Guarantees. (a) Ashland and each other Guarantor that guarantees the Notes pursuant to this Indenture, jointly and severally, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, to each Holder and the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by 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, or interest on the Notes and all other monetary obligations of the Company under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that such Guarantor shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Obligation. (b) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default under the Notes or the Guaranteed Obligations. (c) 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. (d) Except as expressly set forth in Section 10.02, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. (e) Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. 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 of, or any part thereof, principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or 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 Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the 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 it, on the one hand, and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01. (h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01. (i) 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.
Appears in 2 contracts
Sources: Indenture (Valvoline Inc), Indenture (Ashland Inc.)
Guarantees. (a) Ashland and each other Each Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, to each Holder and the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration or otherwise, of all obligations of the Company Issuer under this Indenture (including obligations to the Trustee) and the NotesSecurities, whether for payment of principal of, premium, if any, or interest on on, if any, the Notes Securities and all other monetary obligations of the Company Issuer under this Indenture and the Notes Securities and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuer whether for fees, expenses, indemnification or otherwise under this Indenture and the NotesSecurities, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article X XVI notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default default under the Notes Securities or the Guaranteed Obligations.
(c) 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.
(d) Except as expressly set forth in Section 10.0216.02, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise.
(e) Subject to Section 10.02 and 10.03 hereof16.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment of, or any part thereof, principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company 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 Company Issuer to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company Issuer to the 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 it, on the one hand, and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI V for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VIV, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.0116.01.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.0116.01.
(i) 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.
Appears in 2 contracts
Sources: Share Repurchase Agreement (American International Group Inc), Junior Subordinated Indenture (AerCap Global Aviation Trust)
Guarantees. (a) Ashland Subject to the provisions of this Article 10, each Guarantor hereby jointly and severally with each other Guarantor that guarantees the Notes pursuant to this Indenture, jointly and severallyGuarantor, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a suretysurety on a senior basis, to each Holder and Holder, the Trustee Trustee, the Collateral Agent and their respective successors and assigns (i) the full and punctual payment when due, whether at maturityStated Maturity, by acceleration acceleration, by redemption or otherwise, of all obligations of the Company Issuer under this Indenture (including obligations to the Trustee) and the NotesSecurities, whether for payment of principal of, or premium, if any, or interest on on, the Notes Securities and all other monetary obligations of the Company Issuer under this Indenture and the Notes Securities, and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuer, whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture Securities (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). .
(b) Each Guarantor further agrees that (to the extent permitted by law) the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article X 10 notwithstanding any extension or renewal of any Guaranteed Obligation. The Guaranteed Obligations of a Guarantor will be secured by security interests (subject to Permitted Liens) in the Notes Collateral owned by such Guarantor to the extent provided for in the Security Documents and as required pursuant to Sections 4.11 and 4.13.
(bc) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default 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 of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder Holder, the Trustee or the Trustee Collateral Agent to any security held for payment of the Guaranteed Obligations.
(df) Except as expressly set forth in Section Sections 8.01 and 10.02, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder, the Trustee or the Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Securities, any Security Document or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing that may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(eg) Subject to Section 10.02 Except as expressly set forth in Sections 8.01 and 10.03 hereof10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the its Guaranteed Obligations. Each Except as expressly set forth in Sections 8.01 and 10.02, each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment ofpayment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Trustee Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuer to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the TrusteeTrustee in accordance with this Indenture, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or the Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company Issuer then due to the TrusteeHolders, the Trustee and the Collateral Agent in respect of the Guaranteed Obligations.
(gi) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Trustee Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between it, on the one hand, and the TrusteeHolders, the Trustee and the Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(hj) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable and documented attorneys’ fees and expenses) incurred by the Trustee Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 10.01.
(ik) 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.
Appears in 2 contracts
Sources: Indenture (Egalet Us Inc.), Indenture (Egalet Corp)
Guarantees. 21.1 The US Guarantor hereby acknowledges having full and perfect knowledge of all its obligations under this agreement, notably their nature and scope, and hereby irrevocably guarantees to the Seller the fulfilment of all of the Purchaser’s obligations under this agreement should the Purchaser not fulfil them when due (“caution”). The Parties agree that the Seller shall have the right to make a claim to the US Guarantor only after a notice sent by the Seller to the Purchaser to comply with the agreement remains ineffective for fifteen (15) days (“mise en demeure restée sans effet”) with copy notified (by way of notice) to the US Guarantor sent on the same day. Consequently, the Seller shall then be entitled to initiate any legal or judicial action against the US Guarantor and the Purchaser provided that the summons/claim specifically requests and the judgment/arbitration award sentences the US Guarantor to execute the decision/award to the extent that it has not been enforced against the debtor within thirty (30) Business Days after the service of the summons to pay (“à défaut par le débiteur principal d’exécuter la decision dans ▇▇▇ ▇▇▇ jours suivant la signification d’un commandement de payer”). For the avoidance of doubt the US Guarantor will not be entitled to further claim the benefit of discussion (“bénéfice de discussion”) before the court.
21.2 The French Guarantor hereby acknowledges having full and perfect knowledge of all its obligations under this agreement, notably of all the obligations set out in clauses 12 (Protective Covenants), schedule 3 (Warranted Statements) and schedule 4 (Limitations on Claims), their nature (nature) and scope (l“étendue). He hereby irrevocably guarantees to the Purchaser the fulfilment of all of the Seller’s obligations under this agreement should the Seller not fulfil them when due (“caution”). The Parties agree that the Purchaser shall have the right to make a claim to the French Guarantor only after a notice sent by the Purchaser to the Seller to comply with the agreement remains ineffective for fifteen (15) days (“mise en demeure restée sans effet”) with copy notified (by way of notice) to the US Guarantor sent on the same day. and Consequently, the Purchaser shall then be entitled to initiate any legal or judicial action against the French Guarantor and the Seller provided that the summons / claim specifically requests and the judgment/arbitration award sentences the French Guarantor to execute the decision/award to the extent that it has not been enforced against the debtor within thirty (30) Business Days after the service of the summons to pay (“à défaut par le débiteur principal d’exécuter la decision dans ▇▇▇ ▇▇▇ jours suivant la signification d’un commandement de payer”). For the avoidance of doubt the French Guarantor will not be entitled to any further claim the benefit of discussion (“bénéfice de discussion”) before the court.
21.3 Any notice sent under clauses 21.1 and 21.2 above shall be deemed to be delivered in accordance with provisions of clause 15. The obligations of the US Guarantor and the French Guarantor under this clause 21 shall survive termination of this agreement (a) Ashland and each other Guarantor that guarantees the Notes pursuant as to this Indenture, jointly and severally, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, to each Holder and the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration or otherwise, of all any obligations of the Company under Seller or the Purchaser (as relevant) which survive termination of this Indenture agreement, and (including obligations b) as to the Trustee) and the Notes, whether for payment of principal of, premium, if any, or interest on the Notes and all other monetary any obligations of the Company under Seller or the Purchaser (as relevant) which remained unsatisfied as of the termination of this Indenture agreement.
21.4 The US Guarantor hereby represents and warrants to the Notes and Seller that:
(iia) the full US Guarantor has the power to execute this agreement and punctual performance within applicable grace periods of all other validly perform its obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that such Guarantor shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Obligation.hereunder;
(b) Each the US Guarantor waives presentation to, demand of payment from is a corporation duly organized and protest to validly existing under the Company of any laws of the Guaranteed Obligations and also waives notice State of protest for nonpayment. Each Guarantor waives notice Delaware, United States of any Default under the Notes or the Guaranteed Obligations.America;
(c) Each the execution, delivery and performance by the US Guarantor further agrees that of its Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and obligations under this agreement do not a guarantee of collection) and waives violate or conflict with 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.terms or provisions of the certificate of incorporation or by-laws of the US Guarantor;
(d) Except as expressly set forth in Section 10.02the execution, delivery and performance of this agreement and 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, other documents contemplated hereby are within the corporate power and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason authority of the invalidityUS Guarantor, illegality or unenforceability have been duly authorized by all necessary corporate action on the part of the Guaranteed Obligations or otherwise.US Guarantor and constitute a valid and binding agreements for the US Guarantor, enforceable against it in accordance with its terms;
(e) Subject there is no claim, action, lawsuit, arbitration, judicial or administrative proceeding pending or, to Section 10.02 the knowledge of the US Guarantor, threatened against the US Guarantor, which questions the valid execution, delivery or performance by the US Guarantor of its obligations under this agreement or any of the other documents referred to herein, or the consummation by the US Guarantor of the transaction contemplated hereby;
(f) the US Guarantor has filed or furnished, as applicable, all required registration statements, prospectuses, reports, schedules, forms, statements and 10.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force other documents (including exhibits and effect until payment in full of all the Guaranteed Obligations. Each Guarantor further agrees that its Guarantee herein shall continue other information incorporated by reference) required to be effective filed or be reinstatedfurnished, as applicable, by it with the US Securities and Exchange Commission (the SEC) since December 1, 2007. All such required registration statements, prospectuses, reports, schedules, forms, statements and other documents (including those that US Guarantor may file subsequent to the date hereof until the Completion) are referred to herein as the SEC Reports. As of their respective dates, the SEC Reports (i) were prepared in accordance with and complied in all material respects with the requirements of the US Securities Act of 1933, as amended, or the US Securities Exchange Act of 1934, as amended (the Exchange Act), as the case may be, and the rules and regulations of the SEC thereunder applicable to such SEC Reports, and (ii) did not at the time they were filed (or if at amended or superseded by a filing prior to the date of this Agreement then on the date of such filing) contain any time payment ofuntrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. None of the US Guarantor’s subsidiaries is required to file any forms, reports or other documents with the SEC;
(g) the financial statements of the US Guarantor included in the SEC Reports, as of their respective dates, comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, have been prepared in accordance with United States generally accepted accounting principles (US GAAP) (except, in the case of unaudited statements, as permitted by Form 10-Q of the SEC) applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto) and fairly present the consolidated financial position of the US Guarantor and its consolidated subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods then ended (subject, in the case of unaudited statements to normal year-end adjustments);
(h) the US Guarantor has no material liabilities of the type required by US GAAP to be reported in a balance sheet included in a Quarterly Report on Form 10-Q or Annual Report on Form 10-K other than (i) those required to be set forth or adequately provided for in the balance sheet included in the US Guarantor’s most recently filed Quarterly Report on Form 10-Q (including the notes thereto, the “Balance Sheet”), or any part thereof, principal (ii) those incurred in the ordinary course of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or business since the Trustee upon the bankruptcy or reorganization date of the Company or any of its Subsidiaries or otherwise.Balance Sheet, consistent with past practices;
(fi) In furtherance Except as disclosed in the SEC Reports, since the date of the foregoing most recent unaudited financial statements included in the SEC Reports and through the date of this agreement, there has not in limitation been (i) any declaration, setting aside or payment of any dividend or other right which any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, distribution (whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, stock or property) with respect to any of the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed ObligationsUS Guarantor’s capital stock, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to any amendment of any provision of the extent not prohibited by applicable law) and certificate of incorporation or bylaws of, or of any material term of any outstanding security issued by, the US Guarantor, (iii) all any material change in any method of accounting or accounting practice by the US Guarantor except for any such change required by a change in US GAAP, or (iv) any split, combination or reclassification of any of its capital stock or any issuance or the authorization of any issuance of any other monetary obligations securities in respect of, in lieu of, or in substitution for shares of the Company to the Trusteeits capital stock.
(g) Each 21.5 The US Guarantor covenants and agrees that it shall not be entitled cancel the trading of its common stock on AIM prior to December 31, 2008.
21.6 The US Guarantor shall indemnify the Seller against any right of subrogation in relation to Losses suffered by the Trustee in respect of Seller resulting from any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between it, on the one hand, and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI for the purposes of any Guarantee herein, notwithstanding any stay, injunction US Guarantor’s warranties being untrue or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01inaccurate.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(i) 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.
Appears in 2 contracts
Sources: Sale and Purchase Agreement (Research Pharmaceutical Services, Inc.), Sale and Purchase Agreement (Research Pharmaceutical Services, Inc.)
Guarantees. (a) Ashland and each other Each Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably and unconditionally guaranteesguarantees on an unsecured senior basis, as a primary obligor and not merely as a surety, to each Holder and to the Trustee and their its successors and assigns (i) the full performance and punctual payment when due, whether at maturityStated Maturity, by acceleration acceleration, by redemption or otherwise, of all obligations of the Company Issuer under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, or interest on or additional interest in respect of the Notes and all other monetary obligations of the Company Issuer under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuer whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default default under the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (i) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (ii) any extension or renewal of this Indenture, the Notes or any other agreement; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (iv) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any Guarantor; (v) the failure of any Holder or Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (vi) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
(c) Each Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Guarantors, such that such Guarantor’s obligations would be less than the full amount claimed. Each Guarantor hereby waives any right to which it may be entitled to have the assets of the Issuer first be used and depleted as payment of the Issuer’s or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder. Each Guarantor hereby waives any right to which it may be entitled to require that the Issuer be sued prior to an action being initiated against such Guarantor.
(d) Each Guarantor further agrees that its 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.
(de) Except as expressly set forth in Section 10.02Sections 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 obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(ef) Subject to Section 10.02 Except as expressly set forth in Sections 8.01, 9.01 and 10.03 hereof10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Each Except as expressly set forth in Sections 8.01, 9.01 and 10.02, each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment ofpayment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company Issuer to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company Issuer to the TrusteeHolders and the Trustee in respect of the Guaranteed Obligations.
(gh) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Trustee Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(hi) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(ij) Each Upon request of the Trustee, each Guarantor shall promptly execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
(k) Any Guarantee given by any Parent of the Issuer may be released at any time upon written notice to the Trustee from such Parent of the Issuer.
Appears in 2 contracts
Sources: Indenture (Intelsat S.A.), Indenture (Intelsat S.A.)
Guarantees. (a) Ashland and Subject to the provisions of this Article X, each other Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder of the Notes, to the extent lawful, and the Trustee and their successors and assigns (i) the Agents the full and punctual payment when due, whether at maturity, by acceleration 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, or and interest on the Notes and all other monetary obligations Obligations of the Company Issuer under this Indenture and the Notes and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuer or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture post-petition interest is allowed in such proceeding and the Notes, on the terms set forth in this Indenture by executing this Indenture obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guaranteed Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor it shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any Default default under the Notes or the Guaranteed Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Guarantor Obligations.
(d) Except as expressly set forth in Section 10.0210.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder 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) Subject to Section 10.02 and 10.03 hereof, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. 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 ofpayment, or any part thereof, of principal of of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Guarantor Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the TrusteeIssuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(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 itsuch Guarantor, on the one hand, and the TrusteeHolders, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article VI this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article VIGuarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(h) Each Guarantor also agrees to pay any and all fees, reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee Trustee, the Agents or any Holder the Holders in enforcing any rights under this Section 10.01Section.
