful) presentation toBorrowers with respect thereto by the Administrative Agent or the Lenders, or any other circumstance which may otherwise constitute a legal or equitable discharge of a surety or guarantor (except payment in full); provided that notwithstanding the foregoing, no such waiver, modification, indulgence or circumstance shall without the written consent of the Guarantors increase the principal amount of an Advance or the interest rate thereon or change the currency of payment with respect to any Advance, or alter the Stated Maturity thereof. The Guarantors hereby waive diligence, presentment, demand of payment, filing of claims with a court in the event of merger or bankruptcy of the Borrowers, any right to require that the Administrative Agent pursue or exhaust its legal or equitable remedies against the Borrowers prior to exercising its rights under a Guarantee (including, for the avoidance of doubt, any right which a Guarantor may have to require the seizure and sale of the assets of the Borrowers to satisfy the outstanding principal of, interest on or any other amount payable under this Agreement prior to recourse against such Guarantor or its assets), protest or notice with respect to any Advance and all demands whatsoever, and each covenant that their Guarantee will not be discharged except by payment from in full of the principal thereof and protest to the Issuer interest thereon or as otherwise provided in this Agreement, including Section 12.4. If at any time any payment of any Obligation is rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of the Guarantor Obligations and also waives (Borrowers, the Guarantors’ obligations hereunder with respect to such payment shall be reinstated as of the extent lawful) notice date of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes such rescission, restoration or the Guarantor Obligationsreturns as though such payment had become due but had not been made at such times.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor The Guarantors also agrees agree to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee Administrative Agent or the Holders any Lender in enforcing any rights under this SectionSection 12.1.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Sources: Term Loan Agreement (Carnival PLC)
Guarantees. (a) Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, to the extent lawful, the Trustee and the Trustee, Agent the full and punctual payment and performance when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes and all other Obligations of the Issuer Issuers under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer Issuers or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer Issuers of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in this Article X, Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the IssuerIssuers or of any other Guarantor; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and or Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principalprincipal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer Issuers to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee Trustee, the Agents or the Trustee on behalf of the Holders and such Agents an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer Issuers or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee Trustee, the Agent or the Holders in enforcing any rights under this Section.
(i) Each Guarantor acknowledges and agrees that the Guarantee of such Guarantor will be a general senior obligation of such Guarantor and will rank senior in right of payment to all future obligations of such Guarantor that are, by their terms, expressly subordinated in right of payment to such Guarantee and equal in right of payment with all existing and future obligations of such Guarantor that are not so subordinated.
(j) Neither the Issuer Issuers nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(jk) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
(i) The obligations and liabilities of any Guarantor incorporated in France (each such Guarantor, a “French Guarantor”) under the Notes or this Indenture and in particular under this Article X shall not include any obligation or liability which, if incurred, would constitute the provision of financial assistance within the meaning of article L.225-216 of the French Code de Commerce and/or would constitute a misuse of corporate assets within the meaning of articles L.242-6 or L.244-1 of the French Code de Commerce or any other law or regulation having the same effect, as interpreted by French courts.
(ii) The obligations and liabilities of each French Guarantor under this Article X for the obligations under the Notes or this Indenture of any other obligor which is not a Subsidiary of such French Guarantor shall be limited, at any time to an amount equal to the proceeds from the offering of the Notes which the Issuers have applied for the direct or indirect benefit of each French Guarantor through the intercompany loan agreements and cash pooling arrangements that are outstanding on the date a payment is requested to be made by such French Guarantor under this Article X; it being specified that any payment made by a French Guarantor under this Article X in respect of the obligations of the Issuers shall reduce pro tanto the outstanding amount due by such French Guarantor under the intercompany loan agreements or cash pooling arrangements referred to above and that any repayment of the intercompany loans or of the cash pooling arrangements by the French Guarantor shall reduce pro tanto the amount payable under this Article X.
(iii) The obligations and liabilities of each French Guarantor under this Article X for the obligations under the Notes or this Indenture of any other obligor which is its Subsidiary shall not be limited, and shall therefore cover all amounts due by such obligor. However, where such Subsidiary is itself a Guarantor that guarantees the obligations of an obligor that is not a Subsidiary of the relevant French Guarantor, the amounts payable by such French Guarantor under this paragraph (iii) in respect of the obligations of this Subsidiary as Guarantor, shall be limited as set out in paragraph (ii) above.
(m) With respect to any German Guarantor (as defined below), the following limitations and defenses in relation to such German Guarantor’s obligations and liabilities under its Guarantee shall apply:
Appears in 1 contract
Sources: Indenture (Ortho Clinical Diagnostics Holdings PLC)
Guarantees. (a) Subject By its execution hereof, each Guarantor acknowledges that it receives substantial benefits from the Issuer and that the Guarantors are providing their Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article X15, each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, severally with each other Guarantor, to each HolderHolder of the Notes, to the extent lawful, and the Trustee, Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption upon repurchase due to a Fundamental Change or otherwise, of the principal ofof (including the repurchase price upon repurchase pursuant to Article 3), premium, if any, and interest Interest on the Notes and all other Obligations obligations of the Issuer under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6proceeding) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X 15 notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee guarantee of payment when due (and not a Guarantee guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the The obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by by
(a1) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person person under this Indenture, the Notes or any other agreement or otherwise; ;
(b2) any extension or renewal of any thereof; ;
(c3) any rescission, waiver, amendment or modification of any of the terms or provisions of this IndentureIndenture (other than the terms of this Guarantee), the Notes or any other agreement; ;
(d4) the release of any security held by any Holder or the Trustee for the Guarantor Obligations or any of them; ;
(e5) the failure of any Holder to exercise any right or remedy against any other Guarantor; ;
(f6) any change in the ownership of the General Partner or the Issuer; ;
(g7) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or or
(h) 8) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII15.03. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principalprincipal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the General Partner or the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption upon repurchase due to a Fundamental Change or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (xi) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (yii) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor Guarantors for the purposes of this such Guarantors’ Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this SectionSection 15.01.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Guarantees. (a1) Subject to The Offered Securities shall have the benefit of Guarantees by each of the Guarantors, on the terms set forth in Article XV of the Base Indenture, until such Guarantor is released as a Guarantor in accordance with clause (3) below. Each Guarantor hereby confirms its Guarantee of the Offered Securities and confirms the applicability of the provisions of this Article Xthe Base Indenture to such Guarantor with respect to the Offered Securities.
(2) Parent shall cause each of its Subsidiaries that becomes a guarantor or borrower under the Senior Credit Facility at any time after the date hereof, each Guarantor hereby within 20 days of becoming such a guarantor or borrower, to execute and deliver to the Trustee a supplemental indenture to the Base Indenture pursuant to which such Subsidiary will fully and unconditionally, and jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, severally with each other Guarantor, to each Holder, to the extent lawful, and the Trustee, guarantee the full and punctual prompt payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest in respect of the Offered Securities on the Notes a senior unsecured basis and all other Obligations under the Indenture with respect to the Offered Securities.
(3) Each Guarantee of the Issuer Offered Securities shall be automatically and unconditionally released and discharged upon:
(a) in the case of a Subsidiary Guarantor, any sale, assignment, transfer, conveyance, exchange or other disposition (by merger, consolidation or otherwise) of capital stock or other interests of such Subsidiary Guarantor after which the applicable Subsidiary Guarantor is no longer a Subsidiary of Parent, which sale, assignment, transfer, conveyance, exchange or other disposition is made in compliance with the provisions of the Indenture (including Section 10.02 of the Base Indenture); provided that all guarantees and other Obligations of such Subsidiary Guarantor in respect of all other Indebtedness under this Indenture and the Notes (including, without limitation, interest accruing after the filing Senior Credit Facility terminate upon consummation of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.transaction;
(b) Each Guarantor waives (to upon the extent lawful) presentation to, demand of, payment from and protest to the Issuer sale or disposition of any all or substantially all of the assets of a Subsidiary Guarantor, which sale or disposition is made in compliance with the provisions of the Indenture (including Section 10.02 of the Base Indenture); provided that all guarantees and other Obligations of such Subsidiary Guarantor Obligations and also waives (to the extent lawful) notice in respect of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default all other Indebtedness under the Notes or the Guarantor Obligations.Senior Credit Facility terminate upon consummation of such transaction;
(c) Each the release or discharge of such Subsidiary Guarantor further agrees that from its Guarantee herein constitutes guarantee of Indebtedness or its Obligations under the Senior Credit Facility (including, by reason of the termination of the Senior Credit Facility), except a Guarantee release or discharge by or as a result of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.under such guarantee;
(d) Except as set forth the Company’s exercise of its legal defeasance option or covenant defeasance option in accordance with Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment 11.03 of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration Base Indenture or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason discharge of the invalidity, illegality or unenforceability Company’s Obligations under the Indenture in accordance with the terms of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.or
(e) Each Guarantor agrees in the case of Parent, the Company ceases for any reason to be a Subsidiary of Parent; provided that all guarantees and other Obligations of Parent in respect of all other Indebtedness under the Senior Credit Facility terminate upon the Company ceasing to be a Subsidiary. In addition, at the Company’s option, and not automatically, Parent shall be released under its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor Offered Securities if it is released from its Guarantee guarantee of the Senior Credit Facility in compliance with Section 4.1, Section 10.2 and Article VIIIthe same manner as specified in clause (c) above. Each In the event that any released Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as (in the case may beof clause (c) above or the immediately preceding paragraph) thereafter borrows money or guarantees Indebtedness under the Senior Credit Facility, if at any time payment, or any part thereof, of principal, premium, if any, or interest on any such former Guarantor shall again provide a Guarantee of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwiseOffered Securities.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Guarantees. (a) Subject to the provisions of this Article X2007 UK Intercreditor Agreement, the First Lien Intercreditor Agreement and any Additional Intercreditor Agreement, each Senior Secured Note Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, Holder and to the extent lawful, Trustee and the Trustee, its successors and assigns (i) the full and punctual payment of principal of and interest on the Senior Secured Notes when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes and all other Obligations monetary obligations of the Issuer Issuers under this Senior Secured Notes Indenture and the Senior Secured Notes and (including, without limitation, interest accruing after ii) the filing full and punctual performance within applicable grace periods of any petition in bankruptcy, or all other obligations of the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding Issuers under this Senior Secured Notes Indenture and the obligations under Section 7.6) Senior Secured Notes (all the foregoing being hereinafter collectively called the “Guarantor Guaranteed Obligations”), subject to the limitations set forth in Section 10.08; provided, however, that in no event shall a US Controlled Foreign Subsidiary be required to guarantee the Guaranteed Obligations. Each Senior Secured Note Guarantor further agrees (to the extent lawful) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, such Senior Secured Note Guarantor and that it shall such Senior Secured Note Guarantor will remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Guaranteed Obligation.
(b) Each Senior Secured Note Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer Issuers of any of the Guarantor Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Senior Secured Note Guarantor waives (to the extent lawful) notice of any default under the Senior Secured Notes or the Guaranteed Obligations. The obligations of each Senior Secured Note Guarantor hereunder shall not be affected by (1) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuers or any other Person (including any Senior Secured Note Guarantor) under this Senior Secured Notes Indenture, the Senior Secured Notes or any other agreement or otherwise; (2) any extension or renewal of any thereof; (3) any rescission, waiver, amendment or modification of any of the terms or provisions of this Senior Secured Notes Indenture, the Senior Secured Notes or any other agreement; (4) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (5) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (6) except as set forth in Section 10.06, any change in the ownership of such Senior Secured Note Guarantor.
(c) Each Senior Secured Note Guarantor further agrees that its Senior Secured Note Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guarantor Guaranteed Obligations.
(d) [Reserved.]
(e) Except as expressly set forth in Section 10.2 Article VIII and Article VIIISections 10.02, 10.06 and 10.08, the obligations of each Senior Secured Note Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Senior Secured Note Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Senior Secured Notes Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Senior Secured Notes or any other agreement; (d) the release , by any waiver or modification of any security held thereof, by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; obligations, or (h) by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any such Senior Secured Note Guarantor or would otherwise operate as a discharge of such Senior Secured Note Guarantor as a matter of law or equity.
(ef) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Senior Secured Note Guarantor further agrees that its Senior Secured Note Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, principal of or interest on any of the Guarantor Obligations Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the any Issuer or otherwise.
(fg) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Senior Secured Note Guarantor by virtue hereof, upon the failure of the Issuer Issuers to pay the principal of or interest on any of the Guarantor Obligations 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 Senior Secured Note Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee Holders or the Trustee on behalf of the Holders an amount equal to the sum of (iA) the unpaid amount of such Guarantor Obligations then due and owing and Guaranteed Obligations, (iiB) accrued and unpaid interest and premiums (if any) on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) and (including interest accruing after C) all other monetary Guaranteed Obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating Issuers to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)Holders and the Trustee.
(gh) Each Senior Secured Note Guarantor further agrees that, as between such Guarantorit, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (xi) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture Article VI for the purposes of its such Senior Secured Note Guarantor’s Senior Secured Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Guaranteed Obligations guaranteed hereby hereby, and (yii) in the event of any such declaration of acceleration of such Guarantor ObligationsGuaranteed Obligations as provided in Article VI, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the such Senior Secured Note Guarantor for the purposes of this GuaranteeSection 10.01.
(hi) Each Senior Secured Note Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) fees and expenses), subject to the limitations set forth in Section 10.08, incurred by the Trustee Trustee, the Collateral Agent or the Holders any Holder in enforcing any rights under this SectionSection 10.01.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Sources: Senior Secured Notes Indenture (Beverage Packaging Holdings (Luxembourg) v S.A.)
Guarantees. (a) Subject to the provisions of this Article XSection 6 hereof, each Guarantor hereby jointly absolutely, unconditionally and severallyirrevocably guarantees (each, irrevocably, fully and unconditionally guaranteesa “Guarantee”), on a senior unsecured joint and several basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, Holder of 2020 Notes (including each Holder of 2020 Notes issued under the Indenture after the date of this Amendment No. 2) and to the extent lawfulTrustee and its successors and assigns on a senior basis, irrespective of the validity and enforceability of the TrusteeIndenture, the 2020 Notes or the obligations of the Company hereunder or thereunder (i) the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of all monetary obligations of the principal of, premium, if any, Company under the Indenture (including obligations to the Trustee) and interest on (ii) the Notes full and punctual performance within applicable grace periods of all other Obligations obligations of the Issuer Company under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”)Indenture. Each Guarantor further agrees that its obligations hereunder shall be unconditional irrespective of the absence or existence of any action to enforce the same, the recovery of any judgment against the Company (except to the extent lawfulsuch judgment is paid) or any waiver or amendment of the provisions of the Indenture or the 2020 Notes to the extent that the any such action or any similar action would otherwise constitute a legal or equitable discharge or defence of such Guarantor Obligations may (except that such waiver or amendment shall be extended or renewed, effective in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligationaccordance with its terms).
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, Failing payment from and protest to the Issuer when due of any of amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantor Obligations Guarantors will be jointly and also waives (severally obligated to pay the extent lawful) notice of protest for nonpaymentsame immediately. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee guarantee of payment when due (payment, performance and compliance and not a Guarantee merely of collection.
(c) Subject to this Section 2 and waives Section 5 and 6 hereof, the Guarantors hereby agree that their obligations hereunder are unconditional, irrespective of the validity, regularity or enforceability of the 2020 Notes or the Indenture, the absence of any right action to require that enforce the same, any resort be had waiver or consent by any Holder of the 2020 Notes with respect to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIIIprovisions hereof or thereof, the obligations recovery of each Guarantor hereunder shall not be subject any judgment against the Company, any action to enforce the same or any reduction, limitation, impairment other circumstance which might otherwise constitute a legal or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration equitable discharge or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwisea Guarantor. Without limiting the generality of the foregoing, each Guarantor’s liability under this Guarantee shall extend to all obligations under the obligations 2020 Notes and the Indenture (including, without limitation, interest, fees, costs and expenses) that would be owed but for the fact that they are unenforceable or not allowable due to any proceeding under bankruptcy law involving the Company or any Guarantor. Each Guarantor further agrees to waive presentment to, demand of each Guarantor herein shall not (payment from and protest to the extent lawful) be discharged Company of its Guarantee, and also waives diligence, notice of acceptance of its Guarantee, presentment, demand for payment, notice of protest for non-payment, the filing of claims with a court in the event of merger or impaired or otherwise affected by (a) bankruptcy of the failure of any Holder or the Trustee to assert any claim or demand or to enforce Company and any right or remedy to require a proceeding first against the Issuer Company or any other Person under this Indenture, Person. The obligations of a Guarantor shall not be affected by any failure or policy on the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any part of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder Trustee to exercise any right or remedy against under the Indenture or the 2020 Notes of any other Guarantor; (f) any change in the ownership of the Issuer; (g) any defaultseries. Subject to Section 5 hereof, failure or delay, willful or otherwise, in the each Guarantor covenants that this Guarantee will not be discharged except by complete performance of the obligations contained in the 2020 Notes and the Indenture.
(d) The obligation of a Guarantor Obligations; to make any payment hereunder may be satisfied by causing the Company or (h) any other act Guarantor to make such payment. If any Holder of any 2020 Notes or thing the Trustee is required by any court or omission otherwise to return to the Company or delay to do any 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 any custodian, trustee, liquidator or other similar official acting in relation to any of the Company or any such Guarantor as a matter any amount paid by any of law them to the Trustee or equitysuch Holder, any applicable Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
(e) Each Guarantor also agrees that its Guarantee herein shall remain in full force to pay any and effect until payment in full of all costs and expenses (including reasonable attorneys’ fees) incurred by the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, Trustee or any part thereof, Holder of principal, premium, if any, or interest on 2020 Notes in enforcing any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwisetheir respective rights under its Guarantee.
(f) In furtherance Each Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders of the foregoing and not 2020 Notes in limitation respect of any other right which any Holder has at law or obligations guaranteed hereby until payment and performance in equity against any Guarantor by virtue hereof, upon the failure full of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) all obligations guaranteed hereby. Each Guarantor further agrees that, as between such Guarantorthe Guarantors, on the one hand, and the HoldersHolders of the 2020 Notes and the Trustee, on the other hand, (x1) the maturity of the Guarantor Obligations obligations guaranteed hereby may be accelerated as provided in this Article VII of the Second Supplemental Indenture for the purposes of its Guarantee hereinthis Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby hereby, and (y2) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Article VII of the Second Supplemental Indenture, such Guarantor Obligations obligations (whether or not due and payable) shall will forthwith become due and payable by the Guarantor Guarantors for the purposes purpose of this Guarantee. The Guarantors will have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders of the 2020 Notes under the Guarantee.
(hg) Each Guarantor also agrees Any term or provision of this Amendment No. 2 to pay any the contrary notwithstanding, the maximum aggregate amount of a Guarantor’s Guarantee shall not exceed the maximum amount that will, after giving effect to such maximum amount and all reasonable costs other contingent and expenses (including reasonable attorneys’ fees) incurred fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the Trustee or the Holders in enforcing any rights obligations of such other Guarantor under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any releaseSection 2, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law result in the jurisdiction obligations of organization of the applicable such Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are under its Guarantee not limited to, (i) those related to constituting either a fraudulent conveyance, fraudulent transfer, transfer or conveyance or voidable preference, financial assistance, corporate purpose, assistance or improper corporate benefit, or violating the corporate purpose of the relevant Guarantor or any applicable capital maintenance, earnings stripping, retention of title claims and maintenance or similar laws, laws or regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum generally under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under any applicable lawlaw or regulation.
Appears in 1 contract
Sources: Amendment No. 2 to Second Supplemental Indenture (International Game Technology PLC)
Guarantees. (a) Subject to the provisions of this Article X, each Each Guarantor hereby jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, guarantees on a an unsecured senior unsecured basis, as guarantor a primary obligor and not merely as a surety, with each other Guarantor, to each Holder, Holder and to the extent lawful, Trustee and the Trustee, its successors and assigns (i) the full performance and punctual payment when due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Issuer under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, and or interest on or additional interest in respect of the Notes and all other Obligations monetary obligations of the Issuer under this Indenture and the Notes and (including, without limitation, interest accruing after ii) the filing full and punctual performance within applicable grace periods of any petition in bankruptcy, or the commencement all other obligations of any insolvency, reorganization or like proceeding, relating to the Issuer whether for fees, expenses, indemnification or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding otherwise under this Indenture and the obligations under Section 7.6) Notes (all the foregoing being hereinafter collectively called the “Guarantor Guaranteed Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it each such Guarantor shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Guaranteed Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuer of any of the Guarantor Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Guaranteed Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the . The obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (ai) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (bii) any extension or renewal of this Indenture, the Notes or any thereofother agreement; (ciii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (div) the release of any security held by any Holder or the Trustee for the Guarantor Guaranteed Obligations or any of themGuarantor; (ev) the failure of any Holder or Trustee to exercise any right or remedy against any other Guarantorguarantor of the Guaranteed Obligations; or (fvi) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
(c) Each Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Guarantors, such that such Guarantor’s obligations would be less than the full amount claimed. Each Guarantor hereby waives any right to which it may be entitled to have the assets of the Issuer first be used and depleted as payment of the Issuer; ’s or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder. Each Guarantor hereby waives any right to which it may be entitled to require that the Issuer be sued prior to an action being initiated against such Guarantor.
(gd) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01, 9.01, 10.02 and 10.06, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; obligations, or (h) 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 such any Guarantor as a matter of law or equity.
(ef) Each Except as expressly set forth in Sections 8.01, 9.01 and 10.02, each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee Guaranteed Obligations. Except as expressly set forth in compliance with Section 4.1Sections 8.01, Section 10.2 9.01 and Article VIII. Each 10.02, each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, principal of or interest on any of the Guarantor Obligations Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuer or otherwise.
(fg) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay the principal of or interest on any of the Guarantor Obligations 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 Trustee Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guarantor Obligations then due and owing and Guaranteed Obligations, (ii) accrued and unpaid interest on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after iii) all other monetary obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating Issuer to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed Holders and the Trustee in such proceeding)respect of the Guaranteed Obligations.
(gh) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between such Guarantorit, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (xi) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture Article 6 for the purposes of its any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Guaranteed Obligations guaranteed hereby hereby, and (yii) in the event of any such declaration of acceleration of such Guarantor ObligationsGuaranteed Obligations as provided in Article 6, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the such Guarantor for the purposes of this GuaranteeSection .
(hi) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ feesfees and expenses) incurred by the Trustee or the Holders any Holder in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any GuaranteeSection .
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization Upon request of the applicable Trustee, each Guarantor shall execute and defenses generally available deliver such further instruments and do such further acts as may be reasonably necessary or proper to guarantors in such jurisdiction. For carry out more effectively the avoidance purpose of doubt, such limitations and defenses may include, but are not limited to, this Indenture.
(ik) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability Any Guarantee given by any Parent of the Guarantees and Issuer may be released at any time upon written notice to the Security Interests” and (iii) other considerations under applicable lawTrustee from such Parent of the Issuer.
Appears in 1 contract
Sources: Indenture (Intelsat LTD)
Guarantees. (a) Subject to the provisions of this Article XFor value received, each Subsidiary Guarantor hereby jointly fully guarantees, as principal obligor and severally, irrevocably, fully and unconditionally guaranteesnot merely as surety, on a secured, senior unsecured subordinated, joint and several basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, Holder and to the extent lawful, Trustee and the Trusteeits successors and assigns on behalf of each Holder, the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes on, and all other Obligations monetary obligations of the Issuer under this the Indenture and the Notes this Note (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating including obligations to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding Trustee and the obligations under Section 7.6to pay Additional Amounts, if any) with respect to each Note authenticated and delivered by the Trustee or its agent pursuant to and in accordance with the Indenture, in accordance with the terms of the Indenture (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, such Subsidiary Guarantor and that it such Subsidiary Guarantor shall remain bound under this by Article X Ten of the Indenture notwithstanding any extension or renewal of any Obligation. All payments under these Guarantees shall be made in euro. These and other additional obligations of each Subsidiary Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from Holder and protest to the Issuer of any Trustee pursuant to these Guarantees and the Indenture (including, without limitation, the provisions relating to submission to jurisdiction and appointment of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as Authorized Agent set forth in Section 10.2 the Indenture) are expressly set forth in the Indenture to which reference is hereby made for the precise terms of such obligations. These Guarantees shall be governed by, and Article VIIIconstrued in accordance with, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment laws of the Guarantor Obligations in full), including any claim State of waiver, release, surrender, alteration or compromise, and shall not (to New York. This Guarantee is dated the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason date of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing Note upon which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equityit is endorsed.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Guarantees. (a) Subject Each Guarantor that guarantees the Notes pursuant to the provisions of this Article XIndenture, each Guarantor hereby jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, on as a senior unsecured basis, as guarantor primary obligor and not merely as a surety, with each other Guarantor, to each Holder, to the extent lawful, Holder and the Trustee, Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration, by redemption acceleration or otherwise, of all Obligations of the Company under this Indenture (including Obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, and or interest on the Notes and all other monetary Obligations of the Issuer Company under this Indenture and the Notes and (includingii) the full and punctual performance within applicable grace periods of all other Obligations of the Company whether for fees, without limitationexpenses, interest accruing after the filing of any petition in bankruptcy, indemnification or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding otherwise under this Indenture and the obligations under Section 7.6) Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guarantor Guaranteed Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it such Guarantor shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Guaranteed Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuer Company of any of the Guarantor Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default Default under the Notes or the Guarantor Guaranteed Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guarantor Guaranteed Obligations.