(i) None of the Issuer or the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) 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 promptly execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper subject to carry out more effectively limitations in accordance with local law in the purpose jurisdiction of this Indentureorganization of the applicable Guarantor, in each case to the extent applicable.
Appears in 2 contracts
Sources: Indenture (Allison Transmission Holdings Inc), Indenture (Allison Transmission Holdings Inc)
Guarantees. (a) Ashland and each other Guarantor that guarantees (i) Each of the Notes pursuant to this IndentureSubsidiary Guarantors hereby, jointly and severally, irrevocably unconditionally and unconditionally guaranteesirrevocably, as a primary obligor and not merely as a suretyguarantees to the Administrative Agent, to each Holder and for the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration or otherwise, of all obligations ratable benefit of the Company under this Indenture (including obligations to Secured Parties the Trustee) prompt and the Notes, whether for complete payment of principal of, premium, if any, or interest on the Notes and all other monetary obligations performance of the Company under this Indenture and the Notes Obligations and (ii) the full Parent Guarantor hereby unconditionally and punctual performance within applicable grace periods of all other obligations irrevocably, guarantees to the Administrative Agent, for the ratable benefit of the Company whether for fees, expenses, indemnification or otherwise under this Indenture Secured Parties the prompt and complete payment and performance of the Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guaranteed European Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that such Guarantor shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest Anything herein or in any other Loan Document to the Company contrary notwithstanding, the maximum liability of any each Subsidiary Guarantor hereunder and under the other Loan Documents in respect of the Guaranteed Obligations Obligations, shall in no event exceed the amount which can be guaranteed by such Guarantor under applicable federal and also waives notice state laws relating to the insolvency of protest for nonpayment. Each Guarantor waives notice debtors (after giving effect to the right of any Default under the Notes or the Guaranteed Obligationscontribution established in Section 2.2).
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee of paymentthe Obligations, performance may at any time and compliance when due (and not a guarantee of collection) and waives any right from time to require that any resort be had by any Holder or time exceed the Trustee to any security held for payment amount of the Guaranteed Obligationsliability of such Guarantor hereunder without impairing the guarantees contained in this Section 2 or affecting the rights and remedies of the Administrative Agent or any other Secured Party hereunder.
(d) Except as expressly set forth Each Guarantor’s guarantees contained in this Section 10.02, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise.
(e) Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee 2 shall remain in full force and effect until all the Obligations ( other than contingent indemnification and contingent expense reimbursement obligations, Obligations in respect of Secured Hedge Agreements and Cash Management Obligations) of each Guarantor under the guarantees contained in this Section 2 shall have been satisfied by payment in full full, the Commitments have been terminated and either no Letter of all Credit shall be outstanding or each outstanding Letter of Credit has been cash collateralized so that it is fully secured to the Guaranteed 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 of, or any part thereof, principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization reasonable satisfaction of the Company or Administrative Agent, notwithstanding that from time to time during the term of the Credit Agreement any Loan Party may be free from any of its Subsidiaries or otherwisethe Obligations.
(fe) In furtherance of the foregoing and not Except as provided in limitation of any other right which any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the 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 it, on the one hand, and the Trustee, on the other handSection 4.14, (i) the maturity no payment made by any of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI for Subsidiary Guarantors, any other guarantor or any other Person or received or collected by the purposes Administrative Agent or any Secured Party from any of the Subsidiary Guarantors, any other guarantor or any other Person by virtue of any Guarantee hereinaction or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of any Subsidiary Guarantor hereunder which shall, notwithstanding any stay, injunction or such payment (other prohibition preventing than any payment made by such acceleration Subsidiary Guarantor in respect of the Guaranteed Obligations guaranteed herebyor any payment received or 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 fully secured to the reasonable satisfaction of the Administrative Agent and (ii) in no payment made by the event Parent Guarantor, any other guarantor or any other Person or received or collected by the Administrative Agent or any Secured Party from the Parent Guarantor, any other guarantor or any other Person by virtue of any declaration action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of acceleration or in payment of the European Obligations shall be deemed to modify, reduce, release or otherwise affect the liability the Parent Guarantor hereunder which shall, notwithstanding any such Guaranteed payment (other than any payment made by the Parent Guarantor in respect of the European Obligations as provided or any payment received or collected from the Parent Guarantor in Article VIrespect of the European Obligations), such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor remain liable for the purposes European Obligations up to the maximum liability of this Section 10.01the Parent Guarantor hereunder until the European Obligations are paid in full.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(i) 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.
Appears in 2 contracts
Sources: Guarantee Agreement (Constellation Brands, Inc.), Restatement Agreement (Constellation Brands, Inc.)
Guarantees. (a) Ashland and Subject to the provisions of this Article X, each other Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder Holder, to the extent lawful, and the Trustee and their successors and assigns (i) Trustee, the full and punctual payment when due, whether at maturity, by acceleration 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, or and interest on the Notes and all other monetary obligations Obligations of the Company Issuer under this Indenture and the Notes and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuer or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture post-petition interest is allowed in such proceeding and the Notes, on the terms set forth in this Indenture by executing this Indenture obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guaranteed Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor it shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any Default default under the Notes or the Guaranteed Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Guarantor Obligations.
(d) Except as expressly set forth in Section 10.0210.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder 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) Subject to Section 10.02 and 10.03 hereof, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. 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 ofpayment, or any part thereof, principal of principal, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Guarantor Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, examinership, reorganization or like proceeding relating to the TrusteeIssuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(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 itsuch Guarantor, on the one hand, and the TrusteeHolders, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article VI this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article VIGuarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(h) Each Guarantor also agrees to pay any and all fees, reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or any Holder the Holders in enforcing any rights under this Section 10.01Section.
(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 shall promptly execute and deliver defenses generally available to guarantors in such further instruments jurisdiction. For the avoidance of doubt, such limitations and do defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such further acts limitations and defenses as may be reasonably necessary or proper to carry out more effectively are described in the purpose Offering Memorandum under the caption “Limitations on Validity and Enforceability of this Indenturethe Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 2 contracts
Sources: Indenture (Mattel Inc /De/), Indenture (Mattel Inc /De/)
Guarantees. (a) Ashland Each of the Guarantors, as primary obligor and each other Guarantor that guarantees the Notes pursuant to this Indenturenot merely as surety, fully, jointly and severally, irrevocably and unconditionally guaranteesguarantees (each, as a primary obligor and not merely as a surety“Guarantee”), to each Holder of Securities (including each Holder of Securities issued under the Indenture after the date of this Indenture) and to the Trustee and their its successors and assigns (i) the full and punctual payment of principal of, premium, if any, and interest on the Securities when due, whether at maturity, by acceleration acceleration, by redemption or otherwise, of and all other monetary obligations of the Company under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, or interest on the Notes and all other monetary obligations of the Company under this Indenture and the Notes Securities and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that such Guarantor shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed ObligationSecurities.
(b) Each of the Guarantors further agrees that its obligations hereunder shall be unconditional irrespective of the absence or existence of any action to enforce the same, the recovery of any judgment against the Company or any other Guarantor waives presentation (except to the extent such judgment is paid) or any waiver or amendment of the provisions of this Indenture or the Securities to the extent that any such action or any similar action would otherwise constitute a legal or equitable discharge or defense of a Guarantor (except that each such waiver or amendment shall be effective in accordance with its terms).
(c) Each of the Guarantors further agrees that each Guarantee constitutes a guarantee of payment, performance and compliance and not merely of collection.
(d) Each of the Guarantors further agrees to waive presentment to, demand of payment from and protest to the Company of or any of the Guaranteed Obligations other Person, and also waives diligence, notice of acceptance of its Guarantee, presentment, demand for payment, notice of protest for nonpayment. Each Guarantor waives notice , the filing of claims with a court in the event of merger or bankruptcy of the Company or any Default under the Notes or the Guaranteed Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee of payment, performance other Person and compliance when due (and not a guarantee of collection) and waives any right to require that a proceeding first against the Company or any resort other Person. The obligations of the Guarantors shall not be had affected by any Holder failure or policy on the part of the Trustee to exercise any security held for payment right or remedy under this Indenture or the Securities of the Guaranteed Obligations.
(d) Except as expressly set forth in Section 10.02, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwiseseries.
(e) Subject to Section 10.02 and 10.03 hereof, The obligation of each Guarantor agrees that its Guarantee shall remain in full force and effect until to make any payment in full hereunder may be satisfied by causing the Company or any other Person to make such payment.
(f) If any Holder of all any Security or the Guaranteed Obligations. Each Guarantor further agrees that its Guarantee herein shall continue Trustee is required by any court or otherwise to be effective return to the Company or be reinstated, as the case may be, if at any time payment ofGuarantor, or any part thereofcustodian, principal of trustee, liquidator or interest on other similar official acting in relation to any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any Guarantor, any amount paid by any of its Subsidiaries or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder or them to the Trustee has at law or in equity against any Guarantor by virtue hereofsuch Holder, upon the failure Guarantee of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cashsuch Guarantor, to the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligationsextent theretofore discharged, (ii) accrued shall be reinstated in full force and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Trusteeeffect.
(g) Each Guarantor agrees that it Any term or provision of this Indenture to the contrary notwithstanding, the maximum aggregate amount of each of the Guarantees shall not exceed the maximum amount that can 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 it, on the one hand, and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights relevant Guarantor without rendering the relevant Guarantee under this Section 10.01Indenture voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally.
(i) 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.
Appears in 2 contracts
Sources: Indenture (Bath Iron Works Corp//), Indenture (Gulfstream Aerospace Corp)
Guarantees. (a) Ashland and each other Subject to Section 3.03 hereof, the Guarantor that guarantees the Notes pursuant to this Indenture, jointly and severally, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, to each Holder of the Affected Notes and the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration or otherwise, of all obligations of the Company under this the Indenture (including obligations to the Trustee) and the Affected Notes, whether for payment of principal of, premium, if any, or interest on the Affected Notes and all other monetary obligations of the Company under this the Indenture and the Affected 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 the Indenture and the Affected Notes, on the terms set forth in this Indenture by executing this the Indenture (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each The Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such the Guarantor, and that such the Guarantor shall remain bound under this Article X III notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Subject to Section 3.03 hereof, the Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each The Guarantor waives notice of any Default under the Affected Notes or the Guaranteed Obligations.
(c) Each Subject to Section 3.03 hereof, the 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.
(d) Except as expressly set forth in Section 10.023.02 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, 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.
(e) Subject to Section 10.02 Sections 3.02 and 10.03 3.03 hereof, each the Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Each Subject to Section 3.03 hereof, 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 payment of, or any part thereof, principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or 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 Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each 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 an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the 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. Each The Guarantor further agrees that, as between it, on the one hand, and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI Section 6.02 of the Original Indenture for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VISection 6.02 of the Original Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.013.01.
(h) Each Subject to Section 3.03 hereof, the Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable and documented attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.013.01.
(i) 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.
Appears in 2 contracts
Sources: Supplemental Indenture (Lazard Group LLC), Supplemental Indenture (Lazard, Inc.)
Guarantees. (a) Ashland and each other Each Guarantor that guarantees the Notes is a party hereto or that executes and delivers a supplemental indenture pursuant to this IndentureIndenture shall, upon execution and delivery of such supplemental indenture, fully, unconditionally and irrevocably guarantee, jointly and severally, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, to each Holder of the Notes and to the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration acceleration, by redemption or otherwise, of all obligations the principal of the Company under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any) and interest, or interest if any, on the Notes and all other monetary obligations of the Company Issuer under this Indenture and the Notes and (iithe “Note Obligations”) to the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture Trustee and the Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”)Holders. Each Guarantor further agrees (to the extent permitted by law) that the Guaranteed Note Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor it shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Note Obligation.
(b) Each Guarantor of the Guarantors waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Note Obligations and also waives notice of protest for nonpayment. Each Guarantor of the Guarantors waives notice of any Default default under the Notes or the Guaranteed Note Obligations. The obligations of each of the Guarantors hereunder shall not be affected by (1) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise, (2) any extension or renewal of any thereof, (3) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement, (4) the release of any security held by any Holder or the Trustee for the Note Obligations or any of them or (5) any change in the ownership of the Issuer.
(c) Each Guarantor of the Guarantors further agrees that its Guarantee herein constitutes a guarantee of payment, performance and compliance payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Note Obligations.
(d) Except as expressly set forth in Section 10.02, the The obligations of each Guarantor of the Guarantors hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Note Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Note Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each 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 Note Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of each of the Guarantors or would otherwise operate as a discharge of the Guarantors as a matter of law or equity.
(e) Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full Each of all the Guaranteed Obligations. 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 ofpayment, or any part thereof, of principal of of, premium, if any, or interest interest, if any, on any Guaranteed Obligation of the Note Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 of the Guarantors by virtue hereof, upon the failure of the Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Note Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor of the Guarantors hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Note Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Note Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the 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 Guarantors further agrees that, as between ititself, on the one hand, and the TrusteeHolders, on the other hand, (ix) the maturity of the Guaranteed Note Obligations guaranteed hereby may be accelerated as provided in Article VI this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Note Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article VINote Obligations, such Guaranteed Note Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01Guarantee.
(h) Each Guarantor of the Guarantors also agrees to pay any and all fees, reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder the Holders in enforcing any rights under this Section 10.0110.2.
(i) 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.
Appears in 2 contracts
Sources: Indenture (Hess Midstream LP), Indenture (Hess Midstream LP)
Guarantees. (a) Ashland and Subject to the provisions of this Article X, each other Subsidiary Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees, on a senior basis, as a primary obligor guarantor and not merely as a surety, to with each Holder and the Trustee and their successors and assigns (i) other Guarantor, the full and punctual payment when due, whether at maturityStated Maturity, by acceleration or otherwise, of all obligations Obligations of the Company Issuers under this Indenture and the Notes Documents (including obligations interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the TrusteeIssuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders and the NotesTrustee, whether for payment of principal of, premium, if any, or interest on the Notes and all other monetary obligations of the Company under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for feesNotes, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing such obligations guaranteed by such Subsidiary Guarantors being hereinafter collectively herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor shall it will remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any Default default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(d) Except as expressly set forth in Section 10.0210.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder shall will not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall will not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (ii) any extension or renewal of any thereof; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes, the Notes Collateral Agreement, the MYT Third Lien Notes Pledge Agreement or any other Notes Document; (iv) the release of any security held by any Holder for the Guaranteed Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Subject to Section 10.02 and 10.03 hereof, each Each Subsidiary Guarantor agrees that its Subsidiary Guarantee shall herein will remain in full force and effect until payment in full of all the Guaranteed ObligationsObligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. 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 ofpayment, or any part thereof, of principal of of, premium, if any, or interest on any of the Guaranteed Obligation Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Company Issuers to pay any of the principal of or interest on any Guaranteed Obligation Obligations when and as the same shall will become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and shallwill, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the TrusteeIssuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(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 Subsidiary Guarantor further agrees that, as between itsuch Subsidiary Guarantor, on the one hand, and the TrusteeHolders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby by this Guarantee may be accelerated as provided in Article VI this Indenture for the purposes of any its Subsidiary Guarantee hereinin this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article VIObligations, such Guaranteed Obligations (whether or not due and payable) shall will forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all fees, reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or any Holder the Holders in enforcing any rights under this Section 10.01Guarantee.