(d) Except as expressly set forth in Section 10.2 and Article VIII10.02, the obligations Obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIIIGuaranteed Obligations. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time paymentpayment of, or any part thereof, principal of principal, premium, if any, or interest on any of the Guarantor Obligations Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuer Company or any of its Subsidiaries or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer Company to pay the principal of or interest on any of the Guarantor Obligations 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guarantor Obligations then due and owing and Guaranteed Obligations, (ii) accrued and unpaid interest on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after iii) all other monetary Obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating Company to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)Trustee.
(g) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Trustee in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between such Guarantorit, on the one hand, and the HoldersTrustee, on the other hand, (xi) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture Article VI for the purposes of its any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Guaranteed Obligations guaranteed hereby hereby, and (yii) in the event of any such declaration of acceleration of such Guarantor ObligationsGuaranteed Obligations as provided in Article VI, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the such Guarantor for the purposes of this GuaranteeSection 10.01.
(h) Each Guarantor also agrees to pay any and all reasonable fees, costs and expenses (including reasonable attorneys’ feesfees and expenses) incurred by the Trustee or the Holders any Holder in enforcing any rights under this SectionSection 10.01.
(i) Neither Each Guarantor shall promptly execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity purpose of any Guaranteethis Indenture.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Sources: Indenture (Valvoline Inc)
Guarantees. (a) Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each HolderHolder of the Notes, to the extent lawful, and the Trustee, Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes and all other Obligations of the Issuer under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principalprincipal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither None of the Issuer nor or the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
(k) If and to the extent that a Guarantor incorporated in Switzerland (a “Swiss Guarantor”) is liable under the Guarantees or any other provision of the Notes or this Indenture, for obligations other than obligations of one of its wholly owned subsidiaries (being obligations of its direct or indirect parent companies (an up-stream guarantee) or sister companies (a cross-stream guarantee)) (for purposes of this clause (k), the “Restricted Obligations”), and that the making of a payment in fulfilling Restricted Obligations would under Swiss corporate law (inter alia, prohibiting capital repayments or restricting distributions) at the time payment is due, not be permitted, then such obligations and payment amount shall from time to time be limited to the amount permitted to be paid under Swiss corporate law; provided that such limited amount shall at no time be less than such Swiss Guarantor’s distributable capital at the time or times payment is requested from the relevant Swiss Guarantor, and further provided that such limitation (as may apply from time to time or not) shall not (generally or definitively) release such Swiss Guarantor from payment obligations hereunder in excess thereof, but merely postpone the payment date therefore until such times as payment is again permitted notwithstanding such limitation. Any and all indemnities and guarantees contained in the Notes or this Indenture shall be construed in a manner consistent with the provisos herein contained. In case a Swiss Guarantor who must make a payment in respect of Restricted Obligations under its Guarantee is obliged to withhold Swiss Withholding Tax (Verrechnungssteuer) in respect of such payment, such Swiss Guarantor shall:
(i) procure that such payments can be made without deduction of Swiss Withholding Tax, or with deduction of Swiss Withholding Tax at a reduced rate, by discharging the liability to such tax by notification pursuant to applicable law (including double tax treaties) rather than payment of the tax;
(ii) if the notification procedure pursuant to sub-paragraph (i) above does not apply, deduct Swiss Withholding Tax at the rate of 35% (or such other rate as in force from time to time), or if the notification procedure pursuant to sub-paragraph (i) above applies for a part of the Swiss Withholding Tax only, deduct Swiss Withholding Tax at the reduced rate resulting after the discharge of part of such tax by notification under applicable law, from any payment made by it in respect of Restricted Obligations and promptly pay any such taxes to the Swiss Federal Tax Administration (Eidgenössische Steuerverwaltung);
(iii) notify the Trustee that such notification, or as the case may be, deduction has been made and provide the Trustee with evidence that such a notification of the Swiss Federal Tax Administration has been made or, as the case may be, such taxes deducted have been paid to the Swiss Federal Tax Administration;
(iv) in the case of a deduction of Swiss Withholding Tax:
(1) use its best efforts to ensure that any Person other than the Trustee which is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such payment in respect of Restricted Obligations, will, as soon as possible after such deduction (A) request a refund of the Swiss Withholding Tax under applicable law (including tax treaties) and (B) pay to the Trustee upon receipt any amounts so refunded; and
(2) if the Trustee is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such payment, shall provide the Trustee those documents that are required by law and applicable tax treaties to be provided by the payer of such tax, in order to enable the Trustee to prepare a claim for refund of Swiss Withholding Tax.
Appears in 1 contract
Guarantees. (a) Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, to the extent lawful, and the Trustee, Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes and all other Obligations of the Issuer Issuers under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer Issuers or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall will remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer Issuers of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall will not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall will not (to the extent lawful) be discharged or impaired or otherwise affected by (ai) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (bii) any extension or renewal of any thereof; (ciii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (div) the release of any security held by any Holder for the Guarantor Obligations or any of them; (ev) the failure of any Holder to exercise any right or remedy against any other Guarantor; (fvi) any change in the ownership of the IssuerIssuers; (gvii) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (hviii) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall will remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principalprincipal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer Issuers to pay any of the Guarantor Obligations when and as the same shall will become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and shallwill, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer Issuers or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (xi) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (yii) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall will forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer Issuers nor the Guarantors shall will be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall will not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Guarantees. (a) Subject to the provisions of this Article XSection 6 hereof, each Guarantor hereby jointly absolutely, unconditionally and severallyirrevocably guarantees (each, irrevocably, fully and unconditionally guaranteesa “Guarantee”), on a senior unsecured joint and several basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, Holder of 2019 Notes (including each Holder of 2019 Notes issued under the Indenture after the date of this Amendment No. 3) and to the extent lawfulTrustee and its successors and assigns on a senior basis, irrespective of the validity and enforceability of the TrusteeIndenture, the 2019 Notes or the obligations of the Company hereunder or thereunder (i) the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of all monetary obligations of the principal of, premium, if any, Company under the Indenture (including obligations to the Trustee) and interest on (ii) the Notes full and punctual performance within applicable grace periods of all other Obligations obligations of the Issuer Company under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”)Indenture. Each Guarantor further agrees that its obligations hereunder shall be unconditional irrespective of the absence or existence of any action to enforce the same, the recovery of any judgment against the Company (except to the extent lawfulsuch judgment is paid) or any waiver or amendment of the provisions of the Indenture or the 2019 Notes to the extent that the any such action or any similar action would otherwise constitute a legal or equitable discharge or defence of such Guarantor Obligations may (except that such waiver or amendment shall be extended or renewed, effective in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligationaccordance with its terms).
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, Failing payment from and protest to the Issuer when due of any of amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantor Obligations Guarantors will be jointly and also waives (severally obligated to pay the extent lawful) notice of protest for nonpaymentsame immediately. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee guarantee of payment when due (payment, performance and compliance and not a Guarantee merely of collection.
(c) Subject to this Section 2 and waives Section 5 and 6 hereof, the Guarantors hereby agree that their obligations hereunder are unconditional, irrespective of the validity, regularity or enforceability of the 2019 Notes or the Indenture, the absence of any right action to require that enforce the same, any resort be had waiver or consent by any Holder of the 2019 Notes with respect to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIIIprovisions hereof or thereof, the obligations recovery of each Guarantor hereunder shall not be subject any judgment against the Company, any action to enforce the same or any reduction, limitation, impairment other circumstance which might otherwise constitute a legal or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration equitable discharge or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwisea Guarantor. Without limiting the generality of the foregoing, each Guarantor’s liability under this Guarantee shall extend to all obligations under the obligations 2019 Notes and the Indenture (including, without limitation, interest, fees, costs and expenses) that would be owed but for the fact that they are unenforceable or not allowable due to any proceeding under bankruptcy law involving the Company or any Guarantor. Each Guarantor further agrees to waive presentment to, demand of each Guarantor herein shall not (payment from and protest to the extent lawful) be discharged Company of its Guarantee, and also waives diligence, notice of acceptance of its Guarantee, presentment, demand for payment, notice of protest for non-payment, the filing of claims with a court in the event of merger or impaired or otherwise affected by (a) bankruptcy of the failure of any Holder or the Trustee to assert any claim or demand or to enforce Company and any right or remedy to require a proceeding first against the Issuer Company or any other Person under this Indenture, Person. The obligations of a Guarantor shall not be affected by any failure or policy on the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any part of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder Trustee to exercise any right or remedy against under the Indenture or the 2019 Notes of any other Guarantor; (f) any change in the ownership of the Issuer; (g) any defaultseries. Subject to Section 5 hereof, failure or delay, willful or otherwise, in the each Guarantor covenants that this Guarantee will not be discharged except by complete performance of the obligations contained in the 2019 Notes and the Indenture.
(d) The obligation of a Guarantor Obligations; to make any payment hereunder may be satisfied by causing the Company or (h) any other act Guarantor to make such payment. If any Holder of any 2019 Notes or thing the Trustee is required by any court or omission otherwise to return to the Company or delay to do any 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 any custodian, trustee, liquidator or other similar official acting in relation to any of the Company or any such Guarantor as a matter any amount paid by any of law them to the Trustee or equitysuch Holder, any applicable Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
(e) Each Guarantor also agrees that its Guarantee herein shall remain in full force to pay any and effect until payment in full of all costs and expenses (including reasonable attorneys’ fees) incurred by the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, Trustee or any part thereof, Holder of principal, premium, if any, or interest on 2019 Notes in enforcing any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwisetheir respective rights under its Guarantee.
(f) In furtherance Each Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders of the foregoing and not 2019 Notes in limitation respect of any other right which any Holder has at law or obligations guaranteed hereby until payment and performance in equity against any Guarantor by virtue hereof, upon the failure full of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) all obligations guaranteed hereby. Each Guarantor further agrees that, as between such Guarantorthe Guarantors, on the one hand, and the HoldersHolders of the 2019 Notes and the Trustee, on the other hand, (x1) the maturity of the Guarantor Obligations obligations guaranteed hereby may be accelerated as provided in this Article VII of the First Supplemental Indenture for the purposes of its Guarantee hereinthis Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby hereby, and (y2) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Article VII of the First Supplemental Indenture, such Guarantor Obligations obligations (whether or not due and payable) shall will forthwith become due and payable by the Guarantor Guarantors for the purposes purpose of this Guarantee. The Guarantors will have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders of the 2019 Notes under the Guarantee.
(hg) Each Guarantor also agrees Any term or provision of this Amendment No. 3 to pay any the contrary notwithstanding, the maximum aggregate amount of a Guarantor’s Guarantee shall not exceed the maximum amount that will, after giving effect to such maximum amount and all reasonable costs other contingent and expenses (including reasonable attorneys’ fees) incurred fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the Trustee or the Holders in enforcing any rights obligations of such other Guarantor under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any releaseSection 2, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law result in the jurisdiction obligations of organization of the applicable such Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are under its Guarantee not limited to, (i) those related to constituting either a fraudulent conveyance, fraudulent transfer, transfer or conveyance or voidable preference, financial assistance, corporate purpose, assistance or improper corporate benefit, or violating the corporate purpose of the relevant Guarantor or any applicable capital maintenance, earnings stripping, retention of title claims and maintenance or similar laws, laws or regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum generally under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under any applicable lawlaw or regulation.
Appears in 1 contract
Sources: Amendment No. 3 to First Supplemental Indenture (International Game Technology PLC)
Guarantees. The Company will not, and will not permit any Subsidiary, other than Fingerhut Financial Services Corporation and its subsidiaries, to, create, incur, assume or permit to exist any Guarantee, except
(a) Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, to the extent lawful, and the Trustee, the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes and all other Obligations of the Issuer under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.Guaranty;
(b) Each Guarantor waives the Guarantees of the Subsidiaries incurred (i) as guarantors of the Existing Notes under the Existing Guarantees and any Guarantee of the Subsidiaries that may be required to be incurred pursuant to the extent lawfulExisting Purchase Agreements and (ii) presentation to, demand of, payment from and protest to the Issuer of any as guarantors of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.Bank Credit Agreement;
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee Guarantees of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment Indebtedness of the Guarantor Obligations.Subsidiaries permitted by Section 8.2 and Guarantees of Operating Leases of the Subsidiaries not prohibited by Section 8.12;
(d) Except as set forth in Section 10.2 and Article VIII, the obligations Guarantees of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment additional Indebtedness of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or Company permitted by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; clause (d) of Section 8.1, provided that the release of instrument representing any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership such Guarantee contains an acknowledgement of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance existence of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary Guaranty and an agreement on the risk part of any Guarantor or would otherwise operate as a discharge the beneficiary of such Guarantor as a matter Guarantee not to contest the validity of law the Guaranty or equity.the Notes;
(e) Each Guarantor agrees Guarantees by the MWD Subsidiaries of Indebtedness of M▇▇▇▇▇▇▇▇▇ W▇▇▇ Direct; provided that its immediately after the creation, incurrence, assumption or existence of any such Guarantee herein shall remain in full force and after giving effect until payment in full thereto the aggregate amount of all Indebtedness of M▇▇▇▇▇▇▇▇▇ W▇▇▇ Direct guaranteed by the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 outstanding Guarantees permitted under this clause (e) and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
under clause (f) In furtherance of the foregoing and 8.14, without duplication, shall not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders exceed an amount equal to the sum difference between $30,000,000 and the aggregate amount of all outstanding loans and advances and all capital contributions made by the MWD Subsidiaries to M▇▇▇▇▇▇▇▇▇ W▇▇▇ Direct;
(f) Guarantees by the Company of Indebtedness of M▇▇▇▇▇▇▇▇▇ W▇▇▇ Direct, provided that such Guarantees are permitted by clause (d) of 8.1 and that immediately after the creation, incurrence, assumption or existence of any such Guarantee and after giving effect thereto the aggregate amount of Indebtedness of M▇▇▇▇▇▇▇▇▇ W▇▇▇ Direct guaranteed by the outstanding Guarantees permitted under this clause (f) and under clause (e) of 8.14, without duplication, shall not exceed an amount equal to the difference between $30,000,000 and the aggregate amount of all outstanding loans and advances and all capital contributions made by the Company or any Subsidiary to M▇▇▇▇▇▇▇▇▇ W▇▇▇ Direct;
(g) (i) Guarantees by the unpaid amount Company or any Subsidiary of Indebtedness or other obligations of any of the Financial Services Companies, provided that such Guarantor Obligations then due and owing Guarantees are permitted by clause (d) of Section 8.1 hereof and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to Guarantees by any of the extent not prohibited by law) (including interest accruing after the filing Financial Services Companies of Indebtedness or other obligations of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.Financial Services Companies;
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred additional Guarantees by the Trustee Company of Indebtedness or other obligations, provided that such Guarantees are permitted by clause (d) of 8.1 and that immediately after the Holders in enforcing any rights creation, incurrence, assumption or existence of such additional Guarantee and after giving effect thereto the aggregate amount of all Indebtedness and other obligations guaranteed by the outstanding Guarantees of the Company permitted under this Section.clause (h) does not exceed $5,000,000; and
(i) Neither Notwithstanding anything in the Issuer nor foregoing, no Guarantee of Indebtedness shall at any time be permitted to be made by FRI, any of the Guarantors shall be required to make a notation on TV Shopping Companies, either of the Notes to reflect any Guarantee MWD Subsidiaries, the Credit Card Bank or any releaseSubsidiary that is a subsidiary of FRI, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For TV Shopping Companies, either of the avoidance of doubtMWD Subsidiaries or the Credit Card Bank, such limitations and defenses may include, but are not limited to, other than (i) those related as permitted under clause (e) with respect to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims the MWD Subsidiaries and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability Guarantees of Indebtedness of one or more of the Guarantees and TV Shopping Companies by one of such TV Shopping Companies."
SECTION 3.09. The following Section 8.18 shall be added to the Security Interests” and (iii) other considerations under applicable law.Purchase Agreement immediately following Section 8.17 thereof:
Appears in 1 contract
Sources: Fourth Amendment Agreement (Fingerhut Companies Inc)
Guarantees. (a) Subject Holdings, in consideration of the Purchaser's ---------- entering into this Agreement and purchasing Notes, unconditionally and irrevocably guarantees to the provisions Purchaser and each and every holder from time to time of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, to any of the extent lawful, and Notes the Trustee, the full due and punctual payment when due, whether at maturity, by acceleration, by redemption of all sums which may become due or otherwise, be stated in the Notes or in this Agreement to become due under the terms and provisions of the Notes and this Agreement in respect of the principal of, premiumof and prepayment charge, if any, and interest on the Notes and all other Obligations of the Issuer under this Indenture and the Notes (including, without limitation, including interest accruing after the filing of on any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of overdue principal, premiumprepayment charge, if any, or interest and, to the extent permitted by applicable law, on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become dueoverdue interest), whether at stated maturity, by acceleration, by redemption notice of prepayment or otherwise, and all other sums which may become due from the Borrower or be stated to be or become so due under the Notes or this Agreement. Holdings further guarantees to the Purchasers and each Guarantor hereby promises to holder as aforesaid the due performance and shall, upon receipt of written demand observance by the TrusteeBorrower of all covenants, forthwith pay, or cause agreements and conditions on the Borrower's part to be paid, in cash, performed under this Agreement and any other document from time to time delivered by the Borrower pursuant to this Agreement. Holdings further guarantees to the Trustee or the Trustee on behalf Purchasers and each holder as aforesaid payment of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the all other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and amounts payable by the Guarantor for Borrower under this Agreement or the purposes Notes, including costs, expenses (including fees and expenses of this Guarantee.
counsel) and taxes (h) Each Guarantor also such principal, prepayment charge, if any, interest and other obligations guaranteed as aforesaid being hereinafter collectively called the "Obligations" and to the ----------- extent lawful agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ feesfees and expenses of counsel) incurred by the Trustee or the Holders each holder of any Note in enforcing any rights under in connection with this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Guarantees. (a) Subject to the provisions of this Article X, each Each Guarantor hereby jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, guarantees on a senior unsecured secured basis, as guarantor a primary obligor and not merely as a surety, with each other Guarantor, to each Holder, to the extent lawful, Holder and the Trustee, Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration, by redemption acceleration or otherwise, of all obligations of the Issuer under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, and or interest on on, if any, the Notes and all other Obligations monetary obligations of the Issuer under this Indenture and the Notes and (including, without limitation, interest accruing after ii) the filing full and punctual performance within applicable grace periods of any petition in bankruptcy, or the commencement all other obligations of any insolvency, reorganization or like proceeding, relating to the Issuer whether for fees, expenses, indemnification or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding otherwise under this Indenture and the obligations under Section 7.6) Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guarantor "Guaranteed Obligations”"). Each Guarantor further agrees (to the extent lawful) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it each such Guarantor shall remain bound under this Article X Ten notwithstanding any extension or renewal of any Guarantor Guaranteed Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuer of any of the Guarantor Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Guaranteed Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guarantor Guaranteed Obligations.
(d) Except as expressly set forth in Section 10.2 Sections 8.01(b), 10.02, 10.03 and Article VIII10.06, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIIIGuaranteed Obligations. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, principal of or interest on any of the Guarantor Obligations Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay the principal of or interest on any of the Guarantor Obligations 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 Trustee (or the Trustee on behalf of the Holders its designee) an amount equal to the sum of (i) the unpaid principal amount of such Guarantor Obligations then due and owing and Guaranteed Obligations, (ii) accrued and unpaid interest on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after iii) all other monetary obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating Issuer to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)Trustee.
(g) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Trustee in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between such Guarantorit, on the one hand, and the HoldersTrustee, on the other hand, (x) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture Article Six for the purposes of its any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Guaranteed Obligations guaranteed hereby hereby, and (yii) in the event of any such declaration of acceleration of such Guarantor ObligationsGuaranteed Obligations as provided in Article Six, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the such Guarantor for the purposes of this GuaranteeSection 10.01.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees' fees and expenses) incurred by the Trustee or the Holders any Holder in enforcing any rights under this SectionSection 10.01. Each Guarantor shall promptly execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Sources: Indenture (Kronos Worldwide Inc)
Guarantees. (a) Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, to the extent lawful, and the Trustee, the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes and all other Obligations of the Issuer under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principalprincipal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Guarantees. (a) Subject to the provisions of this Article X, each Each Guarantor hereby jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, guarantees on a senior unsecured secured basis, as guarantor a primary obligor and not merely as a surety, with each other Guarantor, to each Holder, to the extent lawful, Holder and the Trustee, Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration, by redemption acceleration or otherwise, of all obligations of the Issuer under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, and or interest on on, if any, the Notes and all other Obligations monetary obligations of the Issuer under this Indenture and the Notes and (including, without limitation, interest accruing after ii) the filing full and punctual performance within applicable grace periods of any petition in bankruptcy, or the commencement all other obligations of any insolvency, reorganization or like proceeding, relating to the Issuer whether for fees, expenses, indemnification or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding otherwise under this Indenture and the obligations under Section 7.6) Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guarantor Guaranteed Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it each such Guarantor shall remain bound under this Article X Ten notwithstanding any extension or renewal of any Guarantor Guaranteed Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuer of any of the Guarantor Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Guaranteed Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guarantor Guaranteed Obligations.
(d) Except as expressly set forth in Section 10.2 Sections 8.01(b), 10.02, 10.03 and Article VIII10.06, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIIIGuaranteed Obligations. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, principal of or interest on any of the Guarantor Obligations Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay the principal of or interest on any of the Guarantor Obligations 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 Trustee (or the Trustee on behalf of the Holders its designee) an amount equal to the sum of (i) the unpaid principal amount of such Guarantor Obligations then due and owing and Guaranteed Obligations, (ii) accrued and unpaid interest on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after iii) all other monetary obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating Issuer to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)Trustee.
(g) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Trustee in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between such Guarantorit, on the one hand, and the HoldersTrustee, on the other hand, (x) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture Article Six for the purposes of its any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Guaranteed Obligations guaranteed hereby hereby, and (yii) in the event of any such declaration of acceleration of such Guarantor ObligationsGuaranteed Obligations as provided in Article Six, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the such Guarantor for the purposes of this GuaranteeSection 10.01.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ feesfees and expenses) incurred by the Trustee or the Holders any Holder in enforcing any rights under this SectionSection 10.01. Each Guarantor shall promptly execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Guarantees. (a) Subject to the provisions of this Article X10, each Guarantor hereby jointly and severally, irrevocably, fully severally with each other Guarantor irrevocably and unconditionally guarantees, guarantees (to the extent permitted by law) as a primary obligor and not merely as a surety on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, basis to each Holder, to the extent lawful, and the Trustee, the Collateral Agent and their respective successors and assigns (i) the full and punctual payment when due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, of all Obligations of the Issuer under this Indenture (including obligations to the Trustee) and the Securities, whether for payment of principal of, premiumor premium or interest on, if any, the Securities (and interest on the Notes any applicable Exit Fee) and all other Obligations monetary obligations of the Issuer under this Indenture and the Notes Securities, and (includingii) the full and punctual performance within applicable grace periods of all other obligations of the Issuer, without limitationwhether for fees, interest accruing after the filing of any petition in bankruptcyexpenses, indemnification or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding otherwise under this Indenture and the obligations under Section 7.6) Securities, on the terms set forth in this Indenture by becoming a party to this Indenture (all the foregoing being hereinafter collectively called the “Guarantor Guaranteed Obligations”). .
(b) Each Guarantor further agrees that (to the extent lawfulpermitted by law) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it each such Guarantor shall remain bound under this Article X 10 notwithstanding any extension or renewal of any Guaranteed Obligation. The Guaranteed Obligations of a Guarantor Obligationwill be secured by security interests (subject to Permitted Liens) in the Notes Collateral owned by such Guarantor to the extent provided for in the Security Documents and as required pursuant to Sections 4.11 and 4.13.
(bc) Each Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuer of any of the Guarantor Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes Securities or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (i) the failure of any Holder, the Trustee or the Collateral Agent to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Securities, any Security Document, or any other agreement or otherwise; (ii) any extension or renewal of this Indenture, the Securities, any Security Document or any other agreement; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Securities, any Security Document or any other agreement; (iv) the release of any security held by any Holder, the Trustee or the Collateral Agent for the Guaranteed Obligations or any Guarantor; (v) the failure of any Holder, the Trustee or the Collateral Agent to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (vi) any change in the ownership of such Guarantor, except as provided in Section 10.03.
(cd) Each Guarantor hereby waives any right to which it may be entitled to (i) have its obligations hereunder divided among the Guarantors, such that such Guarantor’s obligations would be less than the full amount claimed, (ii) have the assets of the Issuer or any other Guarantor first be used and depleted as payment of the Issuer’s or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder and (iii) require that the Issuer be sued prior to an action being initiated against such Guarantor.
(e) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee guarantee of collection) and waives any right to require that any resort be had by any Holder Holder, the Trustee or the Collateral Agent to any security held for payment of the Guarantor Guaranteed Obligations.
(df) Except as expressly set forth in Section 10.2 Sections 8.01, 10.02, 10.03 and Article VIII10.06, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the payment in full of the Guarantor Obligations in fullGuaranteed Obligations), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (ai) the failure of any Holder Holder, the Trustee or the Trustee Collateral Agent to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes Securities, any Security Document or any other agreement or otherwise; agreement, (bii) any extension or renewal of any thereof; (c) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenturethereof, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (giii) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; Guaranteed Obligations or (hiv) any other act or thing or omission or delay to do any other act or thing which that may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such any Guarantor as a matter of law or equity.
(eg) Each Except as expressly set forth in Sections 8.01 and 10.03, each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee Guaranteed Obligations. Except as expressly set forth in compliance with Section 4.1Sections 8.01 and 10.03, Section 10.2 and Article VIII. Each each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, principal of or interest on any of the Guarantor Obligations Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuer or otherwise.
(fh) In furtherance of the foregoing and not in limitation of any other right which that any Holder Holder, the Trustee or the Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay the principal of or interest on any of the Guarantor Obligations Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the TrusteeTrustee in accordance with this Indenture, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or the Trustee on behalf of the Holders Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guarantor Guaranteed Obligations then due and owing and due, (ii) accrued and unpaid interest on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after iii) all other monetary obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating Issuer then due to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed Holders, the Trustee and the Collateral Agent in such proceeding)respect of the Guaranteed Obligations.
(gi) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between such Guarantorit, on the one hand, and the Holders, the Trustee and the Collateral Agent, on the other hand, (xi) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture Article 6 for the purposes of its any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Guaranteed Obligations guaranteed hereby hereby, and (yii) in the event of any such declaration of acceleration of such Guarantor ObligationsGuaranteed Obligations as provided in Article 6, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the such Guarantor for the purposes of this GuaranteeSection 10.01.
(hj) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable and documented attorneys’ feesfees and expenses) incurred by the Trustee Trustee, the Collateral Agent or the Holders any Holder in enforcing any rights under this SectionSection 10.01.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(jk) Each Guarantee Guarantor shall execute and deliver such further instruments and do such further acts as may be subject reasonably necessary or proper to limitations in accordance with local law in carry out more effectively the jurisdiction purpose of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable lawthis Indenture.
Appears in 1 contract
Guarantees. (a) Subject to the provisions of this Article X, each Each Guarantor hereby jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, on as a senior unsecured basis, as guarantor primary obligor and not merely as a surety, with each other Guarantor, to each Holder, to the extent lawful, Holder and the Trustee, Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration, by redemption acceleration or otherwise, of all obligations of the Issuer under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, and or interest on on, if any, the Notes and all other Obligations monetary obligations of the Issuer under this Indenture and the Notes and (including, without limitation, interest accruing after ii) the filing full and punctual performance within applicable grace periods of any petition in bankruptcy, or the commencement all other obligations of any insolvency, reorganization or like proceeding, relating to the Issuer whether for fees, expenses, indemnification or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding otherwise under this Indenture and the obligations under Section 7.6) Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guarantor Guaranteed Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it each such Guarantor shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Guaranteed Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuer of any of the Guarantor Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default Default under the Notes or the Guarantor Guaranteed Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guarantor Guaranteed Obligations.
(d) Except as expressly set forth in Section 10.2 and Article VIII10.02, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subject to Section 10.02 hereof, each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIIIGuaranteed Obligations. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time paymentpayment of, or any part thereof, principal of principal, premium, if any, or interest on any of the Guarantor Obligations Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuer Holdings or any of its Subsidiaries or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay the principal of or interest on any of the Guarantor Obligations 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guarantor Obligations then due and owing and Guaranteed Obligations, (ii) accrued and unpaid interest on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after iii) all other monetary obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating Issuer to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)Trustee.
(g) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Trustee in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between such Guarantorit, on the one hand, and the HoldersTrustee, on the other hand, (xi) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture Article VI for the purposes of its any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Guaranteed Obligations guaranteed hereby hereby, and (yii) in the event of any such declaration of acceleration of such Guarantor ObligationsGuaranteed Obligations as provided in Article VI, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the such Guarantor for the purposes of this GuaranteeSection 10.01.
(h) Each Guarantor also agrees to pay any and all reasonable fees, costs and expenses (including reasonable attorneys’ feesfees and expenses) incurred by the Trustee or the Holders any Holder in enforcing any rights under this SectionSection 10.01.
(i) Neither Each Guarantor shall promptly execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity purpose of any Guaranteethis Indenture.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Sources: Indenture (AerCap Holdings N.V.)
Guarantees. (a) Subject to the provisions of this Article X, each Each Guarantor hereby jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, on as a senior unsecured basis, as guarantor primary obligor and not merely as a surety, with each other Guarantor, to each Holder, to the extent lawful, Holder and the Trustee, Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration, by redemption acceleration or otherwise, of all obligations of the Issuers under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, and or interest on on, if any, the Notes and all other Obligations monetary obligations of the Issuer Issuers under this Indenture and the Notes and (includingii) the full and punctual performance within applicable grace periods of all other obligations of the Issuers whether for fees, without limitationexpenses, interest accruing after the filing of any petition in bankruptcy, indemnification or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding otherwise under this Indenture and the obligations under Section 7.6) Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guarantor Guaranteed Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it each such Guarantor shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Guaranteed Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuer Issuers of any of the Guarantor Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default Default under the Notes or the Guarantor Guaranteed Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guarantor Guaranteed Obligations.
(d) Except as expressly set forth in Section 10.2 and Article VIII10.02, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subject to Section 10.02 hereof, each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIIIGuaranteed Obligations. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time paymentpayment of, or any part thereof, principal of principal, premium, if any, or interest on any of the Guarantor Obligations Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuer Holdings or any of its Subsidiaries or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer Issuers to pay the principal of or interest on any of the Guarantor Obligations 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guarantor Obligations then due and owing and Guaranteed Obligations, (ii) accrued and unpaid interest on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after iii) all other monetary obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating Issuers to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)Trustee.
(g) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Trustee in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between such Guarantorit, on the one hand, and the HoldersTrustee, on the other hand, (xi) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture Article VI for the purposes of its any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Guaranteed Obligations guaranteed hereby hereby, and (yii) in the event of any such declaration of acceleration of such Guarantor ObligationsGuaranteed Obligations as provided in Article VI, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the such Guarantor for the purposes of this GuaranteeSection 10.01.
(h) Each Guarantor also agrees to pay any and all reasonable fees, costs and expenses (including reasonable attorneys’ feesfees and expenses) incurred by the Trustee or the Holders any Holder in enforcing any rights under this SectionSection 10.01.
(i) Neither Each Guarantor shall promptly execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity purpose of any Guaranteethis Indenture.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Sources: Indenture (AerCap Holdings N.V.)
Guarantees. (a) Subject to the provisions of this Article X, each Each Guarantor hereby jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, Holder of a Note authenticated and delivered by the Trustee and to the extent lawful, and the Trustee, the Collateral Agent and their respective successors and assigns (i) the full and punctual payment when due, subject to applicable grace periods, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Company (including obligations to the Trustee and the Collateral Agent) under this Indenture, the Notes and the Notes Security Documents, whether for payment of principal of, premium, if any, and or interest on the Notes and all other Obligations monetary obligations of the Issuer Company under this Indenture Indenture, the Notes and the Notes Security Documents, and (includingii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, without limitationexpenses, interest accruing after indemnification or otherwise under this Indenture, the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding Notes and the obligations under Section 7.6) Notes Security Documents (all the foregoing being hereinafter collectively called the “Guarantor Guaranteed Obligations”). Each The Guaranteed Obligations of a Guarantor agrees (will be secured by security interests in the Collateral owned by such Guarantor to the extent lawful) that provided for in the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, Notes Security Documents and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligationas required pursuant to Sections 4.13 and 4.18.
(b) Each Guarantor waives (Guarantor, to the extent lawful) permitted by law, waives presentation to, demand of, of payment from and protest to the Issuer Company of any of the Guarantor Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (i) the failure of any Holder, the Trustee or the Collateral Agent to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes, any Notes Security Document or any other agreement or otherwise; (ii) any extension or renewal of this Indenture, the Notes, any Notes Security Document or any other agreement; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes, any Notes Security Document or any other agreement; (iv) the release of any security held by any Holder, the Trustee or the Collateral Agent for the Guaranteed Obligations or any Guarantor; (v) the failure of any Holder, Trustee or the Collateral Agent to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (vi) any change in the ownership of such Guarantor, except as provided in Section 12.02(b).
(c) Subject to Section 12.02(a), each Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Guarantors, such that such Guarantor’s obligations would be less than the full amount claimed. Each Guarantor hereby waives any right to which it may be entitled to have the assets of the Company or any other Guarantor first be used and depleted as payment of the Company’s or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder. Each Guarantor hereby waives any right to which it may be entitled to require that the Company be sued prior to an action being initiated against such Guarantor.
(d) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee guarantee of collection) and waives any right to require that any resort be had by any Holder Holder, the Trustee or the Collateral Agent to any security held for payment of the Guarantor Guaranteed Obligations.
(de) Except as expressly set forth in Section 10.2 and Article VIII12, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; .
(f) any change Except as expressly set forth in the ownership of the Issuer; (g) any defaultArticle 12, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee Guaranteed Obligations. Except as expressly set forth in compliance with Section 4.1Article 12, Section 10.2 and Article VIII. Each each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, principal of or interest on any of the Guarantor Obligations Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuer Company or otherwise.
(fg) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee or Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer Company to pay the principal of or interest on any of the Guarantor Obligations Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the TrusteeTrustee in accordance with this Indenture, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or the Trustee on behalf of the Holders Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guarantor Obligations then due and owing and Guaranteed Obligations, (ii) accrued and unpaid interest on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after iii) all other monetary obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating Company then due to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed Holders, the Trustee and the Collateral Agent in such proceeding)respect of the Guaranteed Obligations.
(gh) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between such Guarantorit, on the one hand, and the Holders, the Trustee and the Collateral Agent, on the other hand, (xi) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture Article 6 for the purposes of its any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Guaranteed Obligations guaranteed hereby hereby, and (yii) in the event of any such declaration of acceleration of such Guarantor ObligationsGuaranteed Obligations as provided in Article 6, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the such Guarantor for the purposes of this Section 12.01. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under any Guarantee.
(hi) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ feesfees and expenses) incurred by the Trustee Trustee, the Collateral Agent or the Holders any Holder in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any GuaranteeSection 12.01.
(j) Each The Guarantee set forth in this Article 12 shall not be subject valid or become obligatory for any purpose with respect to limitations in accordance with local law in the jurisdiction of organization a Note until such Note has been duly authenticated pursuant to this Indenture.
(k) Upon request of the applicable Trustee, each Guarantor shall execute and defenses generally available deliver such further instruments and do such further acts as may be necessary or proper to guarantors in such jurisdiction. For carry out more effectively the avoidance purpose of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable lawthis Indenture.
Appears in 1 contract
Guarantees. (a) Subject to the provisions of this Article X10, each Guarantor hereby jointly and severally, irrevocably, fully severally with each other Guarantor irrevocably and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, to the extent lawful, as a primary obligor and not merely as a surety on a senior basis to each Holder, the Trustee, the Collateral Agent and their respective successors and assigns (i) the full and punctual payment when due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, of all Obligations of the Issuer under this Indenture (including obligations to the Trustee) and the Securities, whether for payment of principal of, premiumor premium or interest on, if any, and interest on the Notes Securities and all other Obligations monetary obligations of the Issuer under this Indenture and the Notes Securities, and (includingii) the full and punctual performance within applicable grace periods of all other obligations of the Issuer, without limitationwhether for fees, interest accruing after the filing of any petition in bankruptcyexpenses, indemnification or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding otherwise under this Indenture and the obligations under Section 7.6) Securities, on the terms set forth in this Indenture by becoming a party to this Indenture (all the foregoing being hereinafter collectively called the “Guarantor Guaranteed Obligations”). .
(b) Each Guarantor further agrees (to the extent lawfulpermitted by law) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it each such Guarantor shall remain bound under this Article X 10 notwithstanding any extension or renewal of any Guaranteed Obligation. The Guaranteed Obligations of a Guarantor Obligationwill be secured by security interests (subject to Permitted Liens) in the Notes Collateral owned by such Guarantor to the extent provided for in the Security Documents and as required pursuant to Sections 4.11 and 4.13.
(bc) Each Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuer of any of the Guarantor Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes Securities or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (i) the failure of any Holder, the Trustee or the Collateral Agent to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Securities, any Security Document, or any other agreement or otherwise; (ii) any extension or renewal of this Indenture, the Securities, any Security Document or any other agreement; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Securities, any Security Document or any other agreement; (iv) the release of any security held by any Holder, the Trustee or the Collateral Agent for the Guaranteed Obligations or any Guarantor; (v) the failure of any Holder, the Trustee or the Collateral Agent to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (vi) any change in the ownership of such Guarantor, except as provided in Section 10.03.
(cd) Each Guarantor hereby waives any right to which it may be entitled to (i) have its obligations hereunder divided among the Guarantors, such that such Guarantor’s obligations would be less than the full amount claimed, (ii) have the assets of the Issuer or any other Guarantor first be used and depleted as payment of the Issuer’s or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder and (iii) require that the Issuer be sued prior to an action being initiated against such Guarantor.
(e) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee guarantee of payment and performance when due (and not a Guarantee guarantee of collection) and waives any right to require that any resort be had by any Holder Holder, the Trustee or the Collateral Agent to any security held for payment of the Guarantor Guaranteed Obligations.
(df) Except as expressly set forth in Section 10.2 Sections 8.01, 10.02, 10.03 and Article VIII10.06, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the payment in full of the Guarantor Obligations in fullGuaranteed Obligations), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (ai) the failure of any Holder Holder, the Trustee or the Trustee Collateral Agent to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes Securities, any Security Document or any other agreement or otherwise; agreement, (bii) any extension or renewal of any thereof; (c) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenturethereof, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (giii) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; Guaranteed Obligations or (hiv) any other act or thing or omission or delay to do any other act or thing which that may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such any Guarantor as a matter of law or equity.
(eg) Each Except as expressly set forth in Sections 8.01 and 10.03, each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee Guaranteed Obligations. Except as expressly set forth in compliance with Section 4.1Sections 8.01 and 10.03, Section 10.2 and Article VIII. Each each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, principal of or interest on any of the Guarantor Obligations Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuer or otherwise.
(fh) In furtherance of the foregoing and not in limitation of any other right which that any Holder Holder, the Trustee or the Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay the principal of or interest on any of the Guarantor Obligations Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the TrusteeTrustee in accordance with this Indenture, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or the Trustee on behalf of the Holders Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guarantor Guaranteed Obligations then due and owing and due, (ii) accrued and unpaid interest on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after iii) all other monetary obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating Issuer then due to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed Holders, the Trustee and the Collateral Agent in such proceeding)respect of the Guaranteed Obligations.
(gi) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between such Guarantorit, on the one hand, and the Holders, the Trustee and the Collateral Agent, on the other hand, (xi) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture Article 6 for the purposes of its any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Guaranteed Obligations guaranteed hereby hereby, and (yii) in the event of any such declaration of acceleration of such Guarantor ObligationsGuaranteed Obligations as provided in Article 6, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the such Guarantor for the purposes of this GuaranteeSection 10.01.
(hj) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable and documented attorneys’ feesfees and expenses) incurred by the Trustee Trustee, the Collateral Agent or the Holders any Holder in enforcing any rights under this SectionSection 10.01.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(jk) Each Guarantee Guarantor shall execute and deliver such further instruments and do such further acts as may be subject reasonably necessary or proper to limitations in accordance with local law in carry out more effectively the jurisdiction purpose of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable lawthis Indenture.
Appears in 1 contract
Guarantees. (a) Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured secured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, to the extent lawful, and the Trustee, the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal ofprincipal, premium, if any, and interest on the Notes and all other Obligations of the Issuer under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Guarantees. On the Issue Date, there will exist no Guarantors. With respect to any Person that becomes a Guarantor after the Issue Date, such Guarantor agrees as set forth in this Article 10.
(a) Subject to the provisions of this Article X, each Each Guarantor hereby jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, on as a senior unsecured basis, as guarantor primary obligor and not merely as a surety, with each other Guarantor, to each Holder, Holder and to the extent lawful, Trustee and the Trustee, its successors and assigns (i) the full and punctual payment when due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, of all obligations of the principal Issuer and Holdings under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of Accreted Value of, premium, if any, and or interest on or additional interest in respect of the Notes and all other Obligations monetary obligations of the Issuer and Holdings under this Indenture and the Notes and (including, without limitation, interest accruing after ii) the filing full and punctual performance within applicable grace periods of any petition in bankruptcy, or the commencement all other obligations of any insolvency, reorganization or like proceeding, relating to the Issuer and Holdings whether for fees, expenses, indemnification or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding otherwise under this Indenture and the obligations under Section 7.6) Notes (all the foregoing being hereinafter collectively called the “Guarantor Guaranteed Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it each such Guarantor shall remain bound under this Article X 10 notwithstanding any extension or renewal of any Guarantor Guaranteed Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuer and Holdings of any of the Guarantor Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Guaranteed Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the . The obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (ai) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise; (bii) any extension or renewal of this Indenture, the Notes or any thereofother agreement; (ciii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (div) the release of any security held by any Holder or the Trustee for the Guarantor Guaranteed Obligations or any of themGuarantor; (ev) the failure of any Holder or Trustee to exercise any right or remedy against any other Guarantorguarantor of the Guaranteed Obligations; or (fvi) any change in the ownership of the Issuer; (g) any defaultsuch Guarantor, failure or delay, willful or otherwise, except as provided in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding10.02(b).
(gc) Each Guarantor further agrees thathereby waives any right to which it may be entitled to have its obligations hereunder divided among the Guarantors, as between such that such Guarantor, on ’s obligations would be less than the one hand, and full amount claimed. Each Guarantor hereby waives any right to which it may be entitled to have the Holders, on the other hand, (x) the maturity assets of the Issuer and Holdings first be used and depleted as payment of the Issuer’s, Holdings’ or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor Obligations guaranteed hereunder. Each Guarantor hereby waives any right to which it may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees entitled to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither require that the Issuer nor the Guarantors shall or Holdings be required sued prior to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any an action being initiated against such notation shall not be a condition to the validity of any GuaranteeGuarantor.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Sources: Indenture (Intelsat LTD)
Guarantees. (a) Subject to the provisions of this Article X, each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, severally with each other Guarantor, to each HolderHolder of the Notes, to the extent lawful, and the Trustee, Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes and all other Obligations obligations of the Issuer Company under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer Company or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) and the Collateral Documents (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) . Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer Company of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) . Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) . Except as set forth in Section 4.2, Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer Company or any other Person person under this Indenture, the Notes Notes, the Collateral Documents the Intercreditor Agreement or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Notes, the Collateral Documents, the First Lien Intercreditor Agreement, the Intercreditor Agreement or any other agreement; (d) the release of any security held by any Holder or the Collateral Agent for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the IssuerCompany; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) . Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.14.2, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principalprincipal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer Company or otherwise.
(f) . In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer Company or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) . Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) . Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) . Neither the Issuer Company nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Sources: Indenture (Reddy Ice Holdings Inc)
Guarantees. (a) Subject Prior to the provisions of this Article XInitial Escrow Release Date, each the Securities will not be guaranteed. From and after the Initial Escrow Release Date, the Securities will be guaranteed by the Guarantors party to the Initial Escrow Release Supplemental Indenture. Each Guarantor hereby jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, guarantees on a senior unsecured secured basis, as guarantor a primary obligor and not merely as a surety, with each other Guarantor, to each Holder, Holder and to the extent lawful, Trustee and the Trustee, its successors and assigns (i) the full and punctual payment when due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Issuers under this Indenture (including obligations to the Trustee) and the Securities, whether for payment of principal of, premium, if any, and or interest on in respect of the Notes Securities and all other Obligations monetary obligations of the Issuer Issuers under this Indenture, the Security Documents and the Securities and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Issuers whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) Securities (all the foregoing being hereinafter collectively called the “Guarantor Guaranteed Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it each such Guarantor shall remain bound under this Article X 10 notwithstanding any extension or renewal of any Guarantor Guaranteed Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuer Issuers of any of the Guarantor Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes Securities or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (i) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuers or any other Person under this Indenture, the Securities or any other agreement or otherwise; (ii) any extension or renewal of this Indenture, the Securities or any other agreement; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Securities or any other agreement; (iv) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any Guarantor; (v) the failure of any Holder or Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (vi) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
(c) Each Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Guarantors, such that such Guarantor’s obligations would be less than the full amount claimed. Each Guarantor hereby waives any right to which it may be entitled to have the assets of the Company first be used and depleted as payment of the Issuers’ or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder. Each Guarantor hereby waives any right to which it may be entitled to require that the Issuers be sued prior to an action being initiated against such Guarantor.
(d) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guarantor Guaranteed Obligations.
(de) Except as expressly set forth in Section 10.2 Sections 8.01, 10.02 and Article VIII10.06, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes Securities or any other agreement or otherwise; (b) agreement, by any extension or renewal of any thereof; (c) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenturethereof, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; obligations, or (h) 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 such any Guarantor as a matter of law or equity.
(ef) Each Except as set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee Guaranteed Obligations. Except as set forth in compliance with Section 4.1Sections 8.01 and 10.02, Section 10.2 and Article VIII. Each each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, principal of or interest on any of the Guarantor Obligations Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuer Company or otherwise.
(fg) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer Issuers to pay the principal of or interest on any of the Guarantor Obligations 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 Trustee Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guarantor Obligations then due and owing and Guaranteed Obligations, (ii) accrued and unpaid interest on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after iii) all other monetary obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating Issuers to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed Holders and the Trustee in such proceeding)respect of the Guaranteed Obligations.
(gh) Each Guarantor agrees that it shall not be entitled to exercise any right of subrogation in relation to the Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between such Guarantorit, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (xi) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture Article 6 for the purposes of its any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Guaranteed Obligations guaranteed hereby hereby, and (yii) in the event of any such declaration of acceleration of such Guarantor ObligationsGuaranteed Obligations as provided in Article 6, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the such Guarantor for the purposes of this GuaranteeSection 10.01.
(hi) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ feesfees and expenses) incurred by the Trustee or the Holders any Holder in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any GuaranteeSection 10.01.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization Upon request of the applicable Trustee, each Guarantor shall execute and defenses generally available deliver such further instruments and do such further acts as may be reasonably necessary or proper to guarantors in such jurisdiction. For carry out more effectively the avoidance purpose of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable lawthis Indenture.
Appears in 1 contract
Guarantees. (a) Subject If Guarantees have been provided for any particular series of Securities pursuant to the provisions of this Article XSection 3.1, each applicable Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each HolderHolder of Securities of such series, to the extent lawful, Trustee and the Trustee, its successors and assigns: (a) the full and punctual payment of all of the principal of, and any premium and interest on, the Securities of such series when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes and all other Obligations monetary obligations of the Issuer under this Indenture and the Notes Securities of such series; and (including, without limitation, interest accruing after b) the filing full and punctual performance within applicable grace periods of any petition in bankruptcy, or all other obligations of the commencement of any insolvency, reorganization or like proceeding, relating Issuer under this Indenture with respect to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in Securities of such proceeding series and under the obligations under Section 7.6) Securities of such series (all the foregoing being hereinafter collectively called the “Guarantor Guaranteed Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, such Guarantor and that it shall such Guarantor will remain bound under this Article X XVI notwithstanding any extension or renewal of any Guaranteed Obligation. In addition, if Guarantees have been provided pursuant to Section 3.1 for a particular series of Securities, each applicable Guarantor Obligation.
waives: (b) Each Guarantor waives (to the extent lawful1) presentation to, demand of, payment from and protest to the Issuer of any of the Guarantor Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives non-payment; and (to the extent lawful2) notice of any default under the Notes Securities of such series or the Guarantor Guaranteed Obligations.
(c) Each Guarantor further , and agrees that the Holders of such Securities may exercise their rights of enforcement under its Guarantee herein constitutes a Guarantee without first exercising their rights of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of enforcement directly against the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the Issuer. The obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by by: (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes Securities or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Securities or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guarantor Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other GuarantorGuarantor of the Guaranteed Obligations; or (f) any change in the ownership of such Guarantor. If Guarantees have been provided for a particular series of Securities pursuant to Section 3.1, each applicable Guarantor further agrees that its Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Issuer; (g) Trustee to any security held for payment of the Guaranteed Obligations. If Guarantees have been provided for a particular series of Securities pursuant to Section 3.1, and except as expressly set forth in Sections 12.3(e), 16.2 and 16.6, the obligations of each applicable Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Securities or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; obligations, or (h) by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any such Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full . If Guarantees have been provided for a particular series of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Securities pursuant to Section 4.13.1, Section 10.2 and Article VIII. Each each applicable Guarantor further agrees that its Guarantee Guaranteed Obligations herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if anyprincipal of, or premium or interest on on, any of the Guarantor Obligations Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) . In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay the principal of, or premium or interest on, any of the Guarantor Obligations 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 Trustee Holders or the Trustee on behalf of the Holders an amount equal to the sum of of: (i1) the unpaid amount of such Guarantor Obligations then due and owing and Guaranteed Obligations; (ii2) accrued and unpaid interest on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by law); and (3) (including interest accruing after all other monetary Guaranteed Obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating Issuer to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Holders and the Trustee. Each Guarantor further agrees that, as between such Guarantorit, on the one hand, and the HoldersHolders and the Trustee, on the other hand, : (x) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture Article VII for the purposes of its such Guarantor’s Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby Guaranteed Obligations; and (y) in the event of any such declaration of acceleration of such Guarantor ObligationsObligations as provided in Article VII, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the such Guarantor for the purposes of this Guarantee.