(i) Each Guarantor shall promptly execute No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and deliver any such further instruments and do such further acts as may notation will not be reasonably necessary or proper a condition to carry out more effectively the purpose validity of this Indentureany Guarantee.
Appears in 2 contracts
Sources: Indenture (Neiman Marcus Group LTD LLC), Indenture (Neiman Marcus Group LTD LLC)
Guarantees. (a) Ashland and each other Each Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably and unconditionally guaranteesguarantees on an unsecured basis, as a primary obligor and not merely as a surety, to each Holder and the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by 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, or interest on on, if any, the Notes and all other monetary obligations of the Company under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, in each case on the terms set forth in this Indenture including, without limitation Section 10.02 hereof, by executing this Indenture (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article X 10 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default default under the Notes or the Guaranteed Obligations.
(c) 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.
(d) Except as expressly set forth in Section 10.02Sections 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.
(e) Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. 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 ofpayment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or 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 Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the 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 it, on the one hand, and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(i) . 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.
Appears in 2 contracts
Guarantees. (a) Ashland and each other Each Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably and unconditionally guaranteesguarantees on a secured basis, as a primary obligor and not merely as a surety, to each Holder and the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration or otherwise, of all obligations of the Company Issuers under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, or interest on on, if any, the Notes and all other monetary obligations of the Company Issuers under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuers whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article X 10 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuers of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default default under the Notes or the Guaranteed Obligations.
(c) 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.
(d) Except as expressly set forth in Section 10.02Sections 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.
(e) Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. 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 ofpayment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or 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 Company Issuers to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee (or its designee) an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company Issuers to the 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 it, on the one hand, and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(i) . 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.
Appears in 2 contracts
Guarantees. (a) Ashland and Subject to the provisions of this Article X, each other Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder Holder, to the extent lawful, and the Trustee and their successors and assigns (i) Trustee, the full and punctual payment when due, whether at maturity, by acceleration 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 ofprincipal, premium, if any, or and interest on the Notes and all other monetary obligations Obligations of the Company Issuer under this Indenture and the Notes and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuer or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture post-petition interest is allowed in such proceeding and the Notes, on the terms set forth in this Indenture by executing this Indenture obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guaranteed Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor it shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any Default default under the Notes or the Guaranteed Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Guarantor Obligations.
(d) Except as expressly set forth in Section 10.0210.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder 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) Subject to Section 10.02 and 10.03 hereof, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. 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 ofpayment, or any part thereof, principal of principal, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Guarantor Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the TrusteeIssuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(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 itsuch Guarantor, on the one hand, and the TrusteeHolders, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article VI this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article VIGuarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(h) Each Guarantor also agrees to pay any and all fees, reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or any Holder the Holders in enforcing any rights under this Section 10.01Section.
(i) Each Guarantor Neither the Issuer nor the Guarantors shall promptly execute be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and deliver any such further instruments and do such further acts as may notation shall not be reasonably necessary or proper a condition to carry out more effectively the purpose validity of this Indentureany Guarantee.
Appears in 2 contracts
Sources: Indenture (CommScope Holding Company, Inc.), Indenture (CommScope Holding Company, Inc.)
Guarantees. (a) Ashland and Subject to the provisions of this Article X, each other Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder Holder, to the extent lawful, and the Trustee and their successors and assigns (i) Trustee, the full and punctual payment when due, whether at maturity, by acceleration 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, or and interest on the Notes and all other monetary obligations Obligations of the Company Issuer under this Indenture and the Notes and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuer or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture post-petition interest is allowed in such proceeding and the Notes, on the terms set forth in this Indenture by executing this Indenture obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guaranteed Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor it shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any Default default under the Notes or the Guaranteed Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Guarantor Obligations.
(d) Except as expressly set forth in Section 10.0210.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder 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) Subject to Section 10.02 and 10.03 hereof, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. 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 ofpayment, or any part thereof, principal of principal, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Guarantor Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, examinership, reorganization or like proceeding relating to the TrusteeIssuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(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 itsuch Guarantor, on the one hand, and the TrusteeHolders, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article VI this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article VIGuarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(h) Each Guarantor also agrees to pay any and all fees, reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or any Holder the Holders in enforcing any rights under this Section 10.01Section.
(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 shall promptly execute and deliver defenses generally available to guarantors in such further instruments jurisdiction. For the avoidance of doubt, such limitations and do defenses may include, but are not limited to, (i) those related to fraudulent conveyance, fraudulent transfer, voidable preference, financial assistance, corporate purpose, corporate benefit, capital maintenance, earnings stripping, retention of title claims and similar laws, regulations and defenses affecting the rights of creditors generally, (ii) such further acts limitations and defenses as may be reasonably necessary or proper to carry out more effectively are described in the purpose Offering Memorandum under the caption “Limitations on Validity and Enforceability of this Indenturethe Guarantees and the Security Interests” and (iii) other considerations under applicable law.
Appears in 2 contracts
Sources: Indenture (Mattel Inc /De/), Indenture (Mattel Inc /De/)
Guarantees. (a) Ashland and Subject to the provisions of this Article X, each other Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder of the Notes, to the extent lawful, and the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration 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, or and interest on the Notes and all other monetary obligations Obligations of the Company Issuer under this Indenture and the Notes and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuer, or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture post-petition interest is allowed in such proceeding and the Notes, on the terms set forth in this Indenture by executing this Indenture obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guaranteed Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor it shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any Default default under the Notes or the Guaranteed Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Guarantor Obligations.
(d) Except as expressly set forth in Section 10.0210.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder 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) Subject to Section 10.02 and 10.03 hereof, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII, as applicable. 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 ofpayment, or any part thereof, of principal of of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Guarantor Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the TrusteeIssuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(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 itsuch Guarantor, on the one hand, and the TrusteeHolders, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article VI this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article VIGuarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(h) Each Guarantor also agrees to pay any and all fees, reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or any Holder the Holders in enforcing any rights under this Section 10.0110.1.
(i) Each Guarantor Neither the Issuer nor the Guarantors shall promptly execute be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and deliver any such further instruments and do such further acts as may notation shall not be reasonably necessary or proper a condition to carry out more effectively the purpose validity of this Indentureany Guarantee.
Appears in 2 contracts
Sources: Indenture (Booz Allen Hamilton Holding Corp), Indenture (Booz Allen Hamilton Holding Corp)
Guarantees. (a) Ashland Each of AOL and each other Guarantor that guarantees the Notes pursuant to this IndentureTime Warner hereby, jointly and severally, unconditionally and irrevocably and unconditionally guaranteesguarantees to the Administrative Agent, as a primary obligor and not merely as a surety, to each Holder and for the Trustee ratable benefit of the Lenders and their successors respective successors, indorsees, transferees and assigns assigns, the prompt and complete payment and performance by the Designated Borrowers when due (i) the full and punctual payment when due, whether at the stated maturity, by 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, or interest on the Notes and all other monetary obligations of the Company under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that such Guarantor shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation toAOLTW hereby, demand of payment from jointly and protest severally, unconditionally and irrevocably guarantees to the Company of any Administrative Agent, for the ratable benefit of the Guaranteed 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 notice of protest for nonpayment. Each Guarantor waives notice of any Default under the Notes or the Guaranteed ObligationsAOLTWFI.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee of paymentTBS 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 and compliance by Time Warner when due (whether at the stated maturity, by acceleration or otherwise) of its obligations and not a guarantee of collectionliabilities under this Guarantee (the "Time Warner Obligations") 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 Obligationsincluding under Section 2(a) hereof.
(d) Except as expressly set forth in Section 10.02, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise.
(e) Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its This Guarantee shall remain in full force and effect until payment the Obligations are paid in full and the Commitments are terminated, notwithstanding that from time to time prior thereto either one or both of all the Guaranteed Designated Borrowers may be free from any Obligations. .
(e) Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstatedwhenever, as the case may be, if at any time payment oftime, or from time to time, it shall make any part thereof, principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or payment to the Trustee upon the bankruptcy or reorganization of the Company Administrative Agent or any Lender on account of its Subsidiaries or otherwiseliability hereunder, it will notify the Administrative Agent and such Lender in writing that such payment is made 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 or Credit Document to the Trustee has at law or in equity against any Guarantor by virtue hereofcontrary notwithstanding, upon the failure maximum liability of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to 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, such Guarantor under applicable federal and state laws relating to the Trustee an amount equal insolvency of debtors (after giving effect to the sum right of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Trusteecontribution established in Section 3 hereof).
(g) Each Guarantor agrees that it shall not be entitled to No payment or payments made by either of the Designated Borrowers, any right of subrogation in relation to the Trustee in respect 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 Guaranteed Obligations guaranteed hereby until action or proceeding or any setoff or appropriation or payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between it, on the one hand, and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may shall be accelerated as provided in Article VI for deemed to modify, reduce, release or otherwise affect the purposes liability of any Guarantee hereinGuarantor hereunder who shall, notwithstanding any stay, injunction such payment or payments (other prohibition preventing than payments made by such acceleration Guarantor in respect of the Guaranteed Obligations guaranteed herebyor payments received or collected from such Guarantor in respect of the Obligations), and (ii) remain liable for the Obligations and, in the event case of any declaration of acceleration TBS and TWCI, the Time Warner Obligations, up to the maximum liability of such Guaranteed Guarantor hereunder until the Obligations as provided are paid in Article VI, such Guaranteed Obligations (whether or not due full and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01Commitments are terminated.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(i) 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.
Appears in 2 contracts
Sources: Credit Agreement (Aol Time Warner Inc), Credit Agreement (Aol Time Warner Inc)
Guarantees. (a) Ashland Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each other Subsidiary Guarantor hereby covenants that guarantees its Subsidiary Guarantee shall not be discharged except by complete performance of the Notes pursuant to obligations contained in its Subsidiary Guarantee and this Indenture, jointly and severally, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, to each Holder and the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by 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, or interest on the Notes and all other monetary obligations of the Company under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that such Guarantor shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default under the Notes or the Guaranteed Obligations.
(c) 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 If any Holder or the Trustee is required by any court or otherwise to any security held for payment of return to the Guaranteed Obligations.
(d) Except as expressly set forth in Section 10.02Company, the obligations of each Guarantor hereunder Subsidiary Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Subsidiary Guarantors any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, 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.
(e) Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee shall remain reinstated in full force and effect until payment in full of all the Guaranteed Obligationseffect. 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 of, or any part thereof, principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or 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 Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Trustee.
(g) Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Trustee Holders in respect of any Guaranteed Obligations obligations guaranteed hereby until payment in full of all Guaranteed Obligationsobligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (ix) the maturity of the Guaranteed Obligations obligations guaranteed hereby may be accelerated as provided in Article VI Section 6.02 hereof for the purposes of any Guarantee hereinthis Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations obligations guaranteed hereby, hereby and (iiy) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article VISection 6.02 hereof, such Guaranteed Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor the Subsidiary Guarantors for the purposes of this Section 10.01.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(i) 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 IndentureSubsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary Guarantee.
Appears in 2 contracts
Sources: Indenture (Digex Inc/De), Indenture (Intermedia Communications Inc)
Guarantees. (a) Ashland and Subject to the provisions of this Article X, each other Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder of the Notes, to the extent lawful, and the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration 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, or and interest on the Notes and all other monetary obligations Obligations of the Company Issuer under this Indenture and the Notes and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuer or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture post-petition interest is allowed in such proceeding and the Notes, on the terms set forth in this Indenture by executing this Indenture obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guaranteed Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor it shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any Default default under the Notes or the Guaranteed Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Guarantor Obligations.
(d) Except as expressly set forth in Section 10.0210.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder 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) Subject to Section 10.02 and 10.03 hereof, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. 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 ofpayment, or any part thereof, of principal of of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Guarantor Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the TrusteeIssuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(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 itsuch Guarantor, on the one hand, and the TrusteeHolders, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article VI this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article VIGuarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(h) Each Guarantor also agrees to pay any and all fees, reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or any Holder the Holders in enforcing any rights under this Section 10.01Section.
(i) None of the Issuer or the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) 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 promptly execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper subject to carry out more effectively limitations in accordance with local law in the purpose jurisdiction of this Indentureorganization of the applicable Guarantor, in each case to the extent applicable.
Appears in 2 contracts
Sources: Indenture (Allison Transmission Holdings Inc), Indenture (Allison Transmission Holdings Inc)
Guarantees. (a) Ashland Each Guarantor hereby fully, unconditionally and each other Guarantor that guarantees the Notes pursuant to this Indenture, jointly and severally, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, jointly and severally with each other Guarantor, to each Holder of the Notes and the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration acceleration, by redemption, by repurchase, 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, or and interest on the Notes and all other monetary obligations of the Company under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this First Supplemental Indenture (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees (to the extent permitted by law) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor shall it will remain bound under this Article X VI notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default default under the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this First Supplemental 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 First Supplemental Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; or (f) any change in the ownership of the Company.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee of payment, performance and compliance payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(d) Except as expressly set forth in Section 10.02, the The obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder to assert any claim or demand or to enforce any remedy under this First Supplemental Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. 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 ofpayment, or any part thereof, of principal of or interest on any Guaranteed Obligation of the Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the 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 Company to pay any of the principal of or interest on any Guaranteed Obligation Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption redemption, by repurchase or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shallwill, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the 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 itsuch Guarantor, on the one hand, and the TrusteeHolders, on the other hand, (ix) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI this First Supplemental Indenture and the Original Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article VIObligations, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(h) Each Guarantor also agrees to pay any and all fees, reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or any Holder the Holders in enforcing any rights under this Section 10.01Section.
(i) 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.
Appears in 2 contracts
Sources: First Supplemental Indenture (Choice Hotels International Inc /De), First Supplemental Indenture (Choice Hotels International Services Corp.)