(h) Each Section. If Guarantees have been provided for a particular series of Securities pursuant to Section 3.1, each applicable Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ feesfees and expenses of attorneys and other agents) incurred by the Trustee or the Holders any Holder in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Sources: Indenture (Molson Coors Brewing Co)
Guarantees. (a) Subject to the provisions of this Article X, each 13.1 Each Guarantor hereby jointly and severally, irrevocably, fully and severally unconditionally guarantees, on as a senior unsecured basis, as guarantor primary obligor and not merely as a surety, with each other Guarantor, to each Holder, to the extent lawful, and the Trustee, Holder the full and punctual payment when due, whether at maturitythe Maturity Date, by acceleration, by redemption prepayment or otherwise, of all obligations of the Borrower under this Note, whether for payment of principal ofor interest (including interest accruing during the pendency of any bankruptcy, premiuminsolvency, if anyreceivership or other similar proceeding, and interest on regardless of whether allowed or allowable in such proceeding) in respect of the Notes Note and all other Obligations monetary obligations of the Issuer Borrower under this Indenture and the Notes (includingNote, without limitationwhether for fees, interest accruing after the filing of any petition in bankruptcyexpenses, indemnification or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) otherwise (all the foregoing being hereinafter collectively called the “Guarantor "Guaranteed Obligations”"). Each Guarantor further agrees (to the extent lawful) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, pursuant to the terms of Section 5, without notice to or further assent from iteach such Guarantor, and that it each such Guarantor shall remain bound under this Article X Section 7 notwithstanding any extension or renewal of any Guarantor Guaranteed Obligation.
(b) 13.2 Each Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuer Borrower of any of the Guarantor Guaranteed Obligations and also waives (to the extent lawful) notice of acceptance of its guarantee and notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under this Note. The obligations of each Guarantor hereunder shall not be affected by (i) the Notes failure of the Holder to assert any claim or demand or to enforce any right or remedy against the Borrower or any other Person (as defined below) under this Note or any other agreement or otherwise; (ii) any extension of the repayment terms of the Guaranteed Obligations; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Note or any other agreement; (iv) the failure to perfect any security interest in, or the release of, any security held by the Holder for the Guaranteed Obligations or any of them; or (v) the failure of the Holder to exercise any right or remedy against any other Guarantor. In the event that there is a Change in Control with respect to any Guarantor, all obligations of such Guarantor Obligationshereunder shall be relieved in full and such Guarantor shall cease to be subject to any obligation hereunder or to be deemed a "Guarantor" upon the effectiveness of such Change in Control.
(c) 13.3 Each Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Guarantors, such that such Guarantor's obligations would be less than the full amount claimed. Each Guarantor hereby waives any right to which it may be entitled to have the assets of the Borrower first be used and depleted as payment of the Borrower'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 Borrower be sued prior to an action being initiated against such Guarantor.
13.4 Each Guarantor further agrees that its Guarantee guarantee herein constitutes a Guarantee guarantee of payment when due (and not a Guarantee guarantee of collection) and waives any right to require that any resort be had by any the Holder to any security held for payment of the Guarantor Guaranteed Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the 13.5 The obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromisecompromise of any Guaranteed Obligation, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any the Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer under this Note or any other Person under this Indentureagreement, the Notes or by any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held provision thereof by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Guaranteed Obligations; , or (h) by any other act or thing or omission or delay to do any other act or thing which that may or might in any manner or to any extent vary the risk of any Guarantor or that would otherwise operate as a discharge of such any Guarantor as a matter of law or equity.
(e) 13.6 Each Guarantor agrees that its Guarantee herein guarantee shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIIIGuaranteed Obligations. Each Guarantor further agrees that its Guarantee guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, principal of or interest on any of the Guarantor Obligations Guaranteed Obligation is rescinded or must otherwise be restored by any the Holder upon the bankruptcy or reorganization of the Issuer Borrower or otherwise.
(f) 13.7 In furtherance of the foregoing and not in limitation of any other right which any the Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer Borrower to pay any of the Guarantor Obligations Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption prepayment or otherwise, each Guarantor hereby promises to and shall, upon receipt of written demand by the TrusteeHolder, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders Holder an amount equal to the sum of (i) the unpaid amount of such Guarantor Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) 13.8 Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holder in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between such Guarantor, on the one hand, it and the Holders, on the other handHolder, (xi) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture Section 9 for the purposes of its Guarantee any guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Guaranteed Obligations guaranteed hereby hereby, and (yii) in the event of any such declaration of acceleration of such Guarantor ObligationsGuaranteed Obligations as provided in Section 10, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the such Guarantor for the purposes of this GuaranteeSection 7.
(h) 13.9 Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees' fees and expenses) incurred by the Trustee or the Holders Holder in enforcing any rights under this SectionSection 7.
13.10 The Borrower shall cause each Subsidiary that (i) has not executed and delivered this Note "as Guarantor" and (ii) is or becomes a Principal Borrower Subsidiary to execute and deliver such instruments and do such acts as may be necessary for such Principal Borrower Subsidiary to become a Guarantor under this Section 7, including without limitation Bookham Technology plc.
13.11 Upon request of the Holder, each Guarantor shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Note.
13.12 In the case of any payments made by a Guarantor pursuant to this Section 7, the following shall apply:
(a) All such payments shall be made to the Holder without withholding or deduction for, or on account of, Taxes (other than those withholdings or deductions to which payments by the Borrower are subject). In the event any withholding or deduction for Taxes is required by law or by the interpretation or administration thereof by the relevant governmental authority, such Guarantor shall pay such additional amounts as may be necessary in order that the net amounts received by the Holder after such withholding or deduction may not be less than the net amount that would have been received by the Holder from the Borrower.
(ib) Neither If the Issuer nor Holder is entitled to claim an exemption from, or a reduction of, any withholding or deduction for or on account of Taxes under any applicable law or treaty, the Guarantors Holder hereby covenants and agrees that it will take all reasonably necessary steps to secure the benefit of such exemption or reduction. Further, if the Holder is entitled to claim a refund of any withholding or deduction of or on account of Taxes under any applicable law or treaty, the Holder hereby covenants and agrees that it will take all reasonably necessary steps to secure such refund, and (to the extent that such Guarantor has made a payment of an additional amount pursuant to this Section 7(l)) account for such refund to such Guarantor.
(c) If (and for so long as) the Holder fails to satisfy its obligations under clause (ii) of this Section 7(l), such Guarantor shall not be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition payments under this Section 7 to the validity extent that such payments could have been avoided if the Holder had complied with its obligations under clause (ii) of any Guarantee.
this Section 7(l). For example (jand solely for purposes of illustration), if payments by such Guarantor are subject to a withholding tax of 15%, but under the applicable tax treaty the Holder is entitled to claim a reduction of withholding tax from 15% to 10%, then, if the Holder fails to comply with its obligations under clause (ii) Each Guarantee of this Section 7(l), such Guarantor shall be subject obligated to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, make payments under clause (i) those related of this Section 7(l) on the reduced 10% withholding tax and shall have no obligation under clause (i) of this Section 7(l) with respect to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, 5% withholding tax that could have been avoided if the Holder had complied with its obligations under clause (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable lawthis Section 7(l).
Appears in 1 contract
Guarantees. (a) Subject to the provisions of this Article X, each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, severally with each other Guarantor, to each HolderHolder of the Notes, to the extent lawful, and the Trustee, Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes and all other Obligations obligations of the Issuer Company under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer Company or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) and the Collateral Documents (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) . Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer Company of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) . Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) . Except as set forth in Section 4.2, Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer Company or any other Person person under this Indenture, the Notes Notes, the Collateral Documents, the First Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Notes, the Collateral Documents, the First Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any other agreement; (d) the release of any security held by any Holder or the Collateral Agent for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the IssuerCompany; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) . Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.14.2, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principalprincipal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer Company or otherwise.
(f) . In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer Company or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) . Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) . Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) . Neither the Issuer Company nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Sources: Indenture (Reddy Ice Holdings Inc)
Guarantees. (a) Subject to the provisions of this Article X, each Each Guarantor hereby jointly and severally, irrevocably, fully severally irrevocably and unconditionally guarantees, guarantees as a primary obligor and not merely as a surety on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, basis to each Holder, to the extent lawful, and the Trustee, the Collateral Agent and their respective successors and assigns (i) the full and punctual payment when due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Issuer under this Indenture (including obligations to the Trustee) and the Securities, whether for payment of principal of, or premium, if any, and or interest on on, the Notes Securities and all other Obligations monetary obligations of the Issuer under this Indenture and the Notes Securities, and (includingii) the full and punctual performance within applicable grace periods of all other obligations of the Issuer, without limitationwhether for fees, interest accruing after the filing of any petition in bankruptcyexpenses, indemnification or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding otherwise under this Indenture and the obligations under Section 7.6) Securities (all the foregoing being hereinafter collectively called the “Guarantor Guaranteed Obligations”). .
(b) Each Guarantor further agrees that (to the extent lawfulpermitted by law) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it each such Guarantor shall remain bound under this Article X 10 notwithstanding any extension or renewal of any Guaranteed Obligation. The Guaranteed Obligations of a Guarantor Obligationwill be secured by security interests (subject to Permitted Liens) in the Notes Collateral owned by such Guarantor to the extent provided for in the Security Documents and as required pursuant to Sections 4.11 and 4.13.
(bc) Each Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuer of any of the Guarantor Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes Securities or the Guarantor Guaranteed Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the . The obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (ai) the failure of any Holder Holder, the Trustee or the Trustee Collateral Agent to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes Securities, any Security Document, or any other agreement or otherwise; (bii) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Securities, any Security Document or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.;
Appears in 1 contract
Sources: Indenture (Quotient LTD)
Guarantees. (a) Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, to the extent lawful, and the Trustee, the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal ofprincipal, premium, if any, and interest on the Notes and all other Obligations of the Issuer under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Guarantees. (a) Subject to the provisions of this Article X11, each Guarantor hereby jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, Holder and to the extent lawful, Trustee and the Trustee, its successors and assigns (i) the full and punctual payment when due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, and or interest on in respect of the Notes and all other Obligations monetary obligations of the Issuer Company under this Indenture and the Notes and (includingii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, without limitationexpenses, interest accruing after the filing of any petition in bankruptcy, indemnification or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding otherwise under this Indenture and the obligations under Section 7.6) Notes (all the foregoing being hereinafter collectively called the “Guarantor Guaranteed Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it each such Guarantor shall remain bound under this Article X 10 notwithstanding any extension or renewal of any Guarantor Guaranteed Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuer Company of any of the Guarantor Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Guaranteed Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the . The obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (ai) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (bii) any extension or renewal of this Indenture, the Notes or any thereofother agreement; (ciii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (div) the release of any security held by any Holder or the Trustee for the Guarantor Guaranteed Obligations or any of themGuarantor; (ev) the failure of any Holder or Trustee to exercise any right or remedy against any other Guarantorguarantor of the Guaranteed Obligations; or (fvi) any change in the ownership of such Guarantor, except as provided in Section 10.04(b).
(c) Each Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Issuer; Guarantors, such that such Guarantor’s obligations would be less than the full amount claimed. Each Guarantor hereby waives any right to which it may be entitled to have the assets of the Company or any other Guarantor first be used and depleted as payment of the Company’s or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder. Each Guarantor hereby waives any right to which it may be entitled to require that the Company be sued prior to an action being initiated against such Guarantor.
(gd) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01(b), 10.02 and 10.06, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; obligations, or (h) 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 such any Guarantor as a matter of law or equity.
(ef) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIIIGuaranteed Obligations. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, principal of or interest on any of the Guarantor Obligations Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuer Company or otherwise.
(fg) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer Company to pay the principal of or interest on any of the Guarantor Obligations 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 Trustee Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guarantor Obligations then due and owing and Guaranteed Obligations, (ii) accrued and unpaid interest on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after iii) all other monetary obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating Company to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)Holders and the Trustee.
(gh) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between such Guarantorit, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (xi) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture Article 6 for the purposes of its any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Guaranteed Obligations guaranteed hereby hereby, and (yii) in the event of any such declaration of acceleration of such Guarantor ObligationsGuaranteed Obligations as provided in Article 6, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the such Guarantor for the purposes of this GuaranteeSection 10.01.
(hi) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ feesfees and expenses) incurred by the Trustee or the Holders any Holder in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any GuaranteeSection 10.01.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization Upon request of the applicable Trustee, each Guarantor shall execute and defenses generally available deliver such further instruments and do such further acts as may be reasonably necessary or proper to guarantors in such jurisdiction. For carry out more effectively the avoidance purpose of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable lawthis Indenture.
Appears in 1 contract
Guarantees. (a) Subject to the provisions of this Article X, Article XI and Section 12.19, each of the Company, eircom, Holdings and each Additional Note Guarantor hereby jointly fully, unconditionally and severally, irrevocably, fully and unconditionally irrevocably guarantees, on a senior unsecured basis, as guarantor primary obligor and not merely as a surety, with each other Guarantor, to each Holder, to Holder of the extent lawful, Notes and the Trustee, Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, interest, and interest Additional Amounts, if any, on the Notes and all other Obligations payment obligations of the Issuer eircom Funding under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all of the foregoing being hereinafter collectively called the “Guarantor Senior Subordinated Obligations”). Each of the Company, eircom, Holdings and each Additional Note Guarantor further agrees (to the extent lawfulpermitted by law) that the Guarantor Senior Subordinated Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall will remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Senior Subordinated Obligation. The guarantee of the Company given hereby is referred to herein as the “Senior Subordinated Valentia Guarantee,” the guarantee of eircom given hereby is referred to herein as the “Senior Subordinated eircom Guarantee” (which, together with the Senior Subordinated Valentia Guarantee and each Additional Note Guarantee, are referred to herein as the “Note Guarantees”). The guarantee of Holdings given hereby is referred to herein as the “Subordinated Holdings Guarantee.
(b) ” Each of the Company, eircom, Holdings and any Additional Note Guarantor waives (to the extent lawfulpermitted by law) presentation to, demand of, of payment from and protest to the Issuer eircom Funding of any of the Guarantor Senior Subordinated Obligations and also waives (to the extent lawfulpermitted by law) notice of protest for nonpayment. Each of the Company, eircom, Holdings and any Additional Note Guarantor waives (to the extent lawfulpermitted by law) notice of any default under the Notes or the Guarantor Senior Subordinated Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the . The obligations of each of the Company, eircom, Holdings and any Additional Note Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawfulpermitted by law) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer eircom Funding or any other Person person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guarantor Senior Subordinated Obligations or any of them; or (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of eircom Funding. Each of the Issuer; Company, eircom, Holdings and any Additional Note Guarantor further agrees that each Note Guarantee herein (gor in the case of Holdings, the Subordinated Holdings Guarantee herein) constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives (to the extent permitted by law) any right to require that any resort be had by any Holder to any security held for payment of the Senior Subordinated Obligations. The obligations of each of the Company, eircom, Holdings and any Additional Note Guarantor hereunder (to the extent permitted by law) shall, subject to this Article X, Article XI and Section 12.19, not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Senior Subordinated Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Senior Subordinated Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each of the Company, eircom, Holdings and any Additional Note Guarantor herein (to the extent permitted by law) shall, subject to this Article X, Article XI and Section 12.19, not be discharged or impaired or otherwise affected by the failure of any Holder to assert any claim or demand or to enforce any remedy under this Indenture, the Note or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Guarantor Senior Subordinated Obligations; , or (h) 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 such any of the Company, eircom, Holdings or any Additional Note Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force . Subject to Section 10.5, each of the Company, eircom, Holdings and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each any Additional Note Guarantor further agrees that its each Note Guarantee herein (or, in the case of Holdings, the Subordinated Holdings Guarantee herein) shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principalprincipal of or interest, premiumor Additional Amounts, if any, or interest on any of the Guarantor Senior Subordinated Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer eircom Funding or otherwise.
(f) In . Subject to the provisions of Section 10.3 hereof, in furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any of the Company, eircom, Holdings and any Additional Note Guarantor by virtue hereof, upon the failure of the Issuer eircom Funding to pay any of the Guarantor Senior Subordinated Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each of the Company, eircom, Holdings and any Additional Note Guarantor hereby promises to and shallwill, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee for and on behalf of itself and the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Senior Subordinated Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only owing. Payments made under this guarantee shall be made to the extent not prohibited by law) (including interest accruing after Trustee on behalf of the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor Holders. The Company further agrees that, as between such Guarantorit, on the one hand, and the Holders, on the other hand, but subject always to Section 11.2 hereof, (x) the maturity of the Guarantor Senior Subordinated Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its the Note Guarantees herein (or, in the case of Holdings, the Subordinated Holdings Guarantee herein), notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Senior Subordinated Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Senior Subordinated Obligations, such Guarantor Senior Subordinated Obligations (whether or not due and payable) shall forthwith become due and payable by each of the Company, eircom, Holdings and any Additional Note Guarantor for the purposes of this Senior Subordinated Guarantee (or, in the case of Holdings, this Subordinated Holdings Guarantee.
(h) ). Each of the Company, eircom, Holdings and any Additional Note Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Sources: Senior Subordinated Indenture (Valentia Telecommunications)
Guarantees. (a) Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, to the extent lawful, and the Trustee, Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes and all other Obligations of the Issuer Issuers under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer Issuers or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall will remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer Issuers of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall will not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall will not (to the extent lawful) be discharged or impaired or otherwise affected by (ai) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (bii) any extension or renewal of any thereof; (ciii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (div) the release of any security held by any Holder for the Guarantor Obligations or any of them; (ev) the failure of any Holder to exercise any right or remedy against any other Guarantor; (fvi) any change in the ownership of the IssuerIssuers; (gvii) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (hviii) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall will remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.Article
Appears in 1 contract
Guarantees. (a) Subject By its execution hereof, each Guarantor acknowledges that it receives substantial benefits from the Issuer and that the Guarantors are providing their Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article X15, each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, severally with each other Guarantor, to each HolderHolder of the Notes, to the extent lawful, and the Trustee, Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption upon repurchase due to a Fundamental Change or otherwise, of the principal ofof (including the repurchase price upon repurchase pursuant to Article 3), premium, if any, and interest Interest on the Notes and all other Obligations obligations of the Issuer under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6indemnifications provided herein) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X 15 notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Guarantees. (a) Subject to the provisions Each of this Article XAOL and Historic TW hereby, each Guarantor hereby jointly and severally, irrevocably, fully unconditionally and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, irrevocably guarantees to the extent lawfulAdministrative Agent, for the ratable benefit of the Lenders and the Trusteetheir respective successors, indorsees, transferees and assigns, the full prompt and punctual complete payment and performance by the Designated Borrowers when due, due (whether at the stated maturity, by acceleration, by redemption acceleration or otherwise, ) of the principal of, premium, if any, and interest on the Notes and all other Obligations of the Issuer under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (Time Warner hereby unconditionally and irrevocably guarantees to the extent lawful) presentation toAdministrative Agent, demand of, payment from and protest to for the Issuer of any ratable benefit of the Guarantor Lenders and their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by TWIFL when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor ObligationsTWIFL.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of TBS and TWCI hereby, jointly and severally, unconditionally and irrevocably guarantees to the Administrative Agent, for the ratable benefit of the Lenders and their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by Historic TW when due (whether at the stated maturity, by acceleration or otherwise) of its obligations and not a liabilities under this Guarantee of collection(the "Historic TW Obligations") and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligationsincluding under Section 2(a) hereof.
(d) Except as set forth This Guarantee shall remain in full force and effect until the Obligations are paid in full, no Letter of Credit shall be outstanding (unless such Letter of Credit is cash collateralized in accordance with Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment 2.05(c) of the Guarantor Obligations in full)Credit Agreement) and the Commitments are terminated, including any claim of waiver, release, surrender, alteration notwithstanding that from time to time prior thereto either one or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason both of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) Designated Borrowers may be discharged or impaired or otherwise affected by (a) the failure of free from any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1whenever, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time paymenttime, or from time to time, it shall make any part thereofpayment to the Administrative Agent or any Lender on account of its liability hereunder, of principal, premium, if any, or interest on any of it will notify the Guarantor Obligations Administrative Agent and such Lender in writing that such payment is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwisemade under this Guarantee for such purpose.
(f) In furtherance of the foregoing and not Anything herein or in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereofCredit Document to the contrary notwithstanding, upon the failure maximum liability of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to hereunder and shall, upon receipt of written demand under the other Credit Documents shall in no event exceed the amount which can be guaranteed by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due under applicable federal and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding state laws relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed insolvency of debtors (after giving effect to the right of contribution established in such proceedingSection 3 hereof).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity No payment or payments made by either of the Designated Borrowers, any of the Guarantors, any other guarantor or any other Person or received or collected by the Administrative Agent or any Lender from either of the Designated Borrowers, any of the Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any setoff or appropriation or payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of any Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee hereinhereunder 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 or payments received or collected from such Guarantor in respect of the Obligations), remain liable for the Obligations guaranteed hereby and (y) and, in the event case of any such declaration of acceleration TBS and TWCI, the Historic TW Obligations, up to the maximum liability of such Guarantor Obligationshereunder until the Obligations are paid in full, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes no Letter of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors Credit shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any outstanding (unless such notation shall not be a condition to the validity Letter of any Guarantee.
(j) Each Guarantee shall be subject to limitations Credit is cash collaterized in accordance with local law in the jurisdiction of organization Section 2.05(c) of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (iCredit Agreement) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable lawCommitments are terminated.
Appears in 1 contract
Sources: Credit Agreement (Time Warner Inc)
Guarantees. Neither the Company nor any of its Subsidiaries shall create, incur, assume, or remain liable with respect to any Guarantees other than the following:
(a) Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, to the extent lawful, and the Trustee, the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, Guarantees in favor of the principal of, premium, if any, and interest on the Notes and all other Obligations Agent or any of the Issuer under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, its affiliates or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.Lenders hereunder;
(b) Each Guarantor waives (Guarantees existing on the date of this Agreement and disclosed on EXHIBIT C hereto or in the financial statements referred to the extent lawful) presentation to, demand of, payment from and protest to the Issuer of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.in SECTION 4.6;
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee Guarantees resulting from the endorsement of payment when due (and not a Guarantee negotiable instruments for collection in the ordinary course of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.business;
(d) Except as set forth Guarantees with respect to surety, appeal performance and return-of-money and other similar obligations incurred in Section 10.2 and Article VIII, the ordinary course of business (exclusive of obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall borrowed money) not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change exceeding in the ownership of the Issuer; (g) aggregate at any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.time $2,000,000;
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force Guarantees of normal trade debt relating to the acquisition of goods, services and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.supplies;
(f) In furtherance Guarantee of the foregoing and not obligations of Ranche Limited, doing business as Guess International pursuant to a certain Guarantee substantially in limitation the form of any other right which any Holder has at law or in equity against any Guarantor by virtue hereofEXHIBIT L hereto, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited of the aggregate face amount of outstanding letters of credit issued by law) (including interest accruing after The First National Bank of Boston for the filing benefit of Ranche Limited under the Ranche Limited Credit Facility as of November 22, 1994; and as the face amount of such outstanding letters of credit decrease, the obligations of the Company under such guarantee shall decrease by a corresponding amount; and such guarantee shall continue in effect only for so long as any petition in bankruptcy or the commencement such letters of any insolvencycredit and/or obligations with respect thereto remain outstanding, examinershipand when no such letters of credit remain outstanding and all obligations with respect thereto have been indefeasibly satisfied, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).Guarantee shall no longer be permitted hereunder;
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity Guarantees of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture obligations for the purposes loans, letters of its Guarantee herein, notwithstanding any stay, injunction credit and other extensions of credit of Guess Italia or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y▇▇▇▇▇▇▇▇ permitted under SECTION 6.1(h) which do not exceed $12,000,000 in the event aggregate, less the total face amount of any such declaration of acceleration of such Guarantor Obligationsall accounts receivable sold, such Guarantor Obligations (whether factored or not due and payable) shall forthwith become due and payable pledged by Guess Italia or ▇▇▇▇▇▇▇▇ to lenders to the Guarantor for the purposes of this Guarantee.extent permitted under SECTION 6.5(i); and
(h) Each Guarantor also agrees Guarantees of loans and other borrowings obtained by any of the Company's Subsidiaries not to pay any and all reasonable costs and expenses (including reasonable attorneys’ feesexceed $40,000,000 in the aggregate less Guaranties under SECTION 6.2(g) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses other amount as are described in the Offering Memorandum under the caption “Limitations listed on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.EXHIBIT C.
Appears in 1 contract
Guarantees. (a) Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, to the extent lawful, and the Trustee, Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes and all other Obligations of the Issuer under this Indenture and the Notes (including, without limitation, including interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall will remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall will not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall will not (to the extent lawful) be discharged or impaired or otherwise affected by (ai) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (bii) any extension or renewal of any thereof; (ciii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (div) the release of any security held by any Holder for the Guarantor Obligations or any of them; (ev) the failure of any Holder to exercise any right or remedy against any other Guarantor; (fvi) any change in the ownership of the Issuer; (gvii) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (hviii) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall will remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principalprincipal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall will become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and shallwill, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (xi) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (yii) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall will forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall will be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall will not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Sources: Indenture (Leslie's, Inc.)
Guarantees. (a) Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, to the extent lawful, and the Trustee, the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal ofof and, premium, if any, and interest on the Notes and all other Obligations of the Issuer under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principalprincipal of and, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Guarantees. (a) Subject to the provisions of this Article XThirteen, each Guarantor hereby Guarantor, hereby, jointly and severally, irrevocably, fully and unconditionally guarantees, on as a senior unsecured basis, as guarantor primary obligor and not merely as a surety, with each other Guarantorunconditionally and irrevocably, Guarantees to each Holder, to the extent lawful, Holder and the Trustee, the full Indenture Obligations including, without limitation, the prompt and punctual complete payment and performance by the Issuer and each other Guarantor when due, due (whether at the stated maturity, by acceleration, by redemption or otherwise, ) of the principal of, premium, if any, and interest interest, if any, on the Notes Securities and all other Obligations obligations and liabilities of the Issuer under this Indenture and the Notes (including, including without limitation, limitation interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.66.07) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees that the Guarantor Obligations shall rank equally in right of payment with other senior secured Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations. Each Guarantor further agrees (to the extent lawfulpermitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall will remain bound under this Article X Thirteen notwithstanding any extension or renewal of any Guarantor Obligation.
(b) . Each Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuer of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpaymentnon-payment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes Securities or the Guarantor Obligations.
(c) . Each Guarantor further agrees (subject (in the case of the Guarantors identified thereon) to the provisions of Section 13.06) that its Guarantee herein constitutes a an absolute, irrevocable and unconditional Guarantee of payment when due (and is not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) . Except as set forth in Section 10.2 13.02 (and Article VIIIexcept, in the case of the Guarantors identified therein, as set forth in the provisions of Section 13.06), the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in fullfull (or pursuant to Sections 8.01 or 10.13(c))), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under person under, this Indenture, the Notes Securities or any other agreement or otherwise; (b) any extension or renewal of any thereofgranted; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Securities or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each . Subject to the provisions of Sections 8.01, 10.13 and 10.14, each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIIISections 8.01 or 10.13 hereof (as applicable). Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, principal of or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy insolvency, bankruptcy, dissolution, liquidation or reorganization of the Issuer or any other Guarantor or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the Issuer or any other Guarantor or any substantial part of its property, or otherwise.
(f) , all as though such payments had not been made. In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and shallwill, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) . Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) . Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ feescounsel fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer nor . Each of the Guarantors hereby agrees that its Guarantee of the Securities shall be required remain in full force and effect notwithstanding any failure to make endorse on each Security a notation of such Guarantee. If an officer of a Guarantor whose signature is on this Indenture or a Guarantee no longer holds that office at the Notes to reflect time the Trustee authenticates the Security on which such Guarantee is endorsed or at any time thereafter, such Guarantor’s Guarantee of such Security shall nevertheless be valid, The delivery of any Security by the Trustee, after the authentication thereof hereunder shall constitute due delivery of any Guarantee set forth in this Indenture on behalf of each Guarantor. Each Guarantor (a) assumes all responsibility for being and keeping itself informed of the financial condition and assets of any other Guarantor, and of all other circumstances bearing upon the risk of nonpayment of the Guarantor Obligations and the nature, scope and extent of the risks that such Guarantor assumes and incurs hereunder, and (b) agrees that the Trustee will not have any duty to advise such Guarantor of information known to it or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in regarding such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable lawcircumstances or risks.
Appears in 1 contract
Sources: Consent Agreement (Blyth Inc)
Guarantees. (a) Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each HolderHolder of the Notes, to the extent lawful, and the Trustee, Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes and all other Obligations of the Issuer Issuers under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer Issuers or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer Issuers of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (ai) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (bii) any extension or renewal of any thereof; (ciii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (div) the release of any security held by any Holder for the Guarantor Obligations or any of them; (ev) the failure of any Holder to exercise any right or remedy against any other Guarantor; (fvi) any change in the ownership of the IssuerIssuers; (gvii) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (hviii) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principalprincipal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer Issuers to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer Issuers or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither None of the Issuer nor Issuers or the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security InterestsGuarantees” and (iii) other considerations under applicable law.
(k) If and to the extent that a Guarantor incorporated in Switzerland (a “Swiss Guarantor”) is liable under the Guarantees or any other provision of the Notes or this Indenture, for obligations other than obligations of one of its wholly owned subsidiaries (being obligations of its direct or indirect parent companies (an up-stream guarantee) or other group companies except fully owned direct or indirect subsidiaries of each Swiss Guarantor (a cross-stream guarantee)) (for purposes of this clause (k), the “Restricted Obligations”), and that the making of a payment in fulfilling Restricted Obligations would under Swiss law (inter alia, prohibiting capital repayments or restricting distributions) at the time payment is due, not be permitted, then such obligations and payment amount shall from time to time be limited to the amount permitted to be paid under Swiss law; such amount currently considered to be the equivalent of the Swiss Guarantor’s distributable capital at the time or times payment is requested from the relevant Swiss Guarantor, and further provided that such limitation (as may apply from time to time or not) shall not (generally or definitively) release such Swiss Guarantor from payment obligations hereunder in excess thereof, but merely postpone the payment date therefore until such times as payment is again permitted notwithstanding such limitation. Any and all indemnities and guarantees contained in the Notes or this Indenture shall be construed in a manner consistent with the provisos herein contained. In case a Swiss Guarantor who must make a payment in respect of Restricted Obligations under its Guarantee is obliged to withhold Swiss Withholding Tax (Verrechnungssteuer) in respect of such payment, such Swiss Guarantor shall:
(i) procure that such payments can be made without deduction of Swiss Withholding Tax, or with deduction of Swiss Withholding Tax at a reduced rate, by discharging the liability to such tax by notification pursuant to applicable law (including double tax treaties) rather than payment of the tax;
(ii) if the notification procedure pursuant to sub-paragraph (i) above does not apply, deduct Swiss Withholding Tax at the rate of 35% (or such other rate as in force from time to time), or if the notification procedure pursuant to sub-paragraph (i) above applies for a part of the Swiss Withholding Tax only, deduct Swiss Withholding Tax at the reduced rate resulting after the discharge of part of such tax by notification under applicable law, from any payment made by it in respect of Restricted Obligations and promptly pay any such taxes to the Swiss Federal Tax Administration (Eidgenössische Steuerverwaltung);
(iii) notify the Trustee that such notification, or as the case may be, deduction has been made and provide the Trustee with evidence that such a notification of the Swiss Federal Tax Administration has been made or, as the case may be, such taxes deducted have been paid to the Swiss Federal Tax Administration;
(iv) in the case of a deduction of Swiss Withholding Tax:
(1) use its best efforts to ensure that any Person other than the Trustee which is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such payment in respect of Restricted Obligations, will, as soon as possible after such deduction (A) request a refund of the Swiss Withholding Tax under applicable law (including tax treaties) and (B) pay to the Trustee upon receipt any amounts so refunded; and
(2) if the Trustee is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such payment, shall provide the Trustee those documents that are required by law and applicable tax treaties to be provided by the payer of such tax, in order to enable the Trustee to prepare a claim for refund of Swiss Withholding Tax.
Appears in 1 contract
Guarantees. (a) Subject to the provisions of this Article XThirteen, each Guarantor hereby Guarantor, hereby, jointly and severally, irrevocably, fully and unconditionally guarantees, on as a senior unsecured basis, as guarantor primary obligor and not merely as a surety, with each other Guarantorunconditionally and irrevocably, Guarantees to each Holder, to the extent lawful, Holder and the Trustee, the full Indenture Obligations including, without limitation, the prompt and punctual complete payment and performance by the Issuer and each other Guarantor when due, due (whether at the stated maturity, by acceleration, by redemption or otherwise, ) of the principal of, premium, if any, and interest interest, if any, on the Notes Securities and all other Obligations obligations and liabilities of the Issuer under this Indenture and the Notes (including, including without limitation, limitation interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.66.07) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees that the Guarantor Obligations shall rank equally in right of payment with other senior secured Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations. Each Guarantor further agrees (to the extent lawfulpermitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall will remain bound under this Article X Thirteen notwithstanding any extension or renewal of any Guarantor Obligation.
(b) . Each Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuer of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpaymentnon-payment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes Securities or the Guarantor Obligations.
(c) . Each Guarantor further agrees (subject (in the case of the Guarantors identified thereon) to the provisions of Section 13.06) that its Guarantee herein constitutes a an absolute, irrevocable and unconditional Guarantee of payment when due (and is not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) . Except as set forth in Section 10.2 13.02 (and Article VIIIexcept, in the case of the Guarantors identified therein, as set forth in the provisions of Section 13.06), the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in fullfull (or pursuant to Sections 8.01 or 10.13(c))), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under person under, this Indenture, the Notes Securities or any other agreement or otherwise; (b) any extension or renewal of any thereofgranted; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Securities or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each . Subject to the provisions of Sections 8.01, 10.13 and 10.14, each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.Sections 8.01 or
Appears in 1 contract
Sources: Supplemental Indenture (Blyth Inc)
Guarantees. (a) Subject to the provisions of this Article X, each Each Guarantor hereby jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, guarantees on a senior unsecured secured basis, as guarantor a primary obligor and not merely as a surety, with each other Guarantor, to each Holder, to the extent lawful, Holder and the Trustee, Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration, by redemption acceleration or otherwise, of all obligations of the Issuer under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, and or interest on on, if any, the Notes and all other Obligations monetary obligations of the Issuer under this Indenture and the Notes and (including, without limitation, interest accruing after ii) the filing full and punctual performance within applicable grace periods of any petition in bankruptcy, or the commencement all other obligations of any insolvency, reorganization or like proceeding, relating to the Issuer whether for fees, expenses, indemnification or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding otherwise under this Indenture and the obligations under Section 7.6) Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guarantor Guaranteed Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it each such Guarantor shall remain bound under this Article X Ten notwithstanding any extension or renewal of any Guarantor Guaranteed Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuer of any of the Guarantor Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Guaranteed Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guarantor Guaranteed Obligations.
(d) Except as expressly set forth in Section 10.2 Sections 8.01(b), 10.02, 10.03 and Article VIII10.06, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIIIGuaranteed Obligations. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, principal of or interest on any of the Guarantor Obligations Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay the principal of or interest on any of the Guarantor Obligations 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 Trustee (or the Trustee on behalf of the Holders its designee) an amount equal to the sum of (i) the unpaid principal amount of such Guarantor Obligations then due and owing and Guaranteed Obligations, (ii) accrued and unpaid interest on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after iii) all other monetary obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating Issuer to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)Trustee.
(g) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Trustee in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between such Guarantorit, on the one hand, and the HoldersTrustee, on the other hand, (x) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture Article Six for the purposes of its any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Guaranteed Obligations guaranteed hereby hereby, and (yii) in the event of any such declaration of acceleration of such Guarantor ObligationsGuaranteed Obligations as provided in Article Six, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the such Guarantor for the purposes of this GuaranteeSection 10.01.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ feesfees and expenses) incurred by the Trustee or the Holders any Holder in enforcing any rights under this SectionSection 10.01. Each Guarantor shall promptly execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Sources: Indenture (Kronos Worldwide Inc)
Guarantees. (a) Subject to the provisions Each of this Article XAOL and Historic TW hereby, each Guarantor hereby jointly and severally, irrevocably, fully unconditionally and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, irrevocably guarantees to the extent lawfulAdministrative Agent, for the ratable benefit of the Lenders and the Trusteetheir respective successors, indorsees, transferees and assigns, the full prompt and punctual complete payment and performance by the Designated Borrowers when due, due (whether at the stated maturity, by acceleration, by redemption acceleration or otherwise, ) of the principal of, premium, if any, and interest on the Notes and all other Obligations of the Issuer under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (Time Warner hereby unconditionally and irrevocably guarantees to the extent lawful) presentation toAdministrative Agent, demand of, payment from and protest to for the Issuer of any ratable benefit of the Guarantor Lenders and their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by TWFI when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor ObligationsTWFI.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of TBS and TWCI hereby, jointly and severally, unconditionally and irrevocably guarantees to the Administrative Agent, for the ratable benefit of the Lenders and their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by Historic TW when due (whether at the stated maturity, by acceleration or otherwise) of its obligations and not a liabilities under this Guarantee of collection(the "Historic TW Obligations") and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligationsincluding under Section 2(a) hereof.
(d) Except as set forth This Guarantee shall remain in full force and effect until the Obligations are paid in full, no Letter of Credit shall be outstanding (unless such Letter of Credit is cash collateralized in accordance with Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment 2.05(c) of the Guarantor Obligations in full)Credit Agreement) and the Commitments are terminated, including any claim of waiver, release, surrender, alteration notwithstanding that from time to time prior thereto either one or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason both of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) Designated Borrowers may be discharged or impaired or otherwise affected by (a) the failure of free from any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1whenever, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time paymenttime, or from time to time, it shall make any part thereofpayment to the Administrative Agent or any Lender on account of its liability hereunder, of principal, premium, if any, or interest on any of it will notify the Guarantor Obligations Administrative Agent and such Lender in writing that such payment is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwisemade under this Guarantee for such purpose.
(f) In furtherance of the foregoing and not Anything herein or in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereofCredit Document to the contrary notwithstanding, upon the failure maximum liability of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to hereunder and shall, upon receipt of written demand under the other Credit Documents shall in no event exceed the amount which can be guaranteed by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due under applicable federal and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding state laws relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed insolvency of debtors (after giving effect to the right of contribution established in such proceedingSection 3 hereof).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity No payment or payments made by either of the Designated Borrowers, any of the Guarantors, any other guarantor or any other Person or received or collected by the Administrative Agent or any Lender from either of the Designated Borrowers, any of the Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any setoff or appropriation or payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of any Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee hereinhereunder 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 or payments received or collected from such Guarantor in respect of the Obligations), remain liable for the Obligations guaranteed hereby and (y) and, in the event case of any such declaration of acceleration TBS and TWCI, the Historic TW Obligations, up to the maximum liability of such Guarantor Obligationshereunder until the Obligations are paid in full, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes no Letter of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors Credit shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any outstanding (unless such notation shall not be a condition to the validity Letter of any Guarantee.
(j) Each Guarantee shall be subject to limitations Credit is cash collaterized in accordance with local law in the jurisdiction of organization Section 2.05(c) of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (iCredit Agreement) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable lawCommitments are terminated.
Appears in 1 contract
Sources: Credit Agreement (Time Warner Inc)
Guarantees. (a) Subject to the provisions of this Article X, each Each Guarantor hereby jointly and severally, irrevocably, fully severally irrevocably and unconditionally guarantees, guarantees as a primary obligor and not merely as a surety on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, basis to each Holder, Holder and to the extent lawful, Indenture Trustee and the Trustee, its successors and assigns (i) the full and punctual payment when due, whether at maturitythe Final Maturity Date, by acceleration, by redemption or otherwise, of all obligations of the Issuer under this Indenture (including obligations to the Indenture Trustee and the Notes, whether for payment of principal of, or premium, if any, and or interest on on, the Notes and all other Obligations monetary obligations of the Issuer under this Indenture and the Notes Notes, and (includingii) the full and punctual performance within applicable grace periods of all other obligations of the Issuer, without limitationwhether for fees, interest accruing after the filing of any petition in bankruptcyexpenses, indemnification or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding otherwise under this Indenture and the obligations under Section 7.6) Notes (all the foregoing being hereinafter collectively called the “Guarantor Guaranteed Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it each such Guarantor shall remain bound under this Article X 9 notwithstanding any extension or renewal of any Guaranteed Obligation. The Guaranteed Obligations of a Guarantor Obligationwill be secured by security interests (subject to Permitted Liens) in the Collateral owned by such Guarantor to the extent provided for in the Security Documents and as required pursuant to Sections 4.08 and 4.09.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuer of any of the Guarantor Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (i) the failure of any Holder or the Indenture Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes, any Security Document, or any other agreement or otherwise; (ii) any extension or renewal of this Indenture, the Notes, any Security Document or any other agreement; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes, any Security Document or any other agreement; (iv) the release of any security held by any Holder or the Indenture Trustee for the Guaranteed Obligations or any Guarantor; (v) the failure of any Holder or the Indenture Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (vi) any change in the ownership of such Guarantor, except as provided in Section 9.02(b).
(c) Each Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Guarantors, such that such Guarantor’s obligations would be less than the full amount claimed. Each Guarantor hereby waives any right to which it may be entitled to have the assets of the Issuer or any other Guarantor first be used and depleted as payment of the Issuer’s or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder. Each Guarantor hereby waives any right to which it may be entitled to require that the Issuer be sued prior to an action being initiated against such Guarantor.
(d) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee guarantee of collection) and waives any right to require that any resort be had by any Holder or the Indenture Trustee to any security held for payment of the Guarantor Guaranteed Obligations.
(de) Except as expressly set forth in Section 10.2 Sections 7.01 and Article VIII9.02, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Indenture Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes Notes, any Security Document or any other agreement or otherwise; (b) agreement, by any extension or renewal of any thereof; (c) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenturethereof, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; obligations, or (h) 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 such any Guarantor as a matter of law or equity.
(ef) Each Except as expressly set forth in Sections 7.01 and 9.02, each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee Guaranteed Obligations. Except as expressly set forth in compliance with Section 4.1Sections 7.01 and 9.02, Section 10.2 and Article VIII. Each each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, principal of or interest on any of the Guarantor Obligations Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Indenture Trustee upon the bankruptcy or reorganization of the Issuer or otherwise.
(fg) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Indenture Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay the principal of or interest on any of the Guarantor Obligations Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the TrusteeIndenture Trustee in accordance with this Indenture, forthwith pay, or cause to be paid, in cash, to the Trustee Holders or the Indenture Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guarantor Obligations then due and owing and Guaranteed Obligations, (ii) accrued and unpaid interest on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after iii) all other monetary obligations of the filing of any petition in bankruptcy Issuer then due to the Holders or the commencement Indenture Trustee in respect of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)Guaranteed Obligations.
(gh) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between such Guarantorit, on the one hand, and the HoldersHolders and the Indenture Trustee, on the other hand, (xi) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture Article 5 for the purposes of its any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Guaranteed Obligations guaranteed hereby hereby, and (yii) in the event of any such declaration of acceleration of such Guarantor ObligationsGuaranteed Obligations as provided in Article 5, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the such Guarantor for the purposes of this GuaranteeSection 9.01.
(hi) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ feesfees and expenses) incurred by the Indenture Trustee or the Holders any Holder in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any GuaranteeSection 9.01.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization Upon request of the applicable Indenture Trustee, each Guarantor shall execute and defenses generally available deliver such further instruments and do such further acts as may be reasonably necessary or proper to guarantors in such jurisdiction. For carry out more effectively the avoidance purpose of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable lawthis Indenture.
Appears in 1 contract
Sources: Indenture (Imperial Holdings, Inc.)
Guarantees. (a) Subject to the provisions of this Article X, each Each Guarantor hereby jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, guarantees on a senior an unsecured basis, as guarantor a primary obligor and not merely as a surety, with each other Guarantor, to each Holder, to the extent lawful, Holder and the Trustee, Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration, by redemption acceleration or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, and or interest on on, if any, the Notes and all other Obligations monetary obligations of the Issuer Company under this Indenture and the Notes and (includingii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, without limitationexpenses, interest accruing after the filing of any petition in bankruptcy, indemnification or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding otherwise under this Indenture and the obligations under Section 7.6) Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guarantor Guaranteed Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it each such Guarantor shall remain bound under this Article X 10 notwithstanding any extension or renewal of any Guarantor Guaranteed Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuer Company of any of the Guarantor Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Guaranteed Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guarantor Guaranteed Obligations.
(d) Except as expressly set forth in Section 10.2 Sections 8.01(b), 10.02 and Article VIII10.06, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subject to Section 10.02 hereof, each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIIIGuaranteed Obligations. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, principal of or interest on any of the Guarantor Obligations Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuer Company or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer Company to pay the principal of or interest on any of the Guarantor Obligations 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guarantor Obligations then due and owing and Guaranteed Obligations, (ii) accrued and unpaid interest on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after iii) all other monetary obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating Company to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)Trustee.
(g) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Trustee in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between such Guarantorit, on the one hand, and the HoldersTrustee, on the other hand, (xi) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture Article 6 for the purposes of its any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Guaranteed Obligations guaranteed hereby hereby, and (yii) in the event of any such declaration of acceleration of such Guarantor ObligationsGuaranteed Obligations as provided in Article 6, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the such Guarantor for the purposes of this GuaranteeSection 10.01.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ feesfees and expenses) incurred by the Trustee or the Holders any Holder in enforcing any rights under this SectionSection 10.01. Each Guarantor shall promptly execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Guarantees. (a) Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each HolderHolder of the Notes, to the extent lawful, and the Trustee, Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes and all other Obligations of the Issuer under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principalprincipal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither None of the Issuer nor or the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
(k) If and to the extent that a Guarantor incorporated in Switzerland (a “Swiss Guarantor”) is liable under the Guarantees or any other provision of the Notes or this Indenture, for obligations other than obligations of one of its wholly owned subsidiaries (being obligations of its direct or indirect parent companies (an up-stream guarantee) or sister companies (a cross-stream guarantee)) (for purposes of this clause (k), the “Restricted Obligations”), and that the making of a payment in fulfilling Restricted Obligations would under Swiss corporate law (inter alia, prohibiting capital repayments or restricting distributions) at the time payment is due, not be permitted, then such obligations and payment amount shall from time to time be limited to the amount permitted to be paid under Swiss corporate law; provided that such limited amount shall at no time be less than such Swiss Guarantor’s distributable capital at the time or times payment is requested from the relevant Swiss Guarantor, and further provided that such limitation (as may apply from time to time or not) shall not (generally or definitively) release such Swiss Guarantor from payment obligations hereunder in excess thereof, but merely postpone the payment date therefore until such times as payment is again permitted notwithstanding such limitation. Any and all indemnities and guarantees contained in the Notes or this Indenture shall be construed in a manner consistent with the provisos herein contained. In case a Swiss Guarantor who must make a payment in respect of Restricted Obligations under its Guarantee is obliged to withhold Swiss Withholding Tax (Verrechnungssteuer) in respect of such payment, such Swiss Guarantor shall:
(i) procure that such payments can be made without deduction of Swiss Withholding Tax, or with deduction of Swiss Withholding Tax at a reduced rate, by discharging the liability to such tax by notification pursuant to applicable law (including double tax treaties) rather than payment of the tax;
(ii) if the notification procedure pursuant to sub-paragraph (i) above does not apply, deduct Swiss Withholding Tax at the rate of 35% (or such other rate as in force from time to time), or if the notification procedure pursuant to sub-paragraph (i) above applies for a part of the Swiss Withholding Tax only, deduct Swiss Withholding Tax at the reduced rate resulting after the discharge of part of such tax by notification under applicable law, from any payment made by it in respect of Restricted Obligations and promptly pay any such taxes to the Swiss Federal Tax Administration (Eidgenössische Steuerverwaltung);
(iii) notify the Trustee that such notification, or as the case may be, deduction has been made and provide the Trustee with evidence that such a notification of the Swiss Federal Tax Administration has been made or, as the case may be, such taxes deducted have been paid to the Swiss Federal Tax Administration;
(iv) in the case of a deduction of Swiss Withholding Tax:
(1) use its best efforts to ensure that any Person other than the Trustee which is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such payment in respect of Restricted Obligations, will, as soon as possible after such deduction (A) request a refund of the Swiss Withholding Tax under applicable law (including tax treaties) and (B) pay to the Trustee upon receipt any amounts so refunded; and
(2) if the Trustee is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such payment, shall provide the Trustee those documents that are required by law and applicable tax treaties to be provided by the payer of such tax, in order to enable the Trustee to prepare a claim for refund of Swiss Withholding Tax. If a Swiss Guarantor is obliged to withhold Swiss Withholding Tax in accordance with the previous paragraph (b) above, the Trustee shall be entitled to further enforce the Guarantees or any other indemnity granted by the respective Swiss Guarantor under the Notes or this Indenture and apply proceeds therefrom against the Restricted Obligations up to an amount which is equal to that amount which would have been obtained if no withholding of Swiss Withholding Tax were required, whereby such further enforcements shall always be limited to the maximum amount of the freely distributable capital of the respective Swiss Guarantor as set out in paragraph (a) above. If and to the extent a demand for payment against a Swiss Guarantor is made by the Trustee and if and to the extent required under Swiss mandatory law (with regards to restricting distributions) applicable at the relevant time, in order to allow the Trustee to obtain a maximum benefit under the Guarantees, the relevant Swiss Guarantor shall, and any parent company of the Swiss Guarantor being a party to this Indenture shall procure that the Swiss Guarantor will, promptly implement all such measures and/or promptly procure the fulfillment of all prerequisites allowing it to promptly make the (requested) payment(s) hereunder from time to time, including the following:
(i) preparation of an up-to-date audited balance sheet of the Swiss Guarantor;
(ii) obtain a confirmation of the auditors of the Swiss Guarantor confirming the maximum amount of the freely distributable capital of the relevant Swiss Guarantor;
(iii) approval by a shareholders’ meeting of the Swiss Guarantor of the capital distribution;
(iv) to the extent permitted by applicable law write up or realize any of the Swiss Guarantor’s assets that are shown in its balance sheet with a book value that is significantly lower than the market value of the assets, in case of realization, however, only if such assets are not necessary for the Swiss Guarantor’s business (nicht betriebsnotwendig); and
(v) all such other measures necessary or useful to allow the Swiss Guarantor to make the payments and perform the obligations hereunder with a minimum of limitations.