Guarantees. Within 120 days following the Closing Date, Purchaser shall either (a) Ashland arrange for substitute letters of credit, Purchaser guarantees and each other Guarantor that guarantees the Notes pursuant obligations to this Indenture, jointly and severally, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, to each Holder and the Trustee and their successors and assigns replace (i) the full project-related performance and punctual advance payment when dueand retention bonds, whether at maturityproject-related performance guaranties, by acceleration or otherwiseother guaranty obligations, letters of all credit and other similar arrangements of Sellers and their Affiliates relating to the obligations of the Company under this Indenture (including obligations Business Companies relating to the Trustee) and Business or otherwise relating to or for the Notes, whether for payment of principal of, premium, if any, or interest on the Notes and all other monetary obligations benefit of the Company under this Indenture Business that remain outstanding as of the Closing Date, all of which relate to the Business to be conducted from and after the Notes Closing (the “Guarantees”) and (ii) any Guarantees entered into by or on behalf of Sellers or any of their Affiliates on or after the full date of this Agreement and punctual performance within applicable grace periods prior to the Closing which are entered into in the ordinary course of all other obligations business, consistent with past practices for the benefit of the Company whether Business and consistent with the provisions contained in Section 5.01 and are outstanding as of the Closing Date, it being understood that Purchaser shall only be required to substitute a Purchaser guarantee for fees, expenses, indemnification any guarantees of Sellers or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that such Guarantor shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation toassume all obligations under each Guarantee, demand and use commercially reasonable efforts to obtain from the creditor or other counterparty a full release of payment from and protest all parties liable, directly or indirectly, for reimbursement to the Company creditor or fulfillment of any other obligations to a counterparty in connection with amounts drawn under a Guarantee. Within 120 days following the Closing Date, Purchaser shall, if unsuccessful in its efforts to replace the Guarantees, (x) provide to Sellers a stand-by letter of credit, in form and substance reasonably satisfactory to Sellers, from a nationally recognized bank or financial institution and in favor of Sellers for the full amount of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default obligations under the Notes or the Guaranteed Obligations.
(c) Each Guarantor further agrees that its each such Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(d) Except as expressly set forth in Section 10.02, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise.
(e) Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. 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 of, or any part thereof, principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or 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 Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iiiy) all other monetary obligations of the Company to the 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 thatindemnify, as between it, on the one hand, defend and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI hold harmless Sellers and their Affiliates against and reimburse Sellers and their Affiliates for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(h) Each Guarantor also agrees to pay any and all fees, amounts paid under such Guarantees and costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01associated with such Guarantees.
(i) 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.
Appears in 2 contracts
Sources: Purchase Agreement (Dresser Inc), Purchase Agreement (Cooper Cameron Corp)
Guarantees. (a) Ashland and Subject to the provisions of this Article X, each other Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, unconditionally and irrevocably and unconditionally guarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder of the Notes, to the extent lawful, and the Trustee the performance and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration 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, or and interest on the Notes and all other monetary obligations of the Company Issuer under this Indenture and the Notes and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuer or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture post-petition interest is allowed in such proceeding and the Notes, on the terms set forth in this Indenture by executing this Indenture obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guaranteed Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor it shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any Default default under the Notes or the Guaranteed Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Guarantor Obligations.
(d) Except as expressly set forth in Section 10.0210.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder 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) Subject to Section 10.02 and 10.03 hereof, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. 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 ofpayment, or any part thereof, of principal of of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Guarantor Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the TrusteeIssuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(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 itsuch Guarantor, on the one hand, and the TrusteeHolders, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article VI this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article VIGuarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(h) Each Guarantor also agrees to pay any and all fees, reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or any Holder the Holders in enforcing any rights under this Section 10.01Section.
(i) Each Guarantor Neither the Issuer nor the Guarantors shall promptly execute be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and deliver any such further instruments and do such further acts as may notation shall not be reasonably necessary or proper a condition to carry out more effectively the purpose validity of this Indentureany Guarantee.
Appears in 2 contracts
Sources: Indenture (CommScope Holding Company, Inc.), Indenture (CommScope Holding Company, Inc.)
Guarantees. (a) Ashland and each other Each Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably and unconditionally guaranteesguarantees on a senior unsecured basis, as a primary obligor and not merely as a surety, to each Holder and to the Trustee and their its successors and assigns (i) the full performance and punctual payment when due, whether at maturityStated Maturity, by acceleration acceleration, by redemption or otherwise, of all obligations of the Company Issuer under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, or interest on or additional interest in respect of the Notes and all other monetary obligations of the Company Issuer under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuer whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default default under the Notes or the Guaranteed Obligations.
(c) 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.
(d) Except as expressly set forth in Section 10.02, the . The obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim affected by (i) the failure 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.
(e) Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. 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 of, or any part thereof, principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon to assert any claim or demand or to enforce any right or remedy against the bankruptcy or reorganization of the Company Issuer or any of its Subsidiaries other Person under this Indenture, the Notes or any other agreement 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 Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, ; (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the 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 it, on the one hand, and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI for the purposes of any Guarantee herein, notwithstanding any stay, injunction extension or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(i) 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 renewal of this Indenture., the Notes or any other agreement;
Appears in 1 contract
Sources: Indenture (Intelsat S.A.)
Guarantees. (a) Ashland Subject to the provisions of this Article 10, each Guarantor hereby jointly and severally with each other Guarantor that guarantees the Notes pursuant to this Indenture, jointly and severallyGuarantor, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a suretysurety on a senior basis, to each Holder and Holder, the Trustee Trustee, the Collateral Agent and their respective successors and assigns (i) the full and punctual payment when due, whether at maturityStated Maturity, by acceleration acceleration, by redemption or otherwise, of all obligations of the Company Issuer under this Indenture (including obligations to the Trustee) and the NotesSecurities, whether for payment of principal of, or premium, if any, or interest on on, the Notes Securities and all other monetary obligations of the Company Issuer under this Indenture and the Notes Securities, and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuer, whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture Securities (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). .
(b) Each Guarantor further agrees that (to the extent permitted by law) the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article X 10 notwithstanding any extension or renewal of any Guaranteed Obligation. The Guaranteed Obligations of a Guarantor will be secured by security interests (subject to Permitted Liens) in the Notes Collateral owned by such Guarantor to the extent provided for in the Security Documents and as required pursuant to Sections 4.11 and 4.13.
(bc) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default 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 of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder Holder, the Trustee or the Trustee Collateral Agent to any security held for payment of the Guaranteed Obligations.
(df) Except as expressly set forth in Section 10.028.01, Section 10.02 and Paragraph 19 of the form of Security set forth in Exhibit A hereto, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder, the Trustee or the Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Securities, any Security Document or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing that may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(eg) Subject to Section 10.02 Except as expressly set forth in Sections 8.01 and 10.03 hereof10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the its Guaranteed Obligations. Each Except as expressly set forth in Sections 8.01 and 10.02, each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment ofpayment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Trustee Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuer to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the TrusteeTrustee in accordance with this Indenture, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or the Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company Issuer then due to the TrusteeHolders, the Trustee and the Collateral Agent in respect of the Guaranteed Obligations.
(gi) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Trustee Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between it, on the one hand, and the TrusteeHolders, the Trustee and the Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(hj) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable and documented attorneys’ fees and expenses) incurred by the Trustee Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 10.01.
(ik) 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.
Appears in 1 contract
Sources: Indenture (Egalet Corp)
Guarantees. (a) Ashland and each other Each Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably and unconditionally guaranteesguarantees on a secured basis, as a primary obligor and not merely as a surety, to each Holder and the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration or otherwise, of all obligations of the Company Issuer under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, or interest on on, if any, the Notes and all other monetary obligations of the Company Issuer under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuer whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article X Ten notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default default under the Notes or the Guaranteed Obligations.
(c) 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.
(d) Except as expressly set forth in Section Sections 8.01(b), 10.02, 10.03 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.
(e) Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. 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 ofpayment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company Issuer to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee (or its designee) an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company Issuer to the 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 it, on the one hand, and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI Six for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VISix, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(i) . 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.
Appears in 1 contract
Sources: Indenture (Kronos Worldwide Inc)
Guarantees. (a) Ashland and Subject to the provisions of this Article X, each other Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder Holder, to the extent lawful, and the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration 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, or and interest on the Notes and all other monetary obligations Obligations of the Company Issuers under this Indenture and the Notes and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuers or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture post-petition interest is allowed in such proceeding and the Notes, on the terms set forth in this Indenture by executing this Indenture obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guaranteed Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor shall it will remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuers of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any Default default under the Notes or the Guaranteed Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Guarantor Obligations.
(d) Except as expressly set forth in Section 10.0210.2 and Article VIII, the obligations of each Guarantor hereunder shall will not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall will not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (ii) any extension or renewal of any thereof; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (iv) the release of any security held by any Holder for the Guarantor Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (viii) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Subject to Section 10.02 and 10.03 hereof, each Each Guarantor agrees that its Guarantee shall herein will remain in full force and effect until payment in full of all the Guaranteed Obligations. Each Guarantor further agrees that Obligations or such Guarantor is released from its Guarantee herein shall continue to be effective or be reinstatedin compliance with Section 4.1, as the case may be, if at any time payment of, or any part thereof, principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries or otherwise.
(f) In furtherance of the foregoing Section 10.2 and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the 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 it, on the one hand, and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(i) 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.Article
Appears in 1 contract
Guarantees. (a) Ashland and each other Each Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a suretysurety on a senior basis, to each Holder and to the Trustee and their its successors and assigns (i) the full and punctual payment when due, whether at maturityStated Maturity, by acceleration acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee) Trustee and the Notes Collateral Agent) under this Indenture, the Notes, the Security Documents and the Intercreditor Agreement, whether for payment of principal of, premium, if any, or interest on the Notes and all other monetary obligations of the Company under this Indenture Indenture, the Notes, the Security Documents and the Notes Intercreditor Agreement and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and Indenture, the Notes, on the terms set forth in this Indenture by executing this Indenture Security Documents and the Intercreditor Agreement (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that 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 will be secured by security interests in the Collateral owned by such Guarantor to the extent provided for in the Security Documents and as required pursuant to Sections 4.12 and 4.15.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default default under the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (i) the failure of any Holder, the Trustee or the Notes Collateral Agent to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes, 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 Agent for the Guaranteed Obligations or any Guarantor; (v) the failure of any Holder, Trustee or the Notes Collateral Agent to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (vi) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
(c) Subject to Section 10.02(a), each Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Guarantors, such that such Guarantor’s obligations would be less than the full amount claimed. Each Guarantor hereby waives any right to which it may be entitled to have the assets of the Company or any other Guarantor first be used and depleted as payment of the Company’s or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder. Each Guarantor hereby waives any right to which it may be entitled to require that the Company be sued prior to an action being initiated against such Guarantor.
(d) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder Holder, the Trustee or the Trustee Notes Collateral Agent to any security held for payment of the Guaranteed Obligations.
(de) Except as expressly set forth in Section 10.02Sections 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 compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder, the Trustee or the Notes Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes, any Security Document or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(ef) Subject to Section 10.02 Except as expressly set forth in Sections 8.01 and 10.03 hereof10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Each Except as expressly set forth in Sections 8.01 and 10.02, each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment ofpayment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries or otherwise.
(fg) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee or Notes Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the TrusteeTrustee in accordance with this Indenture, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Notes Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company then due to the TrusteeHolders, the Trustee and the Notes Collateral Agent in respect of the Guaranteed Obligations.
(gh) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Trustee Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between it, on the one hand, and the TrusteeHolders, the Trustee and the Notes Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(hi) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee Trustee, the Notes Collateral Agent or any Holder in enforcing any rights under this Section 10.01.
(ij) Each Upon request of the Trustee, each Guarantor shall promptly execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
Appears in 1 contract
Sources: Indenture (Metals USA Plates & Shapes Southcentral, Inc.)
Guarantees. (a) Ashland and Subject to the provisions of this Article X, each other Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder Holder, to the extent lawful, and the Trustee and their successors and assigns (i) Trustee, the full and punctual payment when due, whether at maturity, by acceleration 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 ofprincipal, premium, if any, or and interest on the Notes and all other monetary obligations Obligations of the Company Issuer under this Indenture and the Notes and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuer or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture post-petition interest is allowed in such proceeding and the Notes, on the terms set forth in this Indenture by executing this Indenture obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guaranteed Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor it shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any Default default under the Notes or the Guaranteed Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Guarantor Obligations.
(d) Except as expressly set forth in Section 10.02, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise.
(e) Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. 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 of, or any part thereof, principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or 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 Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the 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 it, on the one hand, and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(i) 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.
Appears in 1 contract
Guarantees. (a) Ashland and Subject to the provisions of this Article X, each other Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, severally irrevocably and unconditionally guaranteesguarantees on a senior secured basis, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder of the Notes, to the extent lawful, and the Trustee and their successors and assigns (i) the full Collateral Agent, the performance and punctual payment when due, whether at maturityStated Maturity, by acceleration or otherwise, of all obligations Obligations of the Company Issuer under this Indenture and the Notes (including obligations interest which, but for the filing of a petition in bankruptcy with respect to the TrusteeIssuer, would have accrued on any Obligation, whether or not a claim is allowed against the Issuer for such interest in the related bankruptcy proceeding) to the Holders, the Trustee and the NotesCollateral Agent, whether for payment of principal of, premium, if any, or interest on the Notes and all other monetary obligations of the Company under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for feesNotes, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing such obligations guaranteed by such Guarantors being hereinafter collectively herein called the “Guaranteed Guarantor Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guaranteed Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor it shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any Default default under the Notes or the Guaranteed Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Guarantor Obligations.
(d) Except as expressly set forth in Section 10.0210.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder 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) Subject to Section 10.02 and 10.03 hereof, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2, 10.5 or Article VIII. 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 ofpayment, or any part thereof, of principal of of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the 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 it, on the one hand, and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(i) 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.