(l) The obligations and liabilities of each Guarantor incorporated in Sweden (each a “Swedish Guarantor”) incurred under its Guarantee shall be limited if (and only if) and to the extent required by the provisions of the Swedish Companies Act (Sw. Aktiebolagslagen (2005:551)) regulating (i) distribution of assets (Chapter 17, Sections 1-4 (or its equivalent from time to time)) and (ii) unlawful financial assistance and other prohibited loans and guarantees (Chapter 21, Section 5 (or its equivalent from time to time)), and it is understood that the obligations and liabilities of each Swedish Guarantor in its capacity as Guarantor under its Guarantee only applies to the extent permitted by the aforementioned provisions of the Swedish Companies Act.
(m) The obligations and liabilities of any Guarantor incorporated in France (each such Guarantor, a “French Guarantor”) under the Notes or this Indenture and in particular under this Article X shall not include any obligation or liability which, if incurred, would constitute the provision of financial assistance within the meaning of article L.225-216 of the French Code de Commerce and/or would constitute a misuse of corporate assets within the meaning of articles L.242-6 or L.244-1 of the French Code de Commerce or any other law or regulation having the same effect, as interpreted by French courts.
Appears in 1 contract
Guarantees. (a) Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each HolderHolder of the Notes, to the extent lawful, and the Trustee, Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes and all other Obligations of the Issuer under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer Issuer, or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Without prejudice to the foregoing, any Guarantor incorporated under the laws of the Federative Republic of Brazil further waives and renounces, to the fullest extent permitted by applicable law, any and all rights and/or benefits it may have under Articles 333, sole paragraph, 366, 827, 829, 830, 834, 835, 837, 838 and 839 of Law No. 10,406, dated January 10, 2002, as amended from time to time, and Articles 130 and 794 of Law No. 13,105, dated March 16, 2015, as amended from time to time.
(d) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(de) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(ef) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII, as applicable. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principalprincipal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(fg) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(gh) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(hi) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this SectionSection 10.1.
(ij) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Sources: Indenture (Sylvamo Corp)
Guarantees. (a) Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each HolderHolder of the Notes, to the extent lawful, and the Trustee, Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes and all other Obligations of the Issuer under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Sources: Supplemental Indenture (Axalta Coating Systems Ltd.)
Guarantees. (a) Subject to the provisions of this Article X, each Each Guarantor hereby jointly and severally, irrevocably, fully severally irrevocably and unconditionally guarantees, guarantees as a primary obligor and not merely as a surety on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, basis to each Holder, Holder and to the extent lawful, Indenture Trustee and the Trustee, its successors and assigns (i) the full and punctual payment when due, whether at maturitythe Final Maturity Date, by acceleration, by redemption or otherwise, of all obligations of the Issuer under this Indenture (including obligations to the Indenture Trustee and the Notes, whether for payment of principal of, or premium, if any, and or interest on on, the Notes and all other Obligations monetary obligations of the Issuer under this Indenture and the Notes Notes, and (includingii) the full and punctual performance within applicable grace periods of all other obligations of the Issuer, without limitationwhether for fees, interest accruing after the filing of any petition in bankruptcyexpenses, indemnification or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding otherwise under this Indenture and the obligations under Section 7.6) Notes (all the foregoing being hereinafter collectively called the “Guarantor Guaranteed Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it each such Guarantor shall remain bound under this Article X 9 notwithstanding any extension or renewal of any Guaranteed Obligation. The Guaranteed Obligations of a Guarantor Obligationwill be secured by security interests (subject to Permitted Liens) in the Collateral owned by such Guarantor to the extent provided for in the Security Documents and as required pursuant to Sections 4.08, 4.09 and 4.18.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuer of any of the Guarantor Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (i) the failure of any Holder or the Indenture Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes, any Security Document, or any other agreement or otherwise; (ii) any extension or renewal of this Indenture, the Notes, any Security Document or any other agreement; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes, any Security Document or any other agreement; (iv) the release of any security held by any Holder or the Indenture Trustee for the Guaranteed Obligations or any Guarantor; (v) the failure of any Holder or the Indenture Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (vi) any change in the ownership of such Guarantor, except as provided in Section 9.02(b).
(c) Each Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Guarantors, such that such Guarantor’s obligations would be less than the full amount claimed. Each Guarantor hereby waives any right to which it may be entitled to have the assets of the Issuer or any other Guarantor first be used and depleted as payment of the Issuer’s or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder. Each Guarantor hereby waives any right to which it may be entitled to require that the Issuer be sued prior to an action being initiated against such Guarantor.
(d) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee guarantee of collection) and waives any right to require that any resort be had by any Holder or the Indenture Trustee to any security held for payment of the Guarantor Guaranteed Obligations.
(de) Except as expressly set forth in Section 10.2 Sections 7.01 and Article VIII9.02, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Indenture Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes Notes, any Security Document or any other agreement or otherwise; (b) agreement, by any extension or renewal of any thereof; (c) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenturethereof, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; obligations, or (h) 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 such any Guarantor as a matter of law or equity.
(ef) Each Except as expressly set forth in Sections 7.01 and 9.02, each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee Guaranteed Obligations. Except as expressly set forth in compliance with Section 4.1Sections 7.01 and 9.02, Section 10.2 and Article VIII. Each each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, principal of or interest on any of the Guarantor Obligations Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Indenture Trustee upon the bankruptcy or reorganization of the Issuer or otherwise.
(fg) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Indenture Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay the principal of or interest on any of the Guarantor Obligations Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the TrusteeIndenture Trustee in accordance with this Indenture, forthwith pay, or cause to be paid, in cash, to the Trustee Holders or the Indenture Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guarantor Obligations then due and owing and Guaranteed Obligations, (ii) accrued and unpaid interest on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after iii) all other monetary obligations of the filing of any petition in bankruptcy Issuer then due to the Holders or the commencement Indenture Trustee in respect of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)Guaranteed Obligations.
(gh) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between such Guarantorit, on the one hand, and the HoldersHolders and the Indenture Trustee, on the other hand, (xi) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture Article 5 for the purposes of its any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Guaranteed Obligations guaranteed hereby hereby, and (yii) in the event of any such declaration of acceleration of such Guarantor ObligationsGuaranteed Obligations as provided in Article 5, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the such Guarantor for the purposes of this GuaranteeSection 9.01.
(hi) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ feesfees and expenses) incurred by the Indenture Trustee or the Holders any Holder in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any GuaranteeSection 9.01.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization Upon request of the applicable Indenture Trustee, each Guarantor shall execute and defenses generally available deliver such further instruments and do such further acts as may be reasonably necessary or proper to guarantors in such jurisdiction. For carry out more effectively the avoidance purpose of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable lawthis Indenture.
Appears in 1 contract
Sources: Indenture (Imperial Holdings, Inc.)
Guarantees. (a) Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, to the extent lawful, and the Trustee, the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes and all other Obligations of the Issuer Issuers under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer Issuers or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer Issuers of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the IssuerIssuers; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principalprincipal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer Issuers to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee Trustee, the Agents or the Trustee on behalf of the Holders and such Agents an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer Issuers or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer Issuers nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Guarantees. To the extent any Guaranteed Securities are Outstanding, the Guarantor hereby irrevocably, unconditionally, and absolutely guarantees, jointly and severally and on a continuing basis, to each Holder of such Guaranteed Securities as and for the Guarantor’s own debt, until final and indefeasible payment of the amounts referred to in Clause (a) Subject to below have been made:
(a) the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, to the extent lawful, and the Trustee, the full due and punctual payment of principal of and interest on the Guaranteed Securities at any time outstanding and the due and punctual payment of all other amounts payable, and all other amounts owing, by the Company to the Holders of the Guaranteed Securities under this Indenture and the Guaranteed Securities (including, without limitation, any Additional Amounts which may be owing to any of the Holders of Guaranteed Securities pursuant to the terms of Section 10.5 hereof), in each case when dueand as the same shall become due and payable, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes otherwise and all other Obligations monetary obligations of the Issuer Company hereunder, all in accordance with the terms and provisions hereof and thereof; and
(b) the punctual and faithful performance, keeping, observance and fulfillment by the Company of all duties, agreements, covenants and obligations of the Company under this Indenture and the Notes (including, without limitation, interest accruing after the filing Guaranteed Securities. All of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under set forth in Clause (a) and Clause (b) of this Section 7.6) (all the foregoing being hereinafter collectively called 15.1 are referred to herein as the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewedGuarantees.” Such Guarantees will constitute guarantees of payment, in whole or in part, without notice or further assent from it, performance and that it shall remain bound under this Article X notwithstanding any extension or renewal compliance and not merely of any Guarantor Obligationcollection.
(bc) Each The Guarantor waives (further agrees to the extent lawful) presentation waive presentment to, demand of, of payment from and protest to the Issuer of Company or any of the Guarantor Obligations other Person, and also waives (to the extent lawful) diligence, notice of acceptance of its Guarantee, presentment, demand for payment, notice of protest for nonpayment. Each Guarantor waives (to , the extent lawful) notice filing of claims with a court in the event of merger or bankruptcy of the Company or any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (other Person and not a Guarantee of collection) and waives any right to require that a proceeding first against the Company or any resort be had by any Holder to any security held for payment other Person. The obligations of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to affected by any reduction, limitation, impairment failure or termination for any reason (other than payment policy on the part of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against under this Indenture or the Guaranteed Securities of any other Guarantor; series.
(fd) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance The obligation of the Guarantor Obligations; to make any payment hereunder may be satisfied by causing the Company or (h) any other act Person to make such payment. If any Holder of any Guaranteed Security or thing the Trustee is required by any court or omission otherwise to return to the Company or delay to do the Guarantor, or any custodian, trustee, liquidator or other act or thing which may or might similar official acting in any manner or relation to any of the Company or the Guarantor, any amount paid by any of them to the Trustee or such Holder, the Guarantee of the Guarantor, to the extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equitytheretofore discharged, shall be reinstated in full force and effect.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each The Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders any Holder of Guaranteed Securities in enforcing any of their respective rights under this Sectionits Guarantees.
(if) Neither Any term or provision of this Indenture to the Issuer nor contrary notwithstanding, the Guarantors shall be required to make a notation on maximum aggregate amount of the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation Guarantees shall not exceed the maximum amount that can be a condition to guaranteed by the validity of any Guarantee.
(j) Each Guarantor without rendering the Guarantee shall be subject to limitations in accordance with local under this Indenture voidable under applicable law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related relating to fraudulent conveyance, conveyance or fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and transfer or similar laws, regulations and defenses laws affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Sources: Indenture (Carnival UK Ltd.)
Guarantees. (a) Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, to the extent lawful, and the Trustee, the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes and all other Obligations of the Issuer Issuers under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer Issuers or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer Issuers of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the IssuerIssuers; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principalprincipal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer Issuers to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer Issuers or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer Issuers nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Sources: Indenture (PPD, Inc.)
Guarantees. (a) Subject to the provisions of this Article X, each Each Guarantor hereby jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, guarantees on a senior an unsecured basis, as guarantor a primary obligor and not merely as a surety, with each other Guarantor, to each Holder, to the extent lawful, Holder and the Trustee, Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration, by redemption acceleration or otherwise, of all obligations of the Issuer under this Indenture (including obligations to the Trustee) and the Securities, whether for payment of principal of, premium, if any, and or interest on on, if any, the Notes Securities and all other Obligations monetary obligations of the Issuer under this Indenture and the Notes Securities and (including, without limitation, interest accruing after ii) the filing full and punctual performance within applicable grace periods of any petition in bankruptcy, or the commencement all other obligations of any insolvency, reorganization or like proceeding, relating to the Issuer whether for fees, expenses, indemnification or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding otherwise under this Indenture and the obligations under Section 7.6) Securities, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guarantor Guaranteed Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it each such Guarantor shall remain bound under this Article X 10 notwithstanding any extension or renewal of any Guarantor Guaranteed Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuer of any of the Guarantor Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes Securities or the Guarantor Guaranteed Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guarantor Guaranteed Obligations.
(d) Except as expressly set forth in Section 10.2 Sections 8.01(b), 10.02 and Article VIII10.06, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subject to Section 10.02 hereof, each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIIIGuaranteed Obligations. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, principal of or interest on any of the Guarantor Obligations Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay the principal of or interest on any of the Guarantor Obligations 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guarantor Obligations then due and owing and Guaranteed Obligations, (ii) accrued and unpaid interest on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after iii) all other monetary obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating Issuer to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)Trustee.
(g) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Trustee in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between such Guarantorit, on the one hand, and the HoldersTrustee, on the other hand, (xi) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture Article 6 for the purposes of its any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Guaranteed Obligations guaranteed hereby hereby, and (yii) in the event of any such declaration of acceleration of such Guarantor ObligationsGuaranteed Obligations as provided in Article 6, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the such Guarantor for the purposes of this GuaranteeSection 10.01.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ feesfees and expenses) incurred by the Trustee or the Holders any Holder in enforcing any rights under this SectionSection 10.01. Each Guarantor shall promptly execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Sources: Indenture (Hillman Companies Inc)
Guarantees. (a) Subject to the provisions of this Article X, each Each Guarantor hereby jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, guarantees on a senior an unsecured basis, as guarantor a primary obligor and not merely as a surety, with each other Guarantor, to each Holder, to the extent lawful, Holder and the Trustee, Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration, by redemption acceleration or otherwise, of all obligations of the Issuers under this Indenture (including obligations to the Trustee) and the Securities, whether for payment of principal of, premium, if any, and or interest on on, if any, the Notes Securities and all other Obligations monetary obligations of the Issuer Issuers under this Indenture and the Notes Securities and (includingii) the full and punctual performance within applicable grace periods of all other obligations of the Issuers whether for fees, without limitationexpenses, interest accruing after the filing of any petition in bankruptcy, indemnification or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding otherwise under this Indenture and the obligations under Section 7.6) Securities, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guarantor Guaranteed Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it each such Guarantor shall remain bound under this Article X 10 notwithstanding any extension or renewal of any Guarantor Guaranteed Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuer Issuers of any of the Guarantor Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes Securities or the Guarantor Guaranteed Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guarantor Guaranteed Obligations.
(d) Except as expressly set forth in Section 10.2 Sections 8.01(b), 10.02 and Article VIII10.06, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Subject to Section 10.02 hereof, each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIIIGuaranteed Obligations. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, principal of or interest on any of the Guarantor Obligations Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuer Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of the an Issuer to pay the principal of or interest on any of the Guarantor Obligations 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guarantor Obligations then due and owing and Guaranteed Obligations, (ii) accrued and unpaid interest on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after iii) all other monetary obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating Issuers to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)Trustee.
(g) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Trustee in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between such Guarantorit, on the one hand, and the HoldersTrustee, on the other hand, (xi) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture Article 6 for the purposes of its any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Guaranteed Obligations guaranteed hereby hereby, and (yii) in the event of any such declaration of acceleration of such Guarantor ObligationsGuaranteed Obligations as provided in Article 6, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the such Guarantor for the purposes of this GuaranteeSection 10.01.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ feesfees and expenses) incurred by the Trustee or the Holders any Holder in enforcing any rights under this SectionSection 10.01. Each Guarantor shall promptly execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Sources: Indenture (PQ Group Holdings Inc.)
Guarantees. (a) Subject to the provisions of this Article XExcept as permitted in Section 4.24, each Note Guarantor hereby jointly and severally, irrevocably, fully severally irrevocably and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, guarantees to each Holder, Holder and to the extent lawful, Trustee and the Trustee, its successors and assigns (1) the full and punctual payment when due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Issuer under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, or interest, premium, if any, and interest on on, the Notes and all other Obligations monetary obligations of the Issuer under this Indenture and the Notes and (including, without limitation, interest accruing after 2) the filing full and punctual performance within applicable grace periods of any petition in bankruptcy, or the commencement all other obligations of any insolvency, reorganization or like proceeding, relating to the Issuer whether for fees, expenses, indemnification or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding otherwise under this Indenture and the obligations under Section 7.6) Notes (all the foregoing being hereinafter collectively called the “Guarantor Guaranteed Obligations”). Each Note Guarantor further agrees (to the extent lawful) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Note Guarantor, and that it each such Note Guarantor shall remain bound under this Article X 11 notwithstanding any extension or renewal of any Guarantor Guaranteed Obligation. The Note Guarantees will be substantially in the form of Exhibit B or C hereto.
(b) Each Note Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuer of any of the Guarantor Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Note Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Guaranteed Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the . The obligations of each Note Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a1) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b2) any extension or renewal of any thereof; (c3) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d4) the release of any security held by any Holder or the Trustee for the Guarantor Guaranteed Obligations or any of them; (e5) the failure of any Holder or Trustee to exercise any right or remedy against any other Guarantorguarantor of the Guaranteed Obligations; or (fvi) any change in the ownership of such Note Guarantor, except as provided in Sections 11.02(b) and (c).
(c) Each Note Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Note Guarantors, such that such Note Guarantor’s obligations would be less than the full amount claimed. Each Note Guarantor hereby waives any right to which it may be entitled to have the assets of the Issuer first be used and depleted as payment of the Issuer; ’s or such Note Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Note Guarantor hereunder. Each Note Guarantor hereby waives any right to which it may be entitled to require that the Issuer be sued prior to an action being initiated against such Note Guarantor.
(gd) Each Note Guarantor further agrees that its Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02, 11.02, 11.06, 11.08 and the Intercreditor Deeds, the obligations of each Note Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Note Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful wilful or otherwise, in the performance of the Guarantor Obligations; obligations, or (h) by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Note Guarantor or would otherwise operate as a discharge of such any Note Guarantor as a matter of law or equity.
(ef) Each Except as expressly set forth in Sections 8.02, 11.02, 11.06, 11.08 and the Intercreditor Deeds, each Note Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIIIGuaranteed Obligations. Each Note Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, principal of or interest on any of the Guarantor Obligations Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuer or otherwise.
(fg) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Note Guarantor by virtue hereof, upon the failure of the Issuer to pay the principal of or interest on any of the Guarantor Obligations Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Note Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i1) the unpaid principal amount of such Guarantor Obligations then due and owing and Guaranteed Obligations, (ii2) accrued and unpaid interest on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) and (including interest accruing after 3) all other monetary obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating Issuer to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)Holders and the Trustee.
(gh) Each Note Guarantor further agrees that, as between such Guarantorit, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (x1) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture Article 6 for the purposes of its any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Guaranteed Obligations guaranteed hereby hereby, and (y2) in the event of any such declaration of acceleration of such Guarantor ObligationsGuaranteed Obligations as provided in Article 6, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the such Guarantor for the purposes of this GuaranteeSection 11.01.
(hi) Each Note Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ feesfees and expenses) incurred by the Trustee or the Holders any Holder in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any GuaranteeSection 11.01.
(j) Each Guarantee The Company shall be subject to limitations in accordance with local law in the jurisdiction of organization procure that each of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability Note Guarantors shall provide Note Guarantees within 10 days of the Guarantees Closing Date, provided that Note Guarantors representing at least 75% of the EBITDA of the Company and the Security Interests” Restricted Subsidiaries on a combined basis for the fiscal year ended December 31, 2009 shall have provided Note Guarantees on or before the Closing Date.
(k) Upon request of the Trustee, each Note Guarantor shall execute and (iii) other considerations under applicable lawdeliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
Appears in 1 contract
Sources: Indenture (Virgin Media Inc.)
Guarantees. (a) Subject to the provisions of this Article X, each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, severally with each other Guarantor, to each HolderHolder of the Notes, to the extent lawful, and the Trustee, Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes and all other Obligations obligations of the Issuer under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) . Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) . Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) . Except as set forth in Section 4.2, Section 10.2 and Article VIIIVIII hereof, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Notes, or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) . Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.14.2, Section 10.2 and or Article VIIIVIII hereof. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principalprincipal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) . In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) . Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) . Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) . Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Sources: Indenture (FGL Holdings)
Guarantees. (a) Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, to the extent lawful, and the Trustee, the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes of each series and all other Obligations of the Issuer Issuers under this Indenture and the Notes of such series (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer Issuers or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer Issuers of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the IssuerIssuers; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principalprincipal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer Issuers to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee Trustee, the Agents or the Trustee on behalf of the Holders and such Agents an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer Issuers or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer Issuers nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Sources: Indenture (PPD, Inc.)
Guarantees. (a) Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each HolderHolder of the Notes, to the extent lawful, and the Trustee, Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes and all other Obligations of the Issuer Issuers under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer Issuers or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer Issuers of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the IssuerIssuers; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principalprincipal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer Issuers to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer Issuers or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer Issuers nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum Circular under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
(k) If and to the extent that a Guarantor incorporated in Switzerland (a “Swiss Guarantor”) is liable under the Guarantees or any other provision of the Notes or this Indenture, for obligations other than obligations of one of its wholly owned subsidiaries (being obligations of its direct or indirect parent companies (for purposes of this clause (k), an “up-stream guarantee”) or sister companies (for purposes of this clause (k), a “cross-stream guarantee”)) (for purposes of this clause (k), the “Restricted Obligations”), and that the making of a payment in fulfilling Restricted Obligations would under Swiss corporate law (inter alia, prohibiting capital repayments or restricting distributions) at the time payment is due, not be permitted, then such obligations and payment amount shall from time to time be limited to the amount permitted to be paid under Swiss corporate law; provided that such limited amount shall at no time be less than such Swiss Guarantor’s distributable reserves (presently being the balance sheet profits and any reserves available for distribution, including, without limitation, Kapitaleinlagereserven) at the time or times payment is requested from the relevant Swiss Guarantor, and further provided that such limitation (as may apply from time to time or not) shall not (generally or definitively) release such Swiss Guarantor from payment obligations hereunder in excess thereof, but merely postpone the payment date therefore until such times as payment is again permitted notwithstanding such limitation. Any and all indemnities and guarantees contained in the Notes or this Indenture shall be construed in a manner consistent with the provisos herein contained. In case a Swiss Guarantor who must make a payment in respect of Restricted Obligations under its Guarantee is obliged to withhold Swiss Withholding Tax (Verrechnungssteuer) in respect of such payment, such Swiss Guarantor shall:
(i) procure that such payments can be made without deduction of Swiss Withholding Tax, or with deduction of Swiss Withholding Tax at a reduced rate, by discharging the liability to such tax by notification pursuant to applicable law (including double tax treaties) rather than payment of the tax;
(ii) if the notification procedure pursuant to sub-paragraph (i) above does not apply, deduct Swiss Withholding Tax at the rate of 35% (or such other rate as in force from time to time), or if the notification procedure pursuant to sub-paragraph (i) above applies for a part of the Swiss Withholding Tax only, deduct Swiss Withholding Tax at the reduced rate resulting after the discharge of part of such tax by notification under applicable law, from any payment made by it in respect of Restricted Obligations and promptly pay any such taxes to the Swiss Federal Tax Administration (Eidgenössische Steuerverwaltung);
(iii) notify the Trustee in writing that such notification, or as the case may be, deduction has been made and provide the Trustee with evidence that such a notification of the Swiss Federal Tax Administration has been made or, as the case may be, such taxes deducted have been paid to the Swiss Federal Tax Administration;
(iv) in the case of a deduction of Swiss Withholding Tax:
(1) use its best efforts to ensure that any Person other than a Secured Party which is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such payment in respect of Restricted Obligations, will, as soon as possible after such deduction (A) request a refund of the Swiss Withholding Tax under applicable law (including tax treaties) and (B) pay to the Trustee upon receipt any amounts so refunded; and
(2) if a Secured Party is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such payment, shall provide the Trustee (on its behalf or on behalf of any Secured Party) those documents that are required by law and applicable tax treaties to be provided by the payer of such tax, for each relevant Secured Party, to prepare a claim for refund of Swiss Withholding Tax. If a Swiss Guarantor is obliged to withhold Swiss Withholding Tax in accordance with the previous paragraph, the Trustee shall be entitled to further enforce the Guarantees or any other indemnity granted by the respective Swiss Guarantor under this Indenture and apply proceeds therefrom against the Restricted Obligations up to an amount which is equal to that amount which would have been obtained if no withholding of Swiss Withholding Tax were required, whereby such further enforcements shall always be limited to the maximum amount of the freely distributable reserves of the respective Swiss Guarantor as set out above. If and to the extent a demand for payment against a Swiss Guarantor is made by the Trustee and if and to the extent required under Swiss mandatory law (with regards to restricting distributions) applicable at the relevant time, in order to allow the Trustee (and the Secured Parties) to obtain a maximum benefit under the Guarantees, the relevant Swiss Guarantor shall, and any parent company of the Swiss Guarantor being a party to this Indenture shall procure that the Swiss Guarantor will, promptly implement all such measures and/or promptly procure the fulfillment of all prerequisites allowing it to promptly make the (requested) payment(s) hereunder from time to time, including the following:
Appears in 1 contract
Guarantees. (a) Subject to the provisions of this Article X15, each Guarantor the Issuer and the Subsidiary Guarantors hereby irrevocably and unconditionally guarantee, jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, basis to each Holder, holder and to the extent lawful, Trustee and the Trustee, its successors and assigns (i) the full and punctual payment when due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, and of or interest on the Notes Notes, delivery of the Settlement Amount and all other Obligations monetary obligations of the Issuer Company under this Indenture and the Notes and (includingii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, without limitationexpenses, interest accruing after the filing of any petition in bankruptcy, indemnification or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding otherwise under this Indenture and the obligations under Section 7.6) Notes (all the foregoing being hereinafter collectively called the “Guarantor Obligations”"GUARANTEED OBLIGATIONS"). Each Guarantor agrees (Subject to Section 15.02, the extent lawful) Issuer and the Subsidiary Guarantors further agree that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteither the Issuer or the Subsidiary Guarantors, and that it the Issuer and the Subsidiary Guarantors shall remain bound under this Article X 15 notwithstanding any extension or renewal of any Guarantor Guaranteed Obligation.