Appears in 1 contract
Guarantees. (a) Ashland In respect of Notes issued on or before December 31, 2021, the States of Belgium, France and each other Guarantor that guarantees the Notes pursuant to this Indenture, jointly and Luxembourg as Guarantors will severally, irrevocably and unconditionally guaranteesbut not jointly, as a primary obligor and not merely as a suretyguarantee, to each Holder and the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trusteeextent of its percentage share indicated in the Independent On-Demand Guarantee, dated January 24, 2013, payments of principal, interest and incidental amounts due with respect to such Notes (the "Tri- Guarantor Guarantee") and subject to the Notes, whether for payment of principal of, premium, if any, or interest on the Notes and all other monetary obligations of the Company under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms limitations set forth in Clause 3 thereof. The Tri-Guarantor Guarantee is an unconditional and irrevocable on-demand guarantee. For further information on the Tri-Guarantor Guarantee, see the section entitled "The Guarantees—Tri-Guarantor Guarantee" in this Indenture by executing this Indenture (all Base Prospectus. In respect of Notes issued on or after January 1, 2022, the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewedStates of Belgium and France as Guarantors will, in whole or in partseverally but not jointly, without notice or further assent from guarantee, each such Guarantor, and that such Guarantor shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company extent of any its percentage share indicated in an amended and restated Independent On-Demand Guarantee to be entered into after the date of this Base Prospectus but before January 1, 2022, payments of principal, interest and incidental amounts due with respect to such Notes (the Guaranteed Obligations "Bi- Guarantor Guarantee" and, together with the Tri-Guarantor Guarantee, as the context so requires, the "Guarantees" and also waives notice each a "Guarantee") and subject to the limitations to be set forth therein. The State of protest Luxembourg will not guarantee Notes issued on or after January 1, 2022. As from January 1, 2022, the aggregate amount payable for nonpayment. Each all obligations (including the Notes) issued by the Issuer and benefitting from either the Tri-Guarantor waives notice of any Default under the Notes Guarantee or the Guaranteed Obligations.
Bi-Guarantor Guarantee outstanding at any time (c) Each the obligations issued by the Issuer and benefitting from the Tri- 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.
(d) Except as expressly set forth in Section 10.02, the obligations of each Bi-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.
(e) Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstatedGuarantee, as the case may be, if being the "Guaranteed Obligations") is expected to be capped at any time payment of, or any part thereof, principal a maximum amount of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored EUR 75,000,000,000 by any Holder or the Trustee upon the bankruptcy or reorganization virtue of the 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 Bi-Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantee. The Bi-Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause Guarantee is expected to be paid, in cash, to an unconditional and irrevocable on-demand guarantee. The Issuer will supplement the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued Programme and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the 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 it, on the one hand, and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration this Base Prospectus in respect of the Guaranteed Obligations guaranteed herebyBi-Guarantor Guarantee following the execution of it by the States of Belgium and France. For further information on the Bi-Guarantor Guarantee, see the section entitled "The Guarantees—The Bi-Guarantor Guarantee" in this Base Prospectus. Notes issued on or before December 31, 2021 will continue to be guaranteed, severally but not jointly, by the States of Belgium, France and (ii) Luxembourg in accordance with the event Tri-Guarantor Guarantee and the obligations of any declaration the States of acceleration Belgium, France and Luxembourg in respect of such Guaranteed Obligations as provided Notes shall not in Article VI, such Guaranteed Obligations (whether any way by amended or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred varied by the Trustee or any Holder in enforcing any rights under this Section 10.01Bi-Guarantor Guarantee.
(i) 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.
Appears in 1 contract
Guarantees. (a) Ashland and Subject to the provisions of this Article X, each other Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder and Holder, to the extent lawful, the Trustee and their successors and assigns (i) the Agent the full and punctual payment and performance when due, whether at maturity, by acceleration 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, or and interest on the Notes and all other monetary obligations Obligations of the Company Issuers under this Indenture and the Notes and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuers or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture post-petition interest is allowed in such proceeding and the Notes, on the terms set forth in this Indenture by executing this Indenture obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guaranteed Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor it shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuers of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any Default default under the Notes or the Guaranteed Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Guarantor Obligations.
(d) Except as expressly set forth in this Article X, Section 10.0210.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoffset-off, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (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 Issuers 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) Subject to Section 10.02 and 10.03 hereof, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 or Article VIII. 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 ofpayment, or any part thereof, of principal of of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company Issuers to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee, the Agents or the Trustee on behalf of the Holders and such Agents an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Guarantor Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the TrusteeIssuers or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(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 itsuch Guarantor, on the one hand, and the TrusteeHolders, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article VI this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article VIGuarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(h) Each Guarantor also agrees to pay any and all fees, reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee Trustee, the Agent or any Holder the Holders in enforcing any rights under this Section 10.01Section.
(i) Each Guarantor acknowledges and agrees that the Guarantee of such Guarantor will be a general senior obligation of such Guarantor and will rank senior in right of payment to all future obligations of such Guarantor that are, by their terms, expressly subordinated in right of payment to such Guarantee and equal in right of payment with all existing and future obligations of such Guarantor that are not so subordinated.
(j) Neither the Issuers nor the Guarantors shall promptly execute be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and deliver any such further instruments notation shall not be a condition to the validity of any Guarantee.
(k) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and do defenses generally available to guarantors in such further acts 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 may be reasonably necessary 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 proper to carry out more effectively this Indenture and in particular under this Article X shall not include any obligation or liability which, if incurred, would constitute the purpose provision of this Indenturefinancial 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. (a) Ashland and Subject to the provisions of this Article X, each other Subsidiary Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees, on a senior basis, as a primary obligor guarantor and not merely as a surety, to with each Holder and the Trustee and their successors and assigns (i) other Guarantor, the full and punctual payment when due, whether at maturityStated Maturity, by acceleration or otherwise, of all obligations Obligations of the Company Issuers under this Indenture and the Notes Documents (including obligations interest that, but for the filing of a petition in any bankruptcy or other insolvency proceeding with respect to the TrusteeIssuers, would have accrued on any Obligation, whether or not a claim is allowed against the Issuers for such interest in the related bankruptcy proceeding) to the Holders, the Trustee and the Noteseach Agent, whether for payment of principal of, premium, if any, or interest on the Notes and all other monetary obligations of the Company under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for feesNotes, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing such obligations guaranteed by such Subsidiary Guarantors being hereinafter collectively herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees (to the extent lawful) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor shall it will remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Subsidiary Guarantor Obligation.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuers of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any Default default under the Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(d) Except as expressly set forth in Section 10.0210.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder shall will not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall will not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder, the Trustee or any Agent to assert any claim or demand or to enforce any right or remedy against the Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (ii) any extension or renewal of any thereof; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes, the Notes Collateral Agreement, the MYT Guarantee and Collateral Agreement or any other Notes Document; (iv) the release of any security held by any Holder, the Trustee or any Agent for the Guaranteed Obligations or any of them; (v) the failure of any Holder, the Trustee or any Agent to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Subsidiary Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Subject to Section 10.02 and 10.03 hereof, each Each Subsidiary Guarantor agrees that its Subsidiary Guarantee shall herein will remain in full force and effect until payment in full of all the Guaranteed ObligationsObligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. 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 ofpayment, or any part thereof, of principal of of, premium, if any, or interest on any of the Guaranteed Obligation Obligations is rescinded or must otherwise be restored by any Holder or Holder, the Trustee or any Agent upon the bankruptcy or reorganization of the Company or any of its Subsidiaries Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder or Holder, the Trustee or any Agent has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Company Issuers to pay any of the principal of or interest on any Guaranteed Obligation Obligations when and as the same shall will become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and shallwill, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders, the Trustee or any Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the TrusteeIssuers or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(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 Subsidiary Guarantor further agrees that, as between itsuch Subsidiary Guarantor, on the one hand, and the TrusteeHolders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby by this Guarantee may be accelerated as provided in Article VI this Indenture for the purposes of any its Subsidiary Guarantee hereinin this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article VIObligations, such Guaranteed Obligations (whether or not due and payable) shall will forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Subsidiary Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all fees, reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or any Holder the Holders in enforcing any rights under this Section 10.01Guarantee.
(i) Each Guarantor shall promptly execute No Issuers or the Subsidiary Guarantors will be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof and deliver any such further instruments and do such further acts as may notation will not be reasonably necessary or proper a condition to carry out more effectively the purpose validity of this Indentureany Guarantee.
Appears in 1 contract
Guarantees. (a) Ashland and Subject to the provisions of this Article X, each other Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder Holder, to the extent lawful, and the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration 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, or and interest on the Notes and all other monetary obligations Obligations of the Company Issuer under this Indenture and the Notes and (ii) including interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuer or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture post-petition interest is allowed in such proceeding and the Notes, on the terms set forth in this Indenture by executing this Indenture obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guaranteed Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor shall it will remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any Default default under the Notes or the Guaranteed Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Guarantor Obligations.
(d) Except as expressly set forth in Section 10.0210.2 and Article VIII, the obligations of each Guarantor hereunder shall will not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall will not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (ii) any extension or renewal of any thereof; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (iv) the release of any security held by any Holder for the Guarantor Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuer; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (viii) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Subject to Section 10.02 and 10.03 hereof, each Each Guarantor agrees that its Guarantee shall herein will remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. 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 ofpayment, or any part thereof, of principal of of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall will become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shallwill, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Guarantor Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the TrusteeIssuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(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 itsuch Guarantor, on the one hand, and the TrusteeHolders, on the other hand, (i) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article VI this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article VIGuarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall will forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(h) Each Guarantor also agrees to pay any and all fees, reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or any Holder the Holders in enforcing any rights under this Section 10.01Section.
(i) Each Guarantor shall promptly execute Neither the Issuer nor the Guarantors will be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and deliver any such further instruments and do such further acts as may notation will not be reasonably necessary or proper a condition to carry out more effectively the purpose validity of this Indentureany Guarantee.
Appears in 1 contract
Sources: Indenture (Leslie's, Inc.)
Guarantees. (a) Ashland and Subject to the provisions of this Article X, each other Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder Holder, to the extent lawful, and the Trustee and their successors and assigns (i) Trustee, the full and punctual payment when due, whether at maturity, by acceleration acceleration, by redemption or otherwise, of all obligations the principal of the Company under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal ofand, premium, if any, or and interest on the Notes and all other monetary obligations Obligations of the Company Issuer under this Indenture and the Notes and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuer or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture post-petition interest is allowed in such proceeding and the Notes, on the terms set forth in this Indenture by executing this Indenture obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guaranteed Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor it shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any Default default under the Notes or the Guaranteed Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Guarantor Obligations.
(d) Except as expressly set forth in Section 10.0210.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder 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) Subject to Section 10.02 and 10.03 hereof, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. 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 ofpayment, or any part thereof, of principal of and, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Guarantor Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the TrusteeIssuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(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 itsuch Guarantor, on the one hand, and the TrusteeHolders, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article VI this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article VIGuarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(h) Each Guarantor also agrees to pay any and all fees, reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or any Holder the Holders in enforcing any rights under this Section 10.01Section.
(i) Each Guarantor Neither the Issuer nor the Guarantors shall promptly execute be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and deliver any such further instruments and do such further acts as may notation shall not be reasonably necessary or proper a condition to carry out more effectively the purpose validity of this Indentureany Guarantee.
Appears in 1 contract
Guarantees. (a) Ashland and each other Each Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably and unconditionally guaranteesguarantees on an unsecured senior basis, as a primary obligor and not merely as a surety, to each Holder and to the Trustee and their its successors and assigns (i) the full performance and punctual payment when due, whether at maturityStated Maturity, by acceleration acceleration, by redemption or otherwise, of all obligations of the Company Issuer under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, or interest on or additional interest in respect of the Notes and all other monetary obligations of the Company Issuer under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuer whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default default under the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (i) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (ii) any extension or renewal of this Indenture, the Notes or any other agreement; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (iv) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any Guarantor; (v) the failure of any Holder or Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (vi) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
(c) Each Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Guarantors, such that such Guarantor’s obligations would be less than the full amount claimed. Each Guarantor hereby waives any right to which it may be entitled to have the assets of the Issuer first be used and depleted as payment of the Issuer’s or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder. Each Guarantor hereby waives any right to which it may be entitled to require that the Issuer be sued prior to an action being initiated against such Guarantor.
(d) Each Guarantor further agrees that its 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.
(de) Except as expressly set forth in Section 10.02Sections 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 obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(ef) Subject to Section 10.02 Except as expressly set forth in Sections 8.01, 9.01 and 10.03 hereof10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Each Except as expressly set forth in Sections 8.01, 9.01 and 10.02, each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment ofpayment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company Issuer to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company Issuer to the TrusteeHolders and the Trustee in respect of the Guaranteed Obligations.
(gh) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Trustee Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01Section.
(hi) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01Section.
(ij) Each Upon request of the Trustee, each Guarantor shall promptly execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
(k) Any Guarantee given by any Parent of the Issuer may be released at any time upon written notice to the Trustee from such Parent of the Issuer.
Appears in 1 contract
Sources: Indenture (Intelsat S.A.)
Guarantees. (a) Ashland and For value received, each other Subsidiary Guarantor that guarantees the Notes pursuant to this Indenture, jointly and severally, irrevocably and unconditionally hereby fully guarantees, as a primary principal obligor and not merely as surety, on a suretysecured, senior subordinated, joint and several basis, to each Holder and to the Trustee and their its successors and assigns (i) on behalf of each Holder, the full and punctual payment when due, whether at maturity, by 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, or and interest on the Notes on, and all other monetary obligations of the Company Issuer under this the Indenture and this Note (including obligations to the Notes Trustee and (iithe obligations to pay Additional Amounts, if any) with respect to each Note authenticated and delivered by the full Trustee or its agent pursuant to and punctual performance within applicable grace periods of all other obligations in accordance with the Indenture, in accordance with the terms of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, Subsidiary Guarantor and that such Subsidiary Guarantor shall remain bound under this by Article X Ten of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each . All payments under these Guarantees shall be made in euro. These and other additional obligations of each Subsidiary Guarantor waives presentation to, demand of payment from and protest to the Company of any Holder and to the Trustee pursuant to these Guarantees and the Indenture (including, without limitation, the provisions relating to submission to jurisdiction and appointment of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default under Authorized Agent set forth in the Notes or the Guaranteed Obligations.
(cIndenture) 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.
(d) Except as are expressly set forth in Section 10.02the Indenture to which reference is hereby made for the precise terms of such obligations. These Guarantees shall be governed by, and construed in accordance with, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason laws of the invalidity, illegality or unenforceability State of New York. This Guarantee is dated the date of the Guaranteed Obligations or otherwiseNote upon which it is endorsed.
(e) Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. 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 of, or any part thereof, principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or 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 Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the 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 it, on the one hand, and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(i) 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.
Appears in 1 contract
Guarantees. (a) Ashland and each other Each Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a suretysurety on a senior basis, to each Holder and to the Trustee and their its successors and assigns (i) the full and punctual payment when due, whether at maturityStated Maturity, by acceleration acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture 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, or interest on the Notes and all other monetary obligations of the Company Issuer under this Indenture Indenture, the Notes, the Security Documents and the Notes Intercreditor Agreement and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuer whether for fees, expenses, indemnification or otherwise under this Indenture and Indenture, the Notes, on the terms set forth in this Indenture by executing this Indenture Security Documents and the Intercreditor Agreement (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that 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 will be secured by security interests in the Collateral owned by such Guarantor to the extent provided for in the Security Documents and as required pursuant to Sections 4.10 and 4.11.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default 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 of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder Holder, the Trustee or the Notes Collateral Trustee to any security held for payment of the Guaranteed Obligations.