(b) Each Guarantor waives (to To the extent lawful) permitted by law, the Issuer and the Subsidiary Guarantors waive presentation to, demand of, of payment from and protest to the Issuer Company of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.Guaranteed
Appears in 1 contract
Sources: Indenture (CSK Auto Corp)
Guarantees. (a) Subject to the provisions of this Article X, each Each Guarantor hereby jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, Holder and to the extent lawful, Trustee and the Trustee, its successors and assigns (i) the full and punctual payment when due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Issuer (including obligations to the Trustee and the Notes Collateral Trustee) under this Indenture and the Notes, whether for payment of principal of, premium, if any, and or interest on the Notes and all other Obligations monetary obligations of the Issuer under this Indenture Indenture, the Notes, the Security Documents and the Notes Intercreditor Agreement and (including, without limitation, interest accruing after ii) the filing full and punctual performance within applicable grace periods of any petition in bankruptcy, or the commencement all other obligations of any insolvency, reorganization or like proceeding, relating to the Issuer whether for fees, expenses, indemnification or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding otherwise under this Indenture, the Notes, the Security Documents and the obligations under Section 7.6) Intercreditor Agreement (all the foregoing being hereinafter collectively called the “Guarantor Guaranteed Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it each such Guarantor shall remain bound under this Article X 10 notwithstanding any extension or renewal of any Guaranteed Obligation. The Guaranteed Obligations of a Guarantor Obligationwill be secured by security interests in the Collateral owned by such Guarantor to the extent provided for in the Security Documents and as required pursuant to Sections 4.10 and 4.11.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuer Company of any of the Guarantor Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (i) the failure of any Holder, the Trustee or the Notes Collateral Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes, any Security Document, or any other agreement or otherwise; (ii) any extension or renewal of this Indenture, the Notes, any Security Document or any other agreement; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes, any Security Document or any other agreement; (iv) the release of any security held by any Holder, the Trustee or the Notes Collateral Trustee for the Guaranteed Obligations or any Guarantor; (v) the failure of any Holder, the Trustee or the Notes Collateral Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (vi) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
(c) Subject to Section 10.02(a), each Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Guarantors, such that such Guarantor’s obligations would be less than the full amount claimed. Each Guarantor hereby waives any right to which it may be entitled to have the assets of the Company or any other Guarantor first be used and depleted as payment of the Company’s or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder. Each Guarantor hereby waives any right to which it may be entitled to require that the Company be sued prior to an action being initiated against such Guarantor.
(d) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee guarantee of payment payment, performance and compliance when due (and not a Guarantee guarantee of collection) and waives any right to require that any resort be had by any Holder Holder, the Trustee or the Notes Collateral Trustee to any security held for payment of the Guarantor Guaranteed Obligations.
(de) Except as expressly set forth in Section 10.2 Sections 8.01, 10.02 and Article VIII10.06, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder Holder, the Trustee or the Notes Collateral Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes Notes, any Security Document or any other agreement or otherwise; (b) agreement, by any extension or renewal of any thereof; (c) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenturethereof, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; obligations, or (h) 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 such any Guarantor as a matter of law or equity.
(ef) Each Except as expressly set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee Guaranteed Obligations. Except as expressly set forth in compliance with Section 4.1Sections 8.01 and 10.02, Section 10.2 and Article VIII. Each each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, principal of or interest on any of the Guarantor Obligations Guaranteed Obligation is rescinded or must otherwise be restored by any Holder Holder, the Trustee or the Notes Collateral Trustee upon the bankruptcy or reorganization of the Issuer or otherwise.
(fg) In furtherance of the foregoing and not in limitation of any other right which any Holder Holder, the Trustee or the Notes Collateral Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer Company to pay the principal of or interest on any of the Guarantor Obligations Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the TrusteeTrustee in accordance with this Indenture, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or the Notes Collateral Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guarantor Obligations then due and owing and Guaranteed Obligations, (ii) accrued and unpaid interest on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after iii) all other monetary obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating Issuer then due to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed Holders, the Trustee and the Notes Collateral Trustee in such proceeding)respect of the Guaranteed Obligations.
(gh) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between such Guarantorit, on the one hand, and the Holders, the Trustee and the Notes Collateral Trustee, on the other hand, (xi) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture Article 6 for the purposes of its any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Guaranteed Obligations guaranteed hereby hereby, and (yii) in the event of any such declaration of acceleration of such Guarantor ObligationsGuaranteed Obligations as provided in Article 6, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the such Guarantor for the purposes of this GuaranteeSection 10.01.
(hi) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ feesfees and expenses) incurred by the Trustee Trustee, or the Holders Notes Collateral Trustee, or any Holder in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any GuaranteeSection 10.01.
(j) Each Upon request of the Trustee, each Guarantor shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
(k) All Guarantors desire to allocate among themselves (collectively, the “Contributing Guarantors”), in a fair and equitable manner, the economic consequences resulting from the performance of their respective obligations arising under this Indenture. Accordingly, in the event any payment or distribution is made on any date by a Guarantor (a “Funding Guarantor”) under its Guarantee such that its Aggregate Payments exceed its Fair Share as of such date, such Funding Guarantor shall be entitled to a contribution from each of the other Contributing Guarantors in an amount sufficient to cause each Contributing Guarantor’s Aggregate Payments to equal its Fair Share as of such date. “Fair Share” means, with respect to a Contributing Guarantor as of any date of determination, an amount equal to (a) the ratio of (i) the Fair Share Contribution Amount with respect to such Contributing Guarantor, to (ii) the aggregate of the Fair Share Contribution Amounts with respect to all Contributing Guarantors, multiplied by (b) the aggregate amount paid or distributed on or before such date by all Funding Guarantors under their respective Guarantees in respect of the obligations guaranteed. “Fair Share Contribution Amount” means, with respect to a Contributing Guarantor as of any date of determination, the maximum aggregate amount of the obligations of such Contributing Guarantor under its Guarantee that would not render its obligations hereunder or thereunder subject to limitations in accordance with local law in the jurisdiction of organization avoidance as a fraudulent transfer or conveyance under Section 548 of the Bankruptcy Code or any comparable applicable provisions of state law; provided that solely for purposes of calculating the Fair Share Contribution Amount with respect to any Contributing Guarantor for purposes of this Section 10.01, any assets or liabilities of such Contributing Guarantor arising by virtue of any rights to subrogation, reimbursement or indemnification or any rights to or obligations of contribution hereunder shall not be 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 defenses generally available distributions made on or before such date by such Contributing Guarantor in respect of its Guarantee (including in respect of this Section 10.01), minus (2) the aggregate amount of all payments received on or before such date by such Guarantor from the other Contributing Guarantors as contributions under this Section 10.01. The amounts payable as contributions hereunder shall be determined as of the date on which the related payment or distribution is made by the applicable Funding Guarantor. Each Contributing Guarantor is a third party beneficiary to guarantors the contribution agreement set forth in such jurisdictionthis Section 10.01(k). For the avoidance of doubt, such limitations and defenses may includenothing in this Section 10.01(k) shall limit or impair, but are not limited toby implication or otherwise, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum each Guarantor’s obligations under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable lawits Guarantee.
Appears in 1 contract
Guarantees. If the Escrow Agreement is effective, prior to the Acquisition Date the Issuer's obligations under this Indenture and the Notes shall be guaranteed by Holdings, as provided in this Article 10. Thereafter, on the Acquisition Date, each of the Issuer's direct and indirect Restricted Subsidiaries that guarantees Indebtedness under the Credit Agreement (other than any License Subsidiary) shall execute a supplemental indenture substantially in the form of EXHIBIT J and shall guarantee the Issuer's obligations under this Indenture and the Notes, as provided in this Article 10.
(a) Subject to the provisions of this Article X, each Each Guarantor hereby jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, on as a senior unsecured basis, as guarantor primary obligor and not merely as a surety, with each other Guarantor, to each Holder, Holder and to the extent lawful, Trustee and the Trustee, its successors and assigns (i) the full and punctual payment when due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Issuer under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, and or interest on or additional interest in respect of the Notes and all other Obligations monetary obligations of the Issuer under this Indenture and the Notes and (including, without limitation, interest accruing after ii) the filing full and punctual performance within applicable grace periods of any petition in bankruptcy, or the commencement all other obligations of any insolvency, reorganization or like proceeding, relating to the Issuer whether for fees, expenses, indemnification or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding otherwise under this Indenture and the obligations under Section 7.6) Notes (all the foregoing being hereinafter collectively called the “Guarantor Obligations”"GUARANTEED OBLIGATIONS"). Each Guarantor further agrees (to the extent lawful) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it each such Guarantor shall remain bound under this Article X 10 notwithstanding any extension or renewal of any Guarantor Guaranteed Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuer of any of the Guarantor Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Guaranteed Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the . The obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (ai) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (bii) any extension or renewal of this Indenture, the Notes or any thereofother agreement; (ciii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (div) the release of any security held by any Holder or the Trustee for the Guarantor Guaranteed Obligations or any of themGuarantor; (ev) the failure of any Holder or Trustee to exercise any right or remedy against any other Guarantorguarantor of the Guaranteed Obligations; or (fvi) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
(c) Each Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Guarantors, such that such Guarantor's obligations would be less than the full amount claimed. Each Guarantor hereby waives any right to which it may be entitled to have the assets of the Issuer first be used and depleted as payment of the Issuer; 's or such Guarantor's obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder. Each Guarantor hereby waives any right to which it may be entitled to require that the Issuer be sued prior to an action being initiated against such Guarantor.
(gd) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01, 10.02 and 10.06, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or com- promise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; obligations, or (h) 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 such any Guarantor as a matter of law or equity.
(ef) Each Except as expressly set forth in Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee Guaranteed Obligations. Except as expressly set forth in compliance with Section 4.1Sections 8.01 and 10.02, Section 10.2 and Article VIII. Each each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, principal of or interest on any of the Guarantor Obligations Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuer or otherwise.
(fg) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay the principal of or interest on any of the Guarantor Obligations 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 Trustee Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guarantor Obligations then due and owing and Guaranteed Obligations, (ii) accrued and unpaid interest on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after iii) all other monetary obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating Issuer to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed Holders and the Trustee in such proceeding)respect of the Guaranteed Obligations.
(gh) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between such Guarantorit, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (xi) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture Article 6 for the purposes of its any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Guaranteed Obligations guaranteed hereby hereby, and (yii) in the event of any such declaration of acceleration of such Guarantor ObligationsGuaranteed Obligations as provided in Article 6, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the such Guarantor for the purposes of this GuaranteeSection 10.01.
(hi) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees' fees and expenses) incurred by the Trustee or the Holders any Holder in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any GuaranteeSection 10.01.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization Upon request of the applicable Trustee, each Guarantor shall execute and defenses generally available deliver such further instruments and do such further acts as may be reasonably necessary or proper to guarantors in such jurisdiction. For carry out more effectively the avoidance purpose of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable lawthis Indenture.
Appears in 1 contract
Sources: Indenture (Intelsat LTD)
Guarantees. (a) Subject Holdings, in consideration of the Purchaser’s entering into this Agreement and purchasing Notes, unconditionally and irrevocably guarantees to the provisions Purchaser and each and every holder from time to time of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, to any of the extent lawful, and Notes the Trustee, the full due and punctual payment when due, whether at maturity, by acceleration, by redemption of all sums which may become due or otherwise, be stated in the Notes or in this Agreement to become due under the terms and provisions of the Notes and this Agreement in respect of the principal of, premiumof and prepayment charge, if any, and interest on the Notes (including interest on any overdue principal, prepayment charge, if any, and, to the extent permitted by applicable law, on any overdue interest), whether at stated maturity, by acceleration, by notice of prepayment or otherwise, and all other Obligations sums which may become due from the Borrower or be stated to be or become so due under the Notes or this Agreement. Holdings further guarantees to the Purchasers and each holder as aforesaid the due performance and observance by the Borrower of all covenants, agreements and conditions on the Issuer Borrower’s part to be performed under this Indenture Agreement and any other document from time to time delivered by the Notes Borrower pursuant to this Agreement. Holdings further guarantees to the Purchasers and each holder as aforesaid payment of all other amounts payable by the Borrower under this Agreement or the Notes, including costs, expenses (includingincluding fees and expenses of counsel) and taxes (such principal, without limitationprepayment charge, if any, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the other obligations under Section 7.6) (all the foregoing guaranteed as aforesaid being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (” and to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also lawful agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ feesfees and expenses of counsel) incurred by the Trustee or the Holders each holder of any Note in enforcing any rights under in connection with this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Guarantees. (a) Subject to the provisions of subsections (b) through (g) of this Article XSection 6, each Guarantor who has executed this Note hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, severally with each other Guarantor, to each the Holder, to the extent lawful, and the Trustee, the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest interest, on the Notes Note and all other Obligations obligations and liabilities of the Issuer Company under this Indenture and the Notes Note (including, including without limitation, limitation interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer Company or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6proceeding) (a “Guarantee” and all the foregoing being hereinafter collectively called the “Guarantor Obligations”); provided, however, the Guarantee shall be subject to the Subordination Agreement. Each Guarantor further agrees (to the extent lawfulpermitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall will remain bound under this Article X Section 6 notwithstanding any extension or renewal of any Guarantor Obligation.
(bi) Each Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuer Company of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpaymentnon-payment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes Note or the Guarantor Obligations.
(cii) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee guarantee of payment when due (and not a Guarantee guarantee of collection) and waives any right to require that any resort be had by any the Holder to any security held for payment of the Guarantor Obligations.
(diii) Except as set forth in Section 10.2 and Article VIII6(e), the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any the Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer Company or any other Person person under this Indenture, the Notes or any other agreement or otherwiseTransaction Documents; (b) any extension or renewal of any thereofgranted; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreementTransaction Documents; (d) the release of any security held by any the Holder for the Guarantor Obligations or any of them; (e) the failure of any the Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the IssuerCompany; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(eiv) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII6(e) hereof. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, principal of or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer Company or otherwise.
(fv) In furtherance of the foregoing and not in limitation of any other right which any the Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and shallwill, upon receipt of written demand by the TrusteeHolder, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders Holder an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(gvi) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the HoldersHolder, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture Note for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(hvii) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ feesfees and expenses) incurred by the Trustee or the Holders Holder in enforcing any rights under this SectionSection 6(c).
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Sources: Exchange and Settlement Agreement (FiscalNote Holdings, Inc.)
Guarantees. (a) Subject Each of ITT and Dow Jone▇ (▇▇T and Dow Jone▇ ▇▇▇ng referred to in this Section 10.17 as the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally "Seller Guarantors") irrevocably guarantees, on a senior unsecured basisseverally and not jointly, as guarantor a principal and not as a surety, with each other Guarantor, to each Holder, Purchaser and its successors and permitted assigns full and prompt performance by Seller of all of its obligations under or pursuant to the extent lawful, this Agreement and the TrusteeTime Brokerage Agreement in accordance with the terms thereof; provided, the full and punctual payment when duehowever, whether at maturity, by acceleration, by redemption or otherwise, that neither Seller Guarantor shall be obligated pursuant to this Section 10.17 to pay any amount in excess of 50% of the principal of, premium, if any, and interest on the Notes and all other Obligations of the Issuer under this Indenture and the Notes (including, without limitation, interest accruing after the filing amount of any petition in bankruptcy, or the commencement such obligation of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor ObligationSeller.
(b) Paxs▇▇ ▇▇▇evocably guarantees, as a principal and not as a surety, to Seller and its successors and permitted assigns the full and prompt performance by Purchaser of all of its obligations under or pursuant to this Agreement and the Time Brokerage Agreement in accordance with the terms thereof (the obligations of Seller and Purchaser guaranteed pursuant to this Section 10.17, being referred to collectively as the "Guaranteed Obligations").
(c) The guaranties set forth in this Section 10.17 shall survive the Closing and remain in full force and effect for the period of time during which indemnification 49 44 may be sought under Section 9.01 or 9.02, as applicable. Each Seller Guarantor and Paxs▇▇ (▇▇llectively, the "Guarantors") waives (any provision of any statute or judicial decision otherwise applicable hereto which restricts or in any way limits the rights of any obligee against a guarantor or surety following a default or failure of performance by an obligor with respect to whose obligations the guarantee is provided. To the fullest extent lawful) presentation permitted by applicable law, each Guarantor hereby waives presentment to, demand of, of payment from and protest to the Issuer of any of the Guarantor Obligations Guaranteed Obligation, and also waives (to the extent lawful) notice of acceptance of its guarantee and notice of protest for nonpayment. Each Guarantor waives (to To the fullest extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had permitted by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIIIapplicable law, the obligations of each Guarantor the Guarantors hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee applicable obligee to assert any claim or demand or to enforce any right or remedy against the Issuer applicable Guarantor pursuant to the provisions of this Agreement or any other Person under this Indenture, the Notes or any other agreement or otherwise; otherwise and (b) any extension or renewal of any thereof; (c) any rescissionrecision, waiver, amendment or modification of of, or any release from any of the terms or provisions of this Indenture50 Section 10.17, the Notes or any other agreement; (d) the release of any security held unless consented to in writing by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equitySeller and Purchaser.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Sources: Asset Purchase Agreement (Paxson Communications Corp)
Guarantees. (a) Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, to the extent lawful, and the Trustee, the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes and all other Obligations of the Issuer Company under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer Company or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer Company of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the IssuerCompany; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and 10.2, Article VIIIVIII or Section 9.1(a)(vi)(A). Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principalprincipal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer Company or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer Company or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer Company nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Sources: Indenture (Ii-Vi Inc)
Guarantees. (a) Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, to the extent lawful, and the Trustee, the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, In consideration of the principal oftransactions contemplated by this Agreement, premium, if any, and interest on the Notes and all other Obligations of the Issuer under this Indenture and the Notes Tinicum hereby unconditionally guaranties to Sellers (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor ObligationsTinicum Guaranty”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, Tinicum will duly and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstatedpunctually pay and/or perform, as the case may be, if at any time paymentall obligations, or any part thereofliabilities and undertakings of Buyer under this Agreement, including, without limitation, all obligations, liabilities and undertakings of principalBuyer under Sections 2.05 and 2.08 of this Agreement (collectively, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder “Buyer Obligations”). Notwithstanding the forgoing Tinicum’s obligations under this Section 12.15 shall terminate upon the bankruptcy payment of any amounts due to Sellers under Section 2.08 or reorganization upon the determination of Final Net Worth pursuant to Section 2.07, in the Issuer event that Final Net Worth does not exceed the lesser of Estimated Final Net Worth or otherwiseTarget Net Worth.
(fb) In furtherance consideration of the foregoing transactions contemplated by this Agreement, USI hereby unconditionally guaranties to Buyer (the “USI Guaranty”) that USI will duly and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereofpunctually pay and/or perform, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become duecase may be, whether at maturityall obligations, by accelerationliabilities and undertakings of Sellers under this Agreement, by redemption or otherwiseincluding, each Guarantor hereby promises to without limitation, all obligations, liabilities and shallundertakings of Sellers under Article 10 of this Agreement ((collectively, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding“Seller Obligations”).
(gc) Each Guarantor further agrees thatThe Tinicum Guaranty and the USI Guaranty are each an absolute, as between such Guarantorunconditional and continuing guarantee by Tinicum and USI, on respectively, of the one handBuyer Obligations and the Seller Obligations, respectively, each in accordance with their terms, and the Holders, on the other hand, (x) the maturity not of their collectibility only. Enforcement of the Guarantor liabilities and obligations of Tinicum and USI hereunder is in no way conditioned upon any requirement that any party first attempt to collect or take any action against Buyer (in the case of Tinicum) or Sellers (in the case of USI) or any other person primarily or secondarily liable with respect to the Buyer Obligations guaranteed hereby may be accelerated as provided in this Indenture for or the purposes of its Guarantee herein, notwithstanding Seller Obligations or resort to any stay, injunction security or other prohibition preventing such acceleration in respect means of obtaining payment of any of the Guarantor Buyer Obligations guaranteed hereby and which Buyer, or the Seller Obligations which Sellers, may now have or may acquire after the date hereof or upon any other contingency whatsoever; provided, however, that nothing herein shall adversely affect USI’s or Tinicum’s rights to assert any defense available to Buyer (y) in the event case of Tinicum) or Sellers (in the case of USI) under this Agreement or at law. Upon any such declaration of acceleration of such Guarantor default in the full and punctual payment and/or performance by Buyer with respect to the Buyer Obligations or Sellers with respect to the Seller Obligations, such Guarantor Obligations in each case in accordance with their terms, the liabilities and obligations of Tinicum (whether or not as guarantor of the Buyer Obligations) and USI (as guarantor of the Seller Obligations) hereunder shall, at the option of the aggrieved party, become forthwith due and payable) shall forthwith become due , without demand or notice of any nature, all of which are hereby expressly waived by each of USI and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall Tinicum. Payments hereunder may be required to make a notation on any number of occasions from Tinicum or USI until such time as the Notes to reflect any Guarantee Buyer Obligations or any releaseSeller Obligations, termination respectively, are paid or discharge thereof and any such notation shall not be a condition to satisfied, as the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations case may be, in full in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable lawtheir terms.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Us Industries Inc /De)
Guarantees. (a) Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each HolderHolder of the Notes, to the extent lawful, and the Trustee, Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes and all other Obligations of the Issuer under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principalprincipal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither None of the Issuer nor or the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
(k) If and to the extent that a Guarantor incorporated in Switzerland (a “Swiss Guarantor”) is liable under the Guarantees or any other provision of the Notes or this Indenture, for obligations other than obligations of one of its wholly owned subsidiaries (being obligations of its direct or indirect parent companies (an up-stream guarantee) or sister companies (a cross-stream guarantee)) (for purposes of this clause (k), the “Restricted Obligations”), and that the making of a payment in fulfilling Restricted Obligations would under Swiss corporate law (inter alia, prohibiting capital repayments or restricting distributions) at the time payment is due, not be permitted, then such obligations and payment amount shall from time to time be limited to the amount permitted to be paid under Swiss corporate law; provided that such limited amount shall at no time be less than such Swiss Guarantor's distributable capital at the time or times payment is requested from the relevant Swiss Guarantor, and further provided that such limitation (as may apply from time to time or not) shall not (generally or definitively) release such Swiss Guarantor from payment obligations hereunder in excess thereof, but merely postpone the payment date therefore until such times as payment is again permitted notwithstanding such limitation. Any and all indemnities and guarantees contained in the Notes or this Indenture shall be construed in a manner consistent with the provisos herein contained. In case a Swiss Guarantor who must make a payment in respect of Restricted Obligations under its Guarantee is obliged to withhold Swiss Withholding Tax (Verrechnungssteuer) in respect of such payment, such Swiss Guarantor shall:
(i) procure that such payments can be made without deduction of Swiss Withholding Tax, or with deduction of Swiss Withholding Tax at a reduced rate, by discharging the liability to such tax by notification pursuant to applicable law (including double tax treaties) rather than payment of the tax;
(ii) if the notification procedure pursuant to sub-paragraph (i) above does not apply, deduct Swiss Withholding Tax at the rate of 35% (or such other rate as in force from time to time), or if the notification procedure pursuant to sub-paragraph (i) above applies for a part of the Swiss Withholding Tax only, deduct Swiss Withholding Tax at the reduced rate resulting after the discharge of part of such tax by notification under applicable law, from any payment made by it in respect of Restricted Obligations and promptly pay any such taxes to the Swiss Federal Tax Administration (Eidgenössische Steuerverwaltung);
(iii) notify the Trustee that such notification, or as the case may be, deduction has been made and provide the Trustee with evidence that such a notification of the Swiss Federal Tax Administration has been made or, as the case may be, such taxes deducted have been paid to the Swiss Federal Tax Administration;
(iv) in the case of a deduction of Swiss Withholding Tax:
Appears in 1 contract
Sources: Supplemental Indenture (Axalta Coating Systems Ltd.)