(de) Except as expressly set forth in Section 10.02Sections 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 compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder, the Trustee or the Notes Collateral Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes, any Security Document or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(ef) Subject to Section 10.02 Except as expressly set forth in Sections 8.01 and 10.03 hereof10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Each Except as expressly set forth in Sections 8.01 and 10.02, each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment ofpayment, or any part thereof, of principal of or interest on any 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 Company or any of its Subsidiaries 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 Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the TrusteeTrustee in accordance with this Indenture, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or the Notes Collateral Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company Issuer then due to the TrusteeHolders, the Trustee and the Notes Collateral Trustee in respect of the Guaranteed Obligations.
(gh) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Trustee Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between it, on the one hand, and the Holders, the Trustee and the Notes Collateral Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(hi) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee Trustee, or the Notes Collateral Trustee, or any Holder in enforcing any rights under this Section 10.01.
(ij) Each Upon request of the Trustee, each Guarantor shall promptly execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
(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 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 distributions made on or before such date by such Contributing Guarantor in respect of its Guarantee (including in respect of this Section 10.01), minus (2) the aggregate amount of all payments received on or before such date by such Guarantor from the other Contributing Guarantors as contributions under this Section 10.01. The amounts payable as contributions hereunder shall be determined as of the date on which the related payment or distribution is made by the applicable Funding Guarantor. Each Contributing Guarantor is a third party beneficiary to the contribution agreement set forth in this Section 10.01(k). For the avoidance of doubt, nothing in this Section 10.01(k) shall limit or impair, by implication or otherwise, each Guarantor’s obligations under its Guarantee.
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Guarantees. (a) Ashland Subject to the provisions of this Article 10, each Guarantor hereby jointly and severally with each other Guarantor that guarantees the Notes pursuant to this Indenture, jointly and severally, irrevocably and unconditionally guarantees, guarantees as a primary obligor and not merely as a surety, surety on a senior basis to each Holder and Holder, the Trustee Trustee, the Collateral Agent and their respective successors and assigns (i) the full and punctual payment when due, whether at maturityStated Maturity, by acceleration acceleration, by redemption or otherwise, of all obligations Obligations of the Company Issuer under this Indenture (including obligations to the Trustee) and the NotesSecurities, whether for payment of principal of, premium, if any, or premium or interest on on, the Notes Securities and all other monetary obligations of the Company Issuer under this Indenture and the Notes Securities, and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuer, whether for fees, expenses, indemnification or otherwise under this Indenture and the NotesSecurities, on the terms set forth in this Indenture by executing becoming a party to this Indenture (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). .
(b) Each Guarantor further agrees that (to the extent permitted by law) the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article X 10 notwithstanding any extension or renewal of any Guaranteed Obligation. The Guaranteed Obligations of a Guarantor will be secured by security interests (subject to Permitted Liens) in the Notes Collateral owned by such Guarantor to the extent provided for in the Security Documents and as required pursuant to Sections 4.11 and 4.13.
(bc) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default 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 of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder Holder, the Trustee or the Trustee Collateral Agent to any security held for payment of the Guaranteed Obligations.
(df) Except as expressly set forth in Section Sections 8.01, 10.02, 10.03 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 (i) the failure of any Holder, the Trustee or the Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Securities, any Security Document or any other agreement, (ii) any waiver or modification of any thereof, (iii) any default, failure or delay, willful or otherwise, in the performance of the obligations or (iv) any other act or thing or omission or delay to do any other act or thing that may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(eg) Subject to Section 10.02 Except as expressly set forth in Sections 8.01 and 10.03 hereof10.03, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the its Guaranteed Obligations. Each Except as expressly set forth in Sections 8.01 and 10.03, 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 ofpayment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Trustee Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuer to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the TrusteeTrustee in accordance with this Indenture, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or the Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company Issuer then due to the Trustee.
(g) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to Holders, 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 it, on the one hand, and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration Collateral Agent in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01Obligations.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(i) 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.
Appears in 1 contract
Guarantees. (a) Ashland The First Lien Notes and each other Guarantor that guarantees the Notes pursuant to this Indenture, jointly and severally, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, to each Holder and the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration or otherwise, of all obligations under the indenture related thereto will be unconditionally guaranteed by each existing and subsequently acquired or organized wholly owned domestic subsidiary of the Company under this Indenture Issuer (including obligations the “Note Guarantors”), subject to exceptions consistent with the Trustee) Documentation Precedent and the Notes, whether for payment of principal of, premiumothers, if any, or interest to be set forth in the definitive documentation, on a senior first-priority secured basis (the Notes “Note Guarantees”). The Note Guarantees will rank pari passu in all respects, including in right of payment, with all obligations under the Credit Agreement and all other monetary obligations senior indebtedness of the Company under this Indenture 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 Notes Note Guarantees will be secured by a first-priority security interest in substantially all the owned material assets of the Issuer and each Note Guarantor, in each case whether owned on the Closing Date or thereafter acquired (iicollectively, the “Collateral”), including but not limited to: (a) the full and punctual performance within applicable grace periods a perfected first-priority pledge of all other obligations the equity interests directly held by the Issuer or any Note Guarantor (which pledge, in the case of any foreign subsidiary, shall be limited to 100% of the Company whether for fees, expenses, indemnification or otherwise under this Indenture non-voting equity interests (if any) and 65% of the Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each voting equity interests of such Guarantor, and that such Guarantor shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Obligation.
foreign subsidiary) (b) Each Guarantor waives presentation toa perfected first priority lien on cash, demand of payment from deposit accounts and protest to the Company of any of the Guaranteed Obligations securities accounts, and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default under the Notes or the Guaranteed Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee of paymentperfected first-priority security interests in, performance and compliance when due (mortgages on, substantially all owned tangible 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 intangible assets of the Guaranteed Obligations.
Issuer and each Note Guarantor (dincluding, but not limited to, accounts receivable, inventory, equipment, general intangibles, investment property, intellectual property and real property (including an assignment of rents)) Except as expressly set forth in Section 10.02, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination except for any reason, including any claim of waiver, release, surrender, alteration or compromise, (v) real property with a fair market value less than $15.0 million 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.
(e) Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. 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 of, or any part thereof, principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or 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 Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligationsleaseholds, (iiw) accrued vehicles, (x) those assets as to which the Issuer and unpaid Collateral Agent shall reasonably determine that the costs or other consequences of obtaining such a security interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Trustee.
(g) Each Guarantor agrees that it shall not be entitled to any right of subrogation are excessive in relation to the Trustee value of the security to be afforded thereby, (y) assets to which the granting or perfecting such security interest would violate any applicable law (including gaming laws and regulations) or contract (and with regard to which contract the counterparty thereto requires such prohibition as a condition to entering into such contract, such contract has been entered into in respect the ordinary course of any Guaranteed Obligations guaranteed hereby until payment business, such restriction is consistent with industry custom and consent has been requested and not received), and (z) other exceptions consistent with the Documentation Precedent; and provided that the pledge of equity interests and other securities will be subject to customary Rule 3-16 cut-back provisions. For avoidance of doubt, lockbox arrangements and control agreements relating to the Issuer’s and its subsidiaries’ bank accounts and securities accounts will be required to be delivered at closing. The operating lease with [Caesars Entertainment Operating Company, Inc.] shall be subject to a customary subordination and non-disturbance agreement as provided in full the Lease Term Sheet attached to the Restructuring Support Agreement. All the above-described pledges, security interests and mortgages shall be created on terms, and pursuant to documentation, consistent with the Documentation Precedent. The relative rights and priorities in the Collateral for each of all Guaranteed Obligations. Each Guarantor further agrees thatthe Credit Agreement and the First Lien Notes will be set forth in the First Lien Intercreditor Agreement, as between itthe administrative agent for the Credit Agreement, on the one hand, and the Trusteetrustee for the First Lien Notes, on the other hand, (i) which intercreditor agreement shall provide that the maturity of indebtedness outstanding under the Guaranteed Obligations guaranteed hereby may be accelerated Credit Agreement and the First Lien Notes vote together as provided one class and are pari passu in Article VI for the purposes of any Guarantee hereinall respects, notwithstanding any stay, injunction or other prohibition preventing such acceleration including in respect of directing the Guaranteed Obligations guaranteed herebycollateral agent thereunder. The relative rights and priorities in the Collateral for each of the Credit Agreement, the First Lien Notes and the Second Lien Notes will be set forth in the First Lien/Second Lien Intercreditor Agreement, as between the collateral agent for the Credit Agreement and the First Lien Notes, on the one hand, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor collateral agent for the purposes of this Section 10.01Second Lien Notes, on the other hand.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(i) 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.
Appears in 1 contract
Sources: Restructuring Support and Forbearance Agreement (Caesars Entertainment Operating Company, Inc.)
Guarantees. (a) Ashland Subject to this Article X, Article XI and Section 12.19, each of the Company, eircom, Holdings and each other Additional Note Guarantor that guarantees the Notes pursuant to this Indenturehereby fully, jointly unconditionally and severally, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, to each Holder of the Notes and the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration 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, or interest interest, and Additional Amounts, if any, on the Notes and all other monetary payment obligations of the Company eircom Funding 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, on the terms set forth in this Indenture by executing this Indenture (all of the foregoing being hereinafter collectively called the “Guaranteed Senior Subordinated Obligations”). Each of the Company, eircom, Holdings and each Additional Note Guarantor further agrees (to the extent permitted by law) that the Guaranteed Senior Subordinated Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor shall it will remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Senior Subordinated Obligation. The guarantee of the Company given hereby is referred to herein as the “Senior Subordinated Valentia Guarantee,” the guarantee of eircom given hereby is referred to herein as the “Senior Subordinated eircom Guarantee” (which, together with the Senior Subordinated Valentia Guarantee and each Additional Note Guarantee, are referred to herein as the “Note Guarantees”). The guarantee of Holdings given hereby is referred to herein as the “Subordinated Holdings Guarantee.
(b) ” Each of the Company, eircom, Holdings and any Additional Note Guarantor waives (to the extent permitted by law) presentation to, demand of payment from and protest to the Company eircom Funding of any of the Guaranteed Senior Subordinated Obligations and also waives (to the extent permitted by law) notice of protest for nonpayment. Each of the Company, eircom, Holdings and any Additional Note Guarantor waives (to the extent permitted by law) notice of any Default default under the Notes or the Guaranteed Senior Subordinated Obligations.
. The obligations of each of the Company, eircom, Holdings and any Additional Note Guarantor hereunder shall not (to the extent permitted by law) be affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against eircom Funding or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Senior Subordinated Obligations or any of them; or (e) any change in the ownership of eircom Funding. Each of the Company, eircom, Holdings and any Additional Note Guarantor further agrees that its each Note Guarantee herein (or in the case of Holdings, the Subordinated Holdings Guarantee herein) constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives (to the extent permitted by law) any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Senior Subordinated Obligations.
(d) Except as expressly set forth in Section 10.02, the . The obligations of each of the Company, eircom, Holdings and any Additional Note Guarantor hereunder shall (to the extent permitted by law) shall, subject to this Article X, Article XI and Section 12.19, not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Senior Subordinated Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Senior Subordinated Obligations or otherwise.
. Without limiting the generality of the foregoing, the obligations of each of the Company, eircom, Holdings and any Additional Note Guarantor herein (eto 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 Senior Subordinated Obligations, or by any other act or thing or omission or delay to do any other act or thing which would otherwise operate as a discharge of any of the Company, eircom, Holdings or any Additional Note Guarantor as a matter of law or equity. Subject to Section 10.02 and 10.03 hereof10.5, each Guarantor agrees that its Guarantee shall remain in full force of the Company, eircom, Holdings and effect until payment in full of all the Guaranteed Obligations. 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 ofpayment, or any part thereof, of principal of or interest interest, or Additional Amounts, if any, on any Guaranteed Obligation of the Senior Subordinated Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 or the Trustee has at law or in equity against any of the Company, eircom, Holdings and any Additional Note Guarantor by virtue hereof, upon the failure of the Company eircom Funding to pay any of the principal of or interest on any Guaranteed Obligation Senior Subordinated Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with each of the Company, eircom, Holdings and any other Guaranteed Obligation, each Additional Note Guarantor hereby promises to and shallwill, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee for and on behalf of itself and the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued Senior Subordinated Obligations then due and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Trustee.
(g) Each Guarantor agrees that it owing. Payments made under this guarantee shall not be entitled to any right of subrogation in relation made to the Trustee in respect on behalf of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligationsthe Holders. Each Guarantor The Company further agrees that, as between it, on the one hand, and the TrusteeHolders, on the other hand, but subject always to Section 11.2 hereof, (ix) the maturity of the Guaranteed Senior Subordinated Obligations guaranteed hereby may be accelerated as provided in Article VI this Indenture for the purposes of any the Note Guarantees herein (or, in the case of Holdings, the Subordinated Holdings Guarantee herein), notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Senior Subordinated Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article VISenior Subordinated Obligations, such Guaranteed Senior Subordinated Obligations (whether or not due and payable) shall forthwith become due and payable by such each of the Company, eircom, Holdings and any Additional Note Guarantor for the purposes of this Section 10.01.
Senior Subordinated Guarantee (h) or, in the case of Holdings, this Subordinated Holdings Guarantee). Each of the Company, eircom, Holdings and any Additional Note Guarantor also agrees to pay any and all fees, reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or any Holder the Holders in enforcing any rights under this Section 10.01Section.
(i) 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.
Appears in 1 contract
Sources: Senior Subordinated Indenture (Valentia Telecommunications)
Guarantees. (a) Ashland Holdings, in consideration of the Purchaser’s entering into this Agreement and purchasing Notes, unconditionally and irrevocably guarantees to the Purchaser and each other Guarantor that guarantees and every holder from time to time of any of the Notes pursuant to this Indenture, jointly and severally, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, to each Holder and the Trustee and their successors and assigns (i) the full due and punctual payment when due, whether at maturity, by acceleration or otherwise, of all obligations sums which may become due or be stated in the Notes or in this Agreement to become due under the terms and provisions of the Company under Notes and this Indenture (including obligations to Agreement in respect of the Trustee) principal of and the Notes, whether for payment of principal of, premiumprepayment charge, if any, or 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 monetary 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 Company 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 (ii) the full and punctual performance within applicable grace periods each holder as aforesaid payment of all other obligations of amounts payable by the Company whether for fees, expenses, indemnification or otherwise Borrower under this Indenture and Agreement or the Notes, on the terms set forth in this Indenture by executing this Indenture including costs, expenses (all the foregoing including fees and expenses of counsel) and taxes (such principal, prepayment charge, if any, interest and other obligations guaranteed as aforesaid being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, ” and that such Guarantor shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default under the Notes or the Guaranteed Obligations.
(c) 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.
(d) Except as expressly set forth in Section 10.02, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise.
(e) Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. 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 of, or any part thereof, principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or 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 Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the 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 it, on the one hand, and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(h) Each Guarantor also lawful agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expensesexpenses of counsel) incurred by the Trustee or each holder of any Holder Note in enforcing any rights under in connection with this Section 10.01Section.
(i) 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.
Appears in 1 contract
Guarantees. (a) Ashland and Subject to the provisions of this Article X, each other Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder of the Notes, to the extent lawful, and the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration 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, or and interest on the Notes and all other monetary obligations Obligations of the Company Issuer under this Indenture and the Notes and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuer or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture post-petition interest is allowed in such proceeding and the Notes, on the terms set forth in this Indenture by executing this Indenture obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guaranteed Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor it shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any Default default under the Notes or the Guaranteed Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Guarantor Obligations.
(d) Except as expressly set forth in Section 10.0210.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder 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) Subject to Section 10.02 and 10.03 hereof, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. 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 ofpayment, or any part thereof, of principal of of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Guarantor Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the TrusteeIssuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(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 itsuch Guarantor, on the one hand, and the TrusteeHolders, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article VI this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article VIGuarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(h) Each Guarantor also agrees to pay any and all fees, reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or any Holder the Holders in enforcing any rights under this Section 10.01Section.
(i) None of the Issuer or the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) 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 promptly execute 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 deliver further provided that such further instruments and do such further acts 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 reasonably necessary 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 proper with deduction of Swiss Withholding Tax at a reduced rate, by discharging the liability to carry out more effectively such tax by notification pursuant to applicable law (including double tax treaties) rather than payment of the purpose tax;
(ii) if the notification procedure pursuant to sub-paragraph (i) above does not apply, deduct Swiss Withholding Tax at the rate of this Indenture.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. On the Issue Date, Holdings and Intelsat Bermuda will be the only Guarantors.
(a) Ashland and each other Each Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, to each Holder and to the Trustee and their its successors and assigns (i) the full and punctual payment when due, whether at maturityStated Maturity, by acceleration acceleration, by redemption or otherwise, of all obligations of the Company Issuer under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, or interest on or additional interest in respect of the Notes and all other monetary obligations of the Company Issuer under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuer whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default default under the Notes or the Guaranteed Obligations.
(c) 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.
(d) Except as expressly set forth in Section 10.02, the . The obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim affected by (i) the failure 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.
(e) Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. 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 of, or any part thereof, principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon to assert any claim or demand or to enforce any right or remedy against the bankruptcy or reorganization of the Company Issuer or any of its Subsidiaries other Person under this Indenture, the Notes or any other agreement 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 Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, ; (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the 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 it, on the one hand, and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI for the purposes of any Guarantee herein, notwithstanding any stay, injunction extension or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(i) 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 renewal of this Indenture., the Notes or any other agreement;
Appears in 1 contract
Sources: Indenture (Intelsat LTD)
Guarantees. (a) Ashland and each other Guarantor that guarantees Each of the Notes pursuant to this IndentureCompany’s Subsidiary Guarantors, jointly and severally, irrevocably and unconditionally guaranteesand, as a primary obligor and not merely as a surety, absolutely, unconditionally and irrevocably guarantees, subject to each Holder and the Trustee and their successors and assigns (i) First Lien/Second Lien/Third Lien Intercreditor Agreements, the full and punctual prompt payment when due, whether at maturityStated Maturity, by upon acceleration or otherwise, of and at all obligations times thereafter, all Obligations of the Company under this Third Lien Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, or interest on the New Third Lien Secured Notes and all other monetary 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 Obligations from, or in prosecuting any action against the Company under this Indenture or any Subsidiary Guarantor to the Holders, the Third Lien Trustee 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, on the terms set forth in this Indenture by executing this Indenture Collateral Agent (all the foregoing such Obligations guaranteed by such Subsidiary Guarantors being hereinafter collectively herein called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, renewed in whole or in part, part without notice to or further assent from each such Guarantorit, and that such Guarantor shall remain it remains bound under this Article X upon its guarantee notwithstanding any such extension or renewal of any Guaranteed Obligationrenewal.
(b) Each Subsidiary Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent lawful) notice of any Default default under the New Third Lien Secured Notes or the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(d) Except as expressly set forth in Section 10.024.09. 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 reasonreason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall will not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) 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 Company or any other Person under this Third Lien Indenture, the New Third Lien Secured Notes or any other agreement or otherwise; (ii) any extension or renewal of any thereof; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Third Lien Indenture, the New Third Lien Secured Notes, the Third Lien Security Agreements or any other Third Lien Documents; (iv) the release of any security held by any Holder, any Third Lien Trustee or the Collateral Agent for the Guaranteed Obligations or any of them; (v) the failure of any Holder, the Third Lien Trustee or the Collateral Agent to exercise any right or remedy against any other Subsidiary Guarantor; (vi) any change in the ownership of the Company; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (viii) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Subsidiary Guarantor or would otherwise operate as a discharge of such Subsidiary Guarantor as a matter of law or equity.
(e) Subject to Section 10.02 and 10.03 hereof, each Each Subsidiary Guarantor agrees that its Subsidiary Guarantee shall herein will remain in full force and effect until payment in full of all the Guaranteed ObligationsObligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee in compliance with Section 4.09, Section 10.02 and Article VIII. 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 ofpayment, or any part thereof, of principal of of, premium, if any, or interest on any of the Guaranteed Obligation Obligations is rescinded or must otherwise be restored by any Holder Holder, the Third Lien Trustee or the Trustee Collateral Agent upon the bankruptcy or reorganization of the 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 Holder, the Third Lien Trustee or the Trustee Collateral Agent has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay any of the principal of or interest on any Guaranteed Obligation Obligations when and as the same shall will become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and shallwill, upon receipt of written demand by the Third Lien Trustee, forthwith pay, or cause to be paid, in cash, to the Third Lien Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company to the Trusteeor any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(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 Subsidiary Guarantor further agrees that, as between itsuch Subsidiary Guarantor, on the one hand, and the TrusteeHolders, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby by this Guarantee may be accelerated as provided in Article VI this Third Lien Indenture for the purposes of any its Subsidiary Guarantee hereinin this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, by this Guarantee and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article VIObligations, such Guaranteed Obligations (whether or not due and payable) shall will forthwith become due and payable by such the Subsidiary Guarantor for the purposes of this Section 10.01Subsidiary Guarantee.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(i) 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.
Appears in 1 contract
Sources: Third Lien Indenture (Bed Bath & Beyond Canada L.P.)
Guarantees. (a) Ashland On and after the Issue Date, each other Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a suretysurety on a senior basis, to each Holder and to the Trustee and their its successors and assigns (i) the full and punctual payment when due, whether at maturityStated Maturity, by acceleration acceleration, by redemption or otherwise, of all obligations of the Company Issuer under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, or interest on in respect of the Notes and all other monetary obligations of the Company Issuer under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuer whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that 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 will be secured by security interests in the Collateral owned by such Guarantor to the extent provided for in the Security Documents and as required pursuant to Sections 4.12 and 4.14.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default default under the Notes or the Guaranteed Obligations.
(c) 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.
(d) Except as expressly set forth in Section 10.02, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise.
(e) Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. 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 of, or any part thereof, principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or 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 Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the 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 it, on the one hand, and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(i) 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.Guaranteed
Appears in 1 contract
Guarantees. (a) Ashland Subject to the provisions of this Article 10, each Guarantor hereby jointly and severally with each other Guarantor that guarantees the Notes pursuant to this Indenture, jointly and severally, irrevocably and unconditionally guarantees, guarantees (to the extent permitted by law) as a primary obligor and not merely as a surety, surety on a senior basis to each Holder and Holder, the Trustee Trustee, the Collateral Agent and their respective successors and assigns (i) the full and punctual payment when due, whether at maturityStated Maturity, by acceleration acceleration, by redemption or otherwise, of all obligations Obligations of the Company Issuer under this Indenture (including obligations to the Trustee) and the NotesSecurities, whether for payment of principal of, premium, if any, or premium or interest on on, the Notes Securities (and any applicable Exit Fee) and all other monetary obligations of the Company Issuer under this Indenture and the Notes Securities, and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuer, whether for fees, expenses, indemnification or otherwise under this Indenture and the NotesSecurities, on the terms set forth in this Indenture by executing becoming a party to this Indenture (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). .
(b) Each Guarantor further agrees that (to the extent permitted by law) the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article X 10 notwithstanding any extension or renewal of any Guaranteed Obligation. The Guaranteed Obligations of a Guarantor will be secured by security interests (subject to Permitted Liens) in the Notes Collateral owned by such Guarantor to the extent provided for in the Security Documents and as required pursuant to Sections 4.11 and 4.13.
(bc) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default 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 of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder Holder, the Trustee or the Trustee Collateral Agent to any security held for payment of the Guaranteed Obligations.
(df) Except as expressly set forth in Section Sections 8.01, 10.02, 10.03 and 10.06, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than the payment in full of the Guaranteed Obligations), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (i) the failure of any Holder, the Trustee or the Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Securities, any Security Document or any other agreement, (ii) any waiver or modification of any thereof, (iii) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations or (iv) any other act or thing or omission or delay to do any other act or thing that may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(eg) Subject to Section 10.02 Except as expressly set forth in Sections 8.01 and 10.03 hereof10.03, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the its Guaranteed Obligations. Each Except as expressly set forth in Sections 8.01 and 10.03, 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 ofpayment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Trustee Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuer to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the TrusteeTrustee in accordance with this Indenture, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or the Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed ObligationsObligations then due, (ii) accrued and unpaid interest on such Guaranteed Obligations then due (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company Issuer then due to the TrusteeHolders, the Trustee and the Collateral Agent in respect of the Guaranteed Obligations.
(gi) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Trustee Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between it, on the one hand, and the TrusteeHolders, the Trustee and the Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(hj) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable and documented attorneys’ fees and expenses) incurred by the Trustee Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 10.01.
(ik) 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.
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) Ashland and each other Each Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, to each Holder and to the Trustee and their its successors and assigns (i) the full and punctual payment when due, whether at maturityStated Maturity, by acceleration acceleration, by redemption or otherwise, of all obligations of the Company Issuer under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, or interest on or additional interest in respect of the Notes and all other monetary obligations of the Company Issuer under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuer whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”"GUARANTEED OBLIGATIONS"). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article X 10 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default default under the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (i) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (ii) any extension or renewal of this Indenture, the Notes or any other agreement; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (iv) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any Guarantor; (v) the failure of any Holder or Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (vi) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
(c) Each Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Guarantors, such that such Guarantor's obligations would be less than the full amount claimed. Each Guarantor hereby waives any right to which it may be entitled to have the assets of the Issuer first be used and depleted as payment of the Issuer's or such Guarantor's obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder. Each Guarantor hereby waives any right to which it may be entitled to require that the Issuer be sued prior to an action being initiated against such Guarantor.
(d) Each Guarantor further agrees that its 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.
(de) Except as expressly set forth in Section 10.02Sections 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 compromisecom- promise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder 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 obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(ef) Subject to Section 10.02 Except as expressly set forth in Sections 8.01 and 10.03 hereof10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Each Except as expressly set forth in Sections 8.01 and 10.02, each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment ofpayment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company Issuer to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company Issuer to the TrusteeHolders and the Trustee in respect of the Guaranteed Obligations.
(gh) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Trustee Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(hi) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ ' fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(ij) Each Upon request of the Trustee, each Guarantor shall promptly execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
Appears in 1 contract
Sources: Indenture (Intelsat LTD)
Guarantees. (a) Ashland and each other Each Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, severally irrevocably and unconditionally guarantees, guarantees as a primary obligor and not merely as a surety, surety on a senior basis to each Holder and to the Indenture Trustee and their its successors and assigns (i) the full and punctual payment when due, whether at maturitythe Final Maturity Date, by acceleration acceleration, by redemption or otherwise, of all obligations of the Company Issuer under this Indenture (including obligations to the Trustee) Indenture Trustee and the Notes, whether for payment of principal of, or premium, if any, or interest on on, the Notes and all other monetary obligations of the Company Issuer under this Indenture and the Notes Notes, and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuer, whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that 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 will be secured by security interests (subject to Permitted Liens) in the Collateral owned by such Guarantor to the extent provided for in the Security Documents and as required pursuant to Sections 4.08 and 4.09.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default 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 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 Indenture Trustee to any security held for payment of the Guaranteed Obligations.
(de) Except as expressly set forth in Section 10.02Sections 7.01 and 9.02, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Indenture Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes, any Security Document or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(ef) Subject to Section 10.02 Except as expressly set forth in Sections 7.01 and 10.03 hereof9.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Each Except as expressly set forth in Sections 7.01 and 9.02, 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 ofpayment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Indenture Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company Issuer to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the TrusteeIndenture Trustee in accordance with this Indenture, forthwith pay, or cause to be paid, in cash, to the Holders or the Indenture Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company Issuer then due to the TrusteeHolders or the Indenture Trustee in respect of the Guaranteed Obligations.
(gh) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Trustee Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between it, on the one hand, and the Holders and the Indenture Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI 5 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI5, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.019.01.
(hi) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Indenture Trustee or any Holder in enforcing any rights under this Section 10.019.01.
(ij) Each Upon request of the Indenture Trustee, each Guarantor shall promptly execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
Appears in 1 contract
Sources: Indenture (Imperial Holdings, Inc.)
Guarantees. (a) Ashland and each other Each Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably and unconditionally guaranteesguarantees on an unsecured basis, as a primary obligor and not merely as a surety, to each Holder and the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by 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, or interest on on, if any, the Notes and all other monetary obligations of the Company under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article X 10 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default default under the Notes or the Guaranteed Obligations.
(c) 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.
(d) Except as expressly set forth in Section 10.02Sections 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.
(e) Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. 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 ofpayment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or 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 Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the 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 it, on the one hand, and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(i) . 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.
Appears in 1 contract
Guarantees. (a) Ashland and each other Each Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably and unconditionally guaranteesguarantees on an unsecured senior basis, as a primary obligor and not merely as a surety, to each Holder and to the Trustee and their its successors and assigns (i) the full performance and punctual payment when due, whether at maturityStated Maturity, by acceleration acceleration, by redemption or otherwise, of all obligations of the Company Issuer under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, or interest on or additional interest in respect of the Notes and all other monetary obligations of the Company Issuer under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuer whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default default under the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (i) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (ii) any extension or renewal of this Indenture, the Notes or any other agreement; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (iv) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any Guarantor; (v) the failure of any Holder or Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (vi) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
(c) Each Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Guarantors, such that such Guarantor’s obligations would be less than the full amount claimed. Each Guarantor hereby waives any right to which it may be entitled to have the assets of the Issuer first be used and depleted as payment of the Issuer’s or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder. Each Guarantor hereby waives any right to which it may be entitled to require that the Issuer be sued prior to an action being initiated against such Guarantor.