Guarantees. To the extent any Guaranteed Securities are Outstanding, the Guarantor hereby irrevocably, unconditionally, and absolutely guarantees, jointly and severally and on a continuing basis, to each Holder of such Guaranteed Securities as and for the Guarantor’s own debt, until final and indefeasible payment of the amounts referred to in Clause (a) Subject to below have been made:
(a) the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, to the extent lawful, and the Trustee, the full due and punctual payment of principal of and interest on the Guaranteed Securities at any time outstanding and the due and punctual payment of all other amounts payable, and all other amounts owing, by the Company to the Holders of the Guaranteed Securities under this Indenture and the Guaranteed Securities (including, without limitation, any Additional Amounts which may be owing to any of the Holders of Guaranteed Securities pursuant to the terms of Section 10.5 hereof), in each case when dueand as the same shall become due and payable, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes otherwise and all other Obligations monetary obligations of the Issuer Company hereunder, all in accordance with the terms and provisions hereof and thereof; and
(b) the punctual and faithful performance, keeping, observance and fulfillment by the Company of all duties, agreements, covenants and obligations of the Company under this Indenture and the Notes (including, without limitation, interest accruing after the filing Guaranteed Securities. All of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under set forth in Clause (a) and Clause (b) of this Section 7.6) (all the foregoing being hereinafter collectively called 16.1 are referred to herein as the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewedGuarantees.” Such Guarantees will constitute guarantees of payment, in whole or in part, without notice or further assent from it, performance and that it shall remain bound under this Article X notwithstanding any extension or renewal compliance and not merely of any Guarantor Obligationcollection.
(bc) Each The Guarantor waives (further agrees to the extent lawful) presentation waive presentment to, demand of, of payment from and protest to the Issuer of Company or any of the Guarantor Obligations other Person, and also waives (to the extent lawful) diligence, notice of acceptance of its Guarantee, presentment, demand for payment, notice of protest for nonpayment. Each Guarantor waives (to , the extent lawful) notice filing of claims with a court in the event of merger or bankruptcy of the Company or any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (other Person and not a Guarantee of collection) and waives any right to require that a proceeding first against the Company or any resort be had by any Holder to any security held for payment other Person. The obligations of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to affected by any reduction, limitation, impairment failure or termination for any reason (other than payment policy on the part of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against under this Indenture or the Guaranteed Securities of any other Guarantor; series.
(fd) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance The obligation of the Guarantor Obligations; to make any payment hereunder may be satisfied by causing the Company or (h) any other act Person to make such payment. If any Holder of any Guaranteed Security or thing the Trustee is required by any court or omission otherwise to return to the Company or delay to do the Guarantor, or any custodian, trustee, liquidator or other act or thing which may or might similar official acting in any manner or relation to any of the Company or the Guarantor, any amount paid by any of them to the Trustee or such Holder, the Guarantee of the Guarantor, to the extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equitytheretofore discharged, shall be reinstated in full force and effect.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each The Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders any Holder of Guaranteed Securities in enforcing any of their respective rights under this Sectionits Guarantees.
(if) Neither Any term or provision of this Indenture to the Issuer nor contrary notwithstanding, the Guarantors shall be required to make a notation on maximum aggregate amount of the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation Guarantees shall not exceed the maximum amount that can be a condition to guaranteed by the validity of any Guarantee.
(j) Each Guarantor without rendering the Guarantee shall be subject to limitations in accordance with local under this Indenture voidable under applicable law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related relating to fraudulent conveyance, conveyance or fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and transfer or similar laws, regulations and defenses laws affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Sources: Indenture (Carnival UK Ltd.)
Guarantees. (a) Subject to Each of the provisions of this Article XCompany’s Subsidiary Guarantors, each Guarantor hereby jointly and severally, irrevocablyand, fully as a primary obligor and not merely as surety, absolutely, unconditionally and irrevocably guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, subject to the extent lawful, and the TrusteeFirst Lien/Second Lien/Third Lien Intercreditor Agreements, the full and punctual prompt payment when due, whether at maturityStated Maturity, by acceleration, by redemption upon acceleration or otherwise, and at all times thereafter, all Obligations of the principal of, premium, if any, Company under this Third Lien Indenture and interest on the New Third Lien Secured Notes and all other Obligations reasonable fees and documented costs and expenses incurred by the Third Lien Trustee and the Collateral Agent in endeavoring to collect all of any part of the Issuer under this Indenture Obligations from, or in prosecuting any action against the Company or any Subsidiary Guarantor to the Holders, the Third Lien Trustee and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) Collateral Agent (all the foregoing such Obligations guaranteed by such Subsidiary Guarantors being hereinafter collectively herein called the “Guarantor Guaranteed Obligations”). Each Subsidiary Guarantor agrees (to the extent lawful) that the Guarantor Guaranteed Obligations may be extended or renewed, renewed in whole or in part, part without notice to or further assent from it, and that it shall remain remains bound under this Article X upon its guarantee notwithstanding any such extension or renewal of any Guarantor Obligationrenewal.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer Company of any of the Guarantor Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any default under the New Third Lien Secured Notes or the Guarantor Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee guarantee of payment when due (and not a Guarantee guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Guaranteed Obligations.
(d) Except as set forth in Section 10.2 4.09. Section 10.02 and Article VIII, the obligations of each Subsidiary Guarantor hereunder shall will not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall will not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall will not (to the extent lawful) be discharged or impaired or otherwise affected by (ai) the failure of any Holder or the Third Lien Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer Company or any other Person under this Third Lien Indenture, the New Third Lien Secured Notes or any other agreement or otherwise; (bii) any extension or renewal of any thereof; (ciii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Third Lien Indenture, the Notes New Third Lien Secured Notes, the Third Lien Security Agreements or any other agreementThird Lien Documents; (div) the release of any security held by any Holder Holder, any Third Lien Trustee or the Collateral Agent for the Guarantor Guaranteed Obligations or any of them; (ev) the failure of any Holder Holder, the Third Lien Trustee or the Collateral Agent to exercise any right or remedy against any other Subsidiary Guarantor; (fvi) any change in the ownership of the IssuerCompany; (gvii) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Guaranteed Obligations; or (hviii) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Subsidiary Guarantor or would otherwise operate as a discharge of such Subsidiary Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee herein shall will remain in full force and effect until payment in full of all the Guarantor Guaranteed Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.14.09, Section 10.2 10.02 and Article VIII. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein shall will continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principalprincipal of, premium, if any, or interest on any of the Guarantor Guaranteed Obligations is rescinded or must otherwise be restored by any Holder Holder, the Third Lien Trustee or the Collateral Agent upon the bankruptcy or reorganization of the Issuer Company or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder Holder, the Third Lien Trustee or the Collateral Agent has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuer Company to pay any of the Guarantor Guaranteed Obligations when and as the same shall will become due, whether at maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and shallwill, upon receipt of written demand by the Third Lien Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Third Lien Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer Company or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (xi) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby by this Guarantee may be accelerated as provided in this Third Lien Indenture for the purposes of its Subsidiary Guarantee hereinin this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Guaranteed Obligations guaranteed hereby by this Guarantee and (yii) in the event of any such declaration of acceleration of such Guarantor Guaranteed Obligations, such Guarantor Guaranteed Obligations (whether or not due and payable) shall will forthwith become due and payable by the Subsidiary Guarantor for the purposes of this Subsidiary Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Sources: Third Lien Indenture (Bed Bath & Beyond Canada L.P.)
Guarantees. (a) Subject to On and after the provisions of this Article XIssue Date, each Guarantor hereby jointly and severally, irrevocably, fully irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, Holder and to the extent lawful, Trustee and the Trustee, its successors and assigns (i) the full and punctual payment when due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Issuer under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, and or interest on in respect of the Notes and all other Obligations monetary obligations of the Issuer under this Indenture and the Notes and (including, without limitation, interest accruing after ii) the filing full and punctual performance within applicable grace periods of any petition in bankruptcy, or the commencement all other obligations of any insolvency, reorganization or like proceeding, relating to the Issuer whether for fees, expenses, indemnification or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding otherwise under this Indenture and the obligations under Section 7.6) Notes (all the foregoing being hereinafter collectively called the “Guarantor Guaranteed Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Guarantor, and that it each such Guarantor shall remain bound under this Article X 10 notwithstanding any extension or renewal of any Guaranteed Obligation. The Guaranteed Obligations of a Guarantor Obligationwill be secured by security interests in the Collateral owned by such Guarantor to the extent provided for in the Security Documents and as required pursuant to Sections 4.12 and 4.14.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, of payment from and protest to the Issuer of any of the Guarantor Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.Guaranteed
Appears in 1 contract
Guarantees. (a) Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each HolderHolder of the Notes, to the extent lawful, and the Trustee, Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes and all other Obligations of the Issuer under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (ai) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (bii) any extension or renewal of any thereof; (ciii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (div) the release of any security held by any Holder for the Guarantor Obligations or any of them; (ev) the failure of any Holder to exercise any right or remedy against any other Guarantor; (fvi) any [[5541447]] change in the ownership of the Issuer; (gvii) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (hviii) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principalprincipal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither None of the Issuer nor or the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security InterestsGuarantees” and (iii) other considerations under applicable law.
(k) If and to the extent that a Guarantor incorporated in Switzerland (a “Swiss Guarantor”) is liable under the Guarantees or any other provision of the Notes or this Indenture, for obligations other than obligations of one of its wholly owned subsidiaries (being obligations of its direct or indirect parent companies (an up-stream guarantee) or other group companies except fully owned direct or indirect subsidiaries of each Swiss Guarantor (a cross-stream guarantee)) (for purposes of this clause (k), [[5541447]] the “Restricted Obligations”), and that the making of a payment in fulfilling Restricted Obligations would under Swiss law (inter alia, prohibiting capital repayments or restricting distributions) at the time payment is due, not be permitted, then such obligations and payment amount shall from time to time be limited to the amount permitted to be paid under Swiss law; such amount currently considered to be the equivalent of the Swiss Guarantor’s distributable capital at the time or times payment is requested from the relevant Swiss Guarantor, and further provided that such limitation (as may apply from time to time or not) shall not (generally or definitively) release such Swiss Guarantor from payment obligations hereunder in excess thereof, but merely postpone the payment date therefore until such times as payment is again permitted notwithstanding such limitation. Any and all indemnities and guarantees contained in the Notes or this Indenture shall be construed in a manner consistent with the provisos herein contained. In case a Swiss Guarantor who must make a payment in respect of Restricted Obligations under its Guarantee is obliged to withhold Swiss Withholding Tax (Verrechnungssteuer) in respect of such payment, such Swiss Guarantor shall:
(i) procure that such payments can be made without deduction of Swiss Withholding Tax, or with deduction of Swiss Withholding Tax at a reduced rate, by discharging the liability to such tax by notification pursuant to applicable law (including double tax treaties) rather than payment of the tax;
(ii) if the notification procedure pursuant to sub-paragraph (i) above does not apply, deduct Swiss Withholding Tax at the rate of 35% (or such other rate as in force from time to time), or if the notification procedure pursuant to sub-paragraph (i) above applies for a part of the Swiss Withholding Tax only, deduct Swiss Withholding Tax at the reduced rate resulting after the discharge of part of such tax by notification under applicable law, from any payment made by it in respect of Restricted Obligations and promptly pay any such taxes to the Swiss Federal Tax Administration (Eidgenössische Steuerverwaltung);
(iii) notify the Trustee that such notification, or as the case may be, deduction has been made and provide the Trustee with evidence that such a notification of the Swiss Federal Tax Administration has been made or, as the case may be, such taxes deducted have been paid to the Swiss Federal Tax Administration;
(iv) in the case of a deduction of Swiss Withholding Tax:
(1) use its best efforts to ensure that any Person other than the Trustee which is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such payment in respect of Restricted Obligations, will, as soon as possible after such deduction (A) request a refund of the Swiss Withholding Tax under applicable law (including tax treaties) and (B) pay to the Trustee upon receipt any amounts so refunded; and
(2) if the Trustee is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such payment, shall provide the Trustee those documents that are required by law and applicable tax treaties to be provided by the payer of such tax, in order to enable the Trustee to prepare a claim for refund of Swiss Withholding Tax. If a Swiss Guarantor is obliged to withhold Swiss Withholding Tax in accordance with the previous paragraph, the Trustee shall be entitled to further enforce the Guarantees or any other indemnity granted by the respective Swiss Guarantor under the Notes or this Indenture and apply proceeds therefrom against the Restricted Obligations up to an amount which is equal to that amount which would have been obtained if no withholding of Swiss Withholding Tax were required, whereby such further enforcements shall always be limited to the maximum amount of the freely distributable capital of the respective Swiss Guarantor as set out in this Section 10.1(k). [[5541447]] If and to the extent a demand for payment against a Swiss Guarantor is made by the Trustee and if and to the extent required under Swiss mandatory law (with regards to restricting distributions) applicable at the relevant time, in order to allow the Trustee to obtain a maximum benefit under the Guarantees, the relevant Swiss Guarantor shall, and any parent company of the Swiss Guarantor being a party to this Indenture shall procure that the Swiss Guarantor will, promptly implement all such measures and/or promptly procure the fulfillment of all prerequisites allowing it to promptly make the (requested) payment(s) hereunder from time to time, including the following:
(i) preparation of an up-to-date audited balance sheet of the Swiss Guarantor;
(ii) obtain a confirmation of the auditors of the Swiss Guarantor confirming the maximum amount of the freely distributable capital of the relevant Swiss Guarantor;
(iii) approval by a shareholders’ meeting of the Swiss Guarantor of the capital distribution;
(iv) to the extent permitted by applicable law write up or realize any of the Swiss Guarantor’s assets that are shown in its balance sheet with a book value that is significantly lower than the market value of the assets, in case of realization, however, only if such assets are not necessary for the Swiss Guarantor’s business (nicht betriebsnotwendig); and
(v) all such other measures necessary or useful to allow the Swiss Guarantor to make the payments and perform the obligations hereunder with a minimum of limitations.
Appears in 1 contract
Guarantees. (a) Subject to the provisions of this Article X, each 13.01 Each Guarantor hereby jointly and severally, irrevocably, fully absolutely and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, : (i) to the extent lawful, and the Trustee, Holders the full and punctual prompt payment when due, due (whether at the stated maturity, by acceleration, by redemption acceleration or otherwise, ) of (x) the principal of, premium, if any, and interest on the Notes issued by the Borrower hereunder and (y) all other Obligations obligations (including obligations which, but for the automatic stay under Section 362(a) of the Issuer Bankruptcy Code, would become due), liabilities and indebtedness owing by the Borrower to the Holders under this Indenture Agreement, the Notes and the Notes Liquidation Certificates (including, without limitation, indemnities, fees and interest accruing after thereon), whether now existing or hereafter incurred under, arising out of or in connection with this Agreement, the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding Notes and the obligations under Section 7.6) Liquidation Certificates and the due performance and compliance by the Borrower with all of the terms, conditions and agreements contained in this Agreement, the Notes and the Liquidation Certificates (all the foregoing such principal, premium, interest, liabilities, indebtedness, obligations and indemnities being hereinafter herein collectively called the “Guarantor "Guaranteed Obligations”"). Each Guarantor understands, agrees (and confirms that the Holders may enforce the Guaranty up to the extent lawful) that amount of the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of against any Guarantor Obligation.
(b) Each without proceeding against any other Guarantor waives (to or the extent lawful) presentation toBorrower, demand of, payment from and protest to the Issuer of or under any other guaranty covering all or a portion of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Guaranteed Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (13.02 The Purchasers recognize and not a Guarantee of collection) acknowledge that, notwithstanding anything to the contrary contained in this Article 13, the Guarantors' obligations in this Article 13, and waives any right to require that any resort be had by any Holder to any security held for payment all of the Guarantor Obligations.
(d) Except Holders' rights and remedies in this Article 13, are subordinated on the same basis as the Guaranteed Obligation to which any such Guaranty relates, as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, Agreement and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this GuaranteeMezzanine Transaction Documents.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Guarantees. The Guarantor shall not create, incur, assume or suffer to exist any Guarantees other than this Guaranty except (ai) Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, to the extent lawful, and reflected in the Trustee, the full and punctual payment when due, whether at maturity, by acceleration, by redemption Guarantor’s financial statements or otherwise, of the principal of, premium, if any, and interest on the Notes and all other Obligations of the Issuer under this Indenture and the Notes notes thereto; (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6ii) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer of any aggregate Guarantees of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment those made pursuant to clauses (iii), (iv) and (v) below) do not exceed $5,000,000; (iii) of obligations of the Affiliate Guarantor Obligations to Textron Financial Corporation (“Textron”) arising in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (connection with loans to the extent lawfulAffiliate Guarantor from Textron in an aggregate amount of $ 50,000,000 at any time, (iv) be subject the Guaranty to any defense of setoffTextron with respect to that certain $25,000,000 Agreement for Wholesale Financing from Textron to ARC Housing LLC and ARC HousingTX LP dated February 18, counterclaim, recoupment or termination whatsoever or by reason of 2005; and (v) the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (Guaranty to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person Buyer under this Indenturethat certain Lease Receivables Facility provided, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescissionhowever, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
clause (hb) Each only the term “Guarantees” shall exclude Guarantees arising pursuant to customary carve-outs to limited recourse debt such as, for example, personal recourse to the Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization Subsidiary of the applicable Guarantor for fraud, willful misrepresentation, misapplication or misappropriation of cash, waste, environmental claims, damage to properties, non-payment of taxes or other liens despite the existence of sufficient cash flow, interference with the enforcement of loan documents upon maturity or acceleration, violation of loan document prohibitions against voluntary or involuntary bankruptcy filings, transfer of properties or ownership interests therein and defenses generally available to guarantors liabilities and other circumstances customarily excluded by lenders from exculpation provisions and/or included in such jurisdiction. For the avoidance separate indemnification agreements in non-recourse financings of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable lawreal estate.
Appears in 1 contract
Guarantees. (a) Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, to the extent lawful, the Trustee and the Trustee, Agent the full and punctual payment and performance when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes and all other Obligations of the Issuer Issuers under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer Issuers or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer Issuers of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in this Article X, Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoffset-off, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the IssuerIssuers or of any other Guarantor; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and or Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principalprincipal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer Issuers to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee Trustee, the Agents or the Trustee on behalf of the Holders and such Agents an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer Issuers or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee Trustee, the Agent or the Holders in enforcing any rights under this Section.
(i) Each Guarantor acknowledges and agrees that the Guarantee of such Guarantor will be a general senior obligation of such Guarantor and will rank senior in right of payment to all future obligations of such Guarantor that are, by their terms, expressly subordinated in right of payment to such Guarantee and equal in right of payment with all existing and future obligations of such Guarantor that are not so subordinated.
(j) Neither the Issuer Issuers nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(jk) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
(l) (i) The obligations and liabilities of any Guarantor incorporated in France (each such Guarantor, a “French Guarantor”) under the Notes or this Indenture and in particular under this Article X shall not include any obligation or liability which, if incurred, would constitute the provision of financial assistance within the meaning of article L.225-216 of the French Code de Commerce and/or would constitute a misuse of corporate assets within the meaning of articles L.242-6 or L.244-1 of the French Code de Commerce or any other law or regulation having the same effect, as interpreted by French courts.
Appears in 1 contract
Sources: Indenture (Ortho Clinical Diagnostics Holdings PLC)
Guarantees. (ai) Subject to Holdings, on a senior unsecured basis (the provisions of this Article X“Holdings Guarantee”), each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, Holder and to the extent lawful, Trustee and the Trustee, its successors and assignees (x) the full and punctual payment of principal of and interest on the Securities when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company under this Indenture with respect to the Securities and (y) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture with respect to the Securities and (ii) each Limited Guarantor in a Collateral Rig Guarantor Family, on a senior secured basis, hereby severally in respect of each other Collateral Rig Guarantor Family (but jointly and severally among the entities within such Collateral Rig Guarantor Family) guarantees up to the applicable Secured Limited Guarantee Cap outstanding immediately prior to the refinancing of the Existing Secured Notes (the “Secured Limited Guarantees,” and together with Holdings Guarantee, the “Guaranteed Obligations”) (x) the full and punctual payment of principal of, premium, if any, of and interest on the Notes Securities when due, whether at maturity, by acceleration, by redemption or otherwise, and all other Obligations monetary obligations of the Issuer Company under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating with respect to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed Securities and (y) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture with respect to the Securities, in such proceeding and each case subject to the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”)Secured Limited Guarantee Cap. Each Guarantor of Securities further agrees (to the extent lawful) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, such Guarantor and that it shall such Guarantor will remain bound under this Article X 11 notwithstanding any extension or renewal of any Guarantor Obligation.
(b) obligation. Each Guarantor of Securities waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer Company of any of the Guarantor Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor of Securities waives (to the extent lawful) notice of any default under the Notes Securities or the Guaranteed Obligations. The obligations of each Guarantor hereunder of Securities shall not be affected by (1) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person (including any Guarantor) under this Indenture with respect to the Securities or any other agreement or otherwise; (2) any extension or renewal of any thereof; (3) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture with respect to the Securities or any other agreement; (4) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (5) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations.
; or (c6) except as set forth in Section 11.06, any change in the ownership of such Guarantor. Each Guarantor of Securities further agrees that its Securities Guarantee herein constitutes a Guarantee guarantee of payment (subject to the Secured Limited Guarantee Cap, if applicable), performance and compliance when due (and not a Guarantee guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security Security held for payment of the Guarantor Guaranteed Obligations.
(d) . Except as expressly set forth in Section 10.2 Sections 9.01, 11.02 and Article VIII11.06 and subject to the Secured Limited Guarantee Cap, if applicable, the obligations of each Guarantor of Securities hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full)reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor of Securities herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against under this Indenture with respect to the Issuer Securities or any other Person under this Indentureagreement, the Notes or by any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenturethereof, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; obligations, or (h) by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any such Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor of Securities further agrees that its Securities Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal, premium, if any, principal of or interest on any of the Guarantor Obligations obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuer Company or otherwise.
(f) . In furtherance of the foregoing and not in limitation of any other right which any Holder of Securities or the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer Company to pay the principal of or interest on any of the Guarantor Obligations 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 Trustee Holders or the Trustee on behalf of the Holders an amount equal to the sum of (iA) the unpaid amount of such Guarantor Obligations then due and owing and Guaranteed Obligations, (iiB) accrued and unpaid interest on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) and (including interest accruing after C) all other monetary Guaranteed Obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating Company to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Holders and the Trustee. Each Guarantor further of Securities agrees that, as between such Guarantorit, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (xi) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture Article 6 for the purposes of its such Guarantor’s Securities Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Guaranteed Obligations guaranteed hereby hereby, and (yii) in the event of any such declaration of acceleration of such Guarantor ObligationsGuaranteed Obligations as provided in Article 6, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the such Guarantor for the purposes of this Guarantee.
(h) Section 11.01. Each Guarantor of Securities also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders any Holder in enforcing any rights under this SectionSection 11.01.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Sources: Indenture (Transocean Ltd.)
Guarantees. (a) Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully unconditionally and unconditionally irrevocably guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each HolderHolder of the Notes, to the extent lawful, and the Trustee, Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes and all other Obligations obligations of the Issuer under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principalprincipal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Sources: Indenture (Solgar)
Guarantees. (a) Subject to the provisions of this Article X, each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, severally with each other Guarantor, to each HolderHolder of the Notes, to the extent lawful, and the Trustee, Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes and all other Obligations obligations of the Issuer under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) and the Security Documents (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person person under this Indenture, the Notes Notes, the Security Documents, the Intercreditor Agreement or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Notes, the Security Documents, the Intercreditor Agreement or any other agreement; (d) the release of any security held by any Holder or the Collateral Agent for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principalprincipal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee Trustee, the Collateral Agent or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Guarantees. (a) Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as guarantor and not as a surety, with each other Guarantor, to each Holder, to the extent lawful, and the Trustee, the full and punctual payment and performance when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes and all other Obligations of the Issuer Issuers under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer Issuers or any Guarantor (or that would have accrued but for the filing of such petition or the commencement of such proceeding) whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer Issuers of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the IssuerIssuers or of any other Guarantor; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principalprincipal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer Issuers to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer Issuers or any Guarantor (or that would have accrued but for the filing of such petitition or the commencement of such proceeding) whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Each Guarantor acknowledges and agrees that the Guarantee of such Guarantor will be a general senior obligation of such Guarantor and will rank senior in right of payment to all future obligations of such Guarantor that are, by their terms, expressly subordinated in right of payment to such Guarantee and equal in right of payment with all existing and future obligations of such Guarantor that are not so subordinated.
(j) Neither the Issuer Issuers nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract
Sources: Indenture (Atotech LTD)
Guarantees. (a) Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully severally irrevocably and unconditionally guarantees, guarantees on a senior unsecured secured basis, as guarantor and not as a surety, with each other Guarantor, to each HolderHolder of the Notes, to the extent lawful, and the TrusteeTrustee and the Collateral Agent, the full performance and punctual payment when due, whether at maturityStated Maturity, by acceleration, by redemption acceleration or otherwise, of the principal of, premium, if any, and interest on the Notes and all other Obligations of the Issuer under this Indenture and the Notes (includingincluding interest which, without limitation, interest accruing after but for the filing of any a petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating bankruptcy with respect to the Issuer or Issuer, would have accrued on any Guarantor Obligation, whether or not a claim for post-filing or post-petition interest is allowed against the Issuer for such interest in such proceeding the related bankruptcy proceeding) to the Holders, the Trustee and the obligations under Section 7.6) Collateral Agent, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise (all the foregoing such obligations guaranteed by such Guarantors being hereinafter collectively herein called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Issuer of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and 10.2, 10.5 or Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principalprincipal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, 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 Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, examinership, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
(i) Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and defenses generally available to guarantors in such jurisdiction. For the avoidance of doubt, such limitations and defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such limitations and defenses as are described in the Offering Memorandum under the caption “Limitations on Validity and Enforceability of the Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 1 contract