(d) Each Guarantor further agrees that its 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.
(de) Except as expressly set forth in Section 10.02Sections 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 obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(ef) Subject to Section 10.02 Except as expressly set forth in Sections 8.01, 9.01 and 10.03 hereof10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Each Except as expressly set forth in Sections 8.01, 9.01 and 10.02, each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment ofpayment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company Issuer to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company Issuer to the TrusteeHolders and the Trustee in respect of the Guaranteed Obligations.
(gh) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Trustee Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(hi) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(ij) Each Upon request of the Trustee, each Guarantor shall promptly execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
(k) Any Guarantee given by any Parent of the Issuer may be released at any time upon written notice to the Trustee from such Parent of the Issuer.
Appears in 1 contract
Sources: Indenture (Intelsat LTD)
Guarantees. Subject to the provisions of subsections (ab) Ashland through (g) of this Section 6, each Guarantor who has executed this Note hereby fully, unconditionally and each other Guarantor that guarantees the Notes pursuant to this Indenture, jointly and severally, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, jointly and severally with each other Guarantor, to each Holder and the Trustee and their successors and assigns (i) Holder, the full and punctual payment when due, whether at maturity, by acceleration 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, or interest and interest, on the Notes Note and all other monetary obligations and liabilities of the Company under this Indenture and Note (including without limitation interest accruing after the Notes and (ii) filing of any petition in bankruptcy, or the full and punctual performance within applicable grace periods commencement of all other obligations of any insolvency, reorganization or like proceeding, relating to the Company or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture post-petition interest is allowed in such proceeding) (a “Guarantee” and the Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”); provided, however, the Guarantee shall be subject to the Subordination Agreement. Each Guarantor further agrees (to the extent permitted by law) that the Guaranteed Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor shall it will remain bound under this Article X Section 6 notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(bi) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Guarantor Obligations and also waives notice of protest for nonpaymentnon-payment. Each Guarantor waives notice of any Default default under the Notes Note or the Guaranteed Guarantor Obligations.
(cii) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee of payment, performance and compliance payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any the Holder or the Trustee to any security held for payment of the Guaranteed Guarantor Obligations.
(diii) Except as expressly set forth in Section 10.026(e), the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of the Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under the Transaction Documents; (b) any extension or renewal granted; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of the Transaction Documents; (d) the release of any security held by the Holder for the Guarantor Obligations or any of them; (e) the failure of the Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Company; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(eiv) Subject to Section 10.02 and 10.03 hereof, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 6(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 ofpayment, or any part thereof, of principal of or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries or otherwise.
(fv) In furtherance of the foregoing and not in limitation of any other right which any the Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shallwill, upon receipt of written demand by the TrusteeHolder, forthwith pay, or cause to be paid, in cash, to the Trustee Holder an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Guarantor Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Trustee).
(gvi) 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 itsuch Guarantor, on the one hand, and the TrusteeHolder, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article VI this Note for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article VIGuarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(hvii) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.016(c).
(i) 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.
Appears in 1 contract
Sources: Exchange and Settlement Agreement (FiscalNote Holdings, Inc.)
Guarantees. (a) Ashland Each of ITT and each other Guarantor that guarantees Dow Jone▇ (▇▇T and Dow Jone▇ ▇▇▇ng referred to in this Section 10.17 as the Notes pursuant to this Indenture"Seller Guarantors") irrevocably guarantees, jointly severally and severally, irrevocably and unconditionally guaranteesnot jointly, as a primary obligor principal and not merely as a surety, 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 this Agreement and the Trustee and their successors and assigns (i) Time Brokerage Agreement in accordance with the full and punctual payment when dueterms thereof; provided, whether at maturityhowever, by acceleration or otherwise, that neither Seller Guarantor shall be obligated pursuant to this Section 10.17 to pay any amount in excess of all obligations 50% of the Company under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, or interest on the Notes and all other monetary obligations of the Company under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that such Guarantor shall remain bound under this Article X notwithstanding any extension or renewal amount of any Guaranteed Obligationsuch obligation of Seller.
(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 presentation 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 permitted by applicable law, each Guarantor hereby waives presentment to, demand of payment from and protest to the Company of any of the Guaranteed Obligations Obligation, and also waives notice of acceptance of its guarantee and notice of protest for nonpayment. Each Guarantor waives notice of any Default under To the Notes or the Guaranteed Obligations.
(c) 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 fullest extent permitted by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(d) Except as expressly set forth in Section 10.02applicable law, the obligations of each Guarantor the Guarantors hereunder shall not be subject affected by (a) the failure of the applicable obligee to any reduction, limitation, impairment or termination for any reason, including assert any claim or demand or to enforce any right or remedy against the applicable Guarantor pursuant to the provisions of this Agreement or otherwise and (b) any recision, waiver, release, surrender, alteration amendment 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.
(e) Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. 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 modification of, or any part thereof, principal of or interest on release from any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company terms 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 Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the 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 it, on the one hand, and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes provisions of this 50 Section 10.0110.17, unless consented to in writing by Seller and Purchaser.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(i) 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.
Appears in 1 contract
Sources: Asset Purchase Agreement (Paxson Communications Corp)
Guarantees. (a) Ashland and Subject to the provisions of this Article X, each other Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder Holder, to the extent lawful, and the Trustee and their successors and assigns (i) Trustee, the full and punctual payment when due, whether at maturity, by acceleration 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, or and interest on the Notes and all other monetary obligations Obligations of the Company Issuer under this Indenture and the Notes and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuer or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture post-petition interest is allowed in such proceeding and the Notes, on the terms set forth in this Indenture by executing this Indenture obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guaranteed Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor it shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any Default default under the Notes or the Guaranteed Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Guarantor Obligations.
(d) Except as expressly set forth in Section 10.0210.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder 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) Subject to Section 10.02 and 10.03 hereof, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. 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 ofpayment, or any part thereof, of principal of of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Guarantor Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the TrusteeIssuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(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 itsuch Guarantor, on the one hand, and the TrusteeHolders, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article VI this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article VIGuarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(h) Each Guarantor also agrees to pay any and all fees, reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or any Holder the Holders in enforcing any rights under this Section 10.01Section.
(i) Each Guarantor Neither the Issuer nor the Guarantors shall promptly execute be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and deliver any such further instruments and do such further acts as may notation shall not be reasonably necessary or proper a condition to carry out more effectively the purpose validity of this Indentureany Guarantee.
Appears in 1 contract
Guarantees. (a) Ashland and each other Each Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, to each Holder and the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration or otherwise, of all obligations of the Company Issuers under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, or interest on on, if any, the Notes and all other monetary obligations of the Company Issuers under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuers whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuers of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default under the Notes or the Guaranteed Obligations.
(c) 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.
(d) Except as expressly set forth in Section 10.02, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise.
(e) Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. 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 of, or any part thereof, principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company 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 Company Issuers to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company Issuers to the 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 it, on the one hand, and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(i) 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.
Appears in 1 contract
Sources: Indenture (AerCap Holdings N.V.)
Guarantees. (a) Ashland and Subject to the provisions of this Article X, each other Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder of the Notes, to the extent lawful, and the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration 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, or and interest on the Notes and all other monetary obligations Obligations of the Company Issuer under this Indenture and the Notes and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuer, or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture post-petition interest is allowed in such proceeding and the Notes, on the terms set forth in this Indenture by executing this Indenture obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guaranteed Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor it shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any Default default under the Notes or the Guaranteed Guarantor Obligations.
(c) Without prejudice to the foregoing, any Guarantor incorporated under the laws of the Federative Republic of Brazil further waives and renounces, to the fullest extent permitted by applicable law, any and all rights and/or benefits it may have under Articles 333, sole paragraph, 366, 827, 829, 830, 834, 835, 837, 838 and 839 of Law No. 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 Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Guarantor Obligations.
(de) Except as expressly set forth in Section 10.0210.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder 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.
(ef) Subject to Section 10.02 and 10.03 hereof, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII, as applicable. 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 ofpayment, or any part thereof, of principal of of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Guarantor Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the TrusteeIssuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(gh) 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 itsuch Guarantor, on the one hand, and the TrusteeHolders, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article VI this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article VIGuarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(hi) Each Guarantor also agrees to pay any and all fees, reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or any Holder the Holders in enforcing any rights under this Section 10.0110.1.
(ij) Each Guarantor Neither the Issuer nor the Guarantors shall promptly execute be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and deliver any such further instruments and do such further acts as may notation shall not be reasonably necessary or proper a condition to carry out more effectively the purpose validity of this Indentureany Guarantee.
Appears in 1 contract
Sources: Indenture (Sylvamo Corp)
Guarantees. (a) Ashland and each other Each Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably and unconditionally guaranteesguarantees on a secured basis, as a primary obligor and not merely as a surety, to each Holder and the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration or otherwise, of all obligations of the Company Issuer under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, or interest on on, if any, the Notes and all other monetary obligations of the Company Issuer under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuer whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article X Ten notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default default under the Notes or the Guaranteed Obligations.
(c) 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.
(d) Except as expressly set forth in Section Sections 8.01(b), 10.02, 10.03 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.
(e) Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. 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 ofpayment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company Issuer to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee (or its designee) an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company Issuer to the 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 it, on the one hand, and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI Six for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VISix, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(i) . 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.
Appears in 1 contract
Guarantees. 20.1 Guarantee by the Initial Guarantors
20.1.1 The Initial Guarantors guarantee to the Bank, jointly and severally among themselves and with the Borrower, the fulfilment of each and all of the Borrower’s obligations hereunder, on the same terms and conditions as the Borrower, expressly waiving the benefits of division, priority and discussion, until all the Borrower’s obligations hereunder and thus guaranteed have been fully cancelled.
20.1.2 The Bank accepts the guarantee made in Clause 20.1.1 above.
20.1.3 The guarantee made in Clause 20.1.1 above shall be subject to the following:
(a) Ashland and each other Guarantor that guarantees The Initial Guarantors accept the Notes pursuant to this Indenture, jointly and severally, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, to each Holder form of debt settlement established in Clause 21 and the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration or otherwise, of all obligations of the Company under this Indenture (including obligations submission to the Trustee) and the Notesjurisdiction established in Clause 26, whether for payment of principal of, premium, if any, or interest on the Notes and all other monetary obligations of the Company under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that such Guarantor shall remain bound under this Article X notwithstanding any extension or renewal with express waiver of any Guaranteed Obligationother jurisdiction. Their address for notices hereunder is as per Clause 22.
(b) Each Guarantor waives presentation toThe Initial Guarantors accept, demand without reservation and waiving as appropriate the rights established in sections 1839 and 1212 of payment from the Civil Code, that any part payments made in fulfilment of their obligation as guarantors shall not entitle them to any subrogation against the Borrower in the payments of the Bank until such time as the Bank shall have received full repayment of the Facility and protest unless the Initial Guarantors establish sureties or take other measures guaranteeing to the Company of any satisfaction of the Guaranteed Obligations and also waives notice Bank the priority corresponding to the Bank under section 1213 of protest for nonpayment. Each Guarantor waives notice of the Civil Code to collect any Default under remaining credit it may hold against the Notes or the Guaranteed ObligationsBorrower.
(c) Each Guarantor further agrees The Initial Guarantors hereby agree to all effects and purposes to any periods of grace or facilities granted to the Borrower and any modification of the terms and conditions of this Facility that its Guarantee herein constitutes a guarantee may be agreed between the Bank and the Borrower in the future, provided they do not increase the amount of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder the Facility or the Trustee to any security held for payment of the Guaranteed Obligationsinterest rate applicable thereto.
(d) Except as expressly set forth The rules on payments and their application established in Section 10.02, Clause 13 shall be applicable to all payments made by the obligations Initial Guarantors in fulfilment 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 otherwisethis guarantee.
(e) Subject to Section 10.02 The assignment of the credit rights or subrogation in the contractual position of the Bank (and/or its legitimate assignees) contemplated in Clause 24 shall not detract from or otherwise howsoever adversely affect the validity and 10.03 hereofeffectiveness of this guarantee, each Guarantor agrees that its Guarantee which shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment of, or any part thereof, principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries or otherwiseeffect.
(f) In furtherance This guarantee shall be deemed to remain in force until the Bank has received full payment of all sums that it is entitled to receive from 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 hereofBorrower under this Facility, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at even after its final 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 an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Trustee.
(g) Each Guarantor agrees that The Bank may enforce the guarantee made in this Clause in such order as 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 it, on the one hand, and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration deem fit in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI, such Guaranteed Obligations (whether other guarantees furnished or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01promised hereunder.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(i) 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.
Appears in 1 contract
Sources: Credit Facility Agreement (Ebro Puleva Partners G.P.)
Guarantees. (a) Ashland and Subject to the provisions of this Article X, each other Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder Holder, to the extent lawful, and the Trustee and their successors and assigns (i) Trustee, the full and punctual payment when due, whether at maturity, by acceleration 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, or and interest on the Notes and all other monetary obligations Obligations of the Company Issuer under this Indenture and the Notes and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuer or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture post-petition interest is allowed in such proceeding and the Notes, on the terms set forth in this Indenture by executing this Indenture obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guaranteed Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor it shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any Default default under the Notes or the Guaranteed Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Guarantor Obligations.
(d) Except as expressly set forth in Section 10.0210.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder 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) Subject to Section 10.02 and 10.03 hereof, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 or Article VIII. 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 ofpayment, or any part thereof, of principal of of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Guarantor Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the TrusteeIssuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(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 itsuch Guarantor, on the one hand, and the TrusteeHolders, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article VI this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article VIGuarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(h) Each Guarantor also agrees to pay any and all fees, reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or any Holder the Holders in enforcing any rights under this Section 10.01Section.
(i) Each Guarantor Neither the Issuer nor the Guarantors shall promptly execute be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and deliver any such further instruments and do such further acts as may notation shall not be reasonably necessary or proper a condition to carry out more effectively the purpose validity of this Indentureany Guarantee.
Appears in 1 contract
Guarantees. (a) Ashland and Subject to the provisions of this Article X, each other Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder of the Notes, to the extent lawful, and the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration 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, or and interest on the Notes and all other monetary obligations Obligations of the Company Issuer under this Indenture and the Notes and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuer or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture post-petition interest is allowed in such proceeding and the Notes, on the terms set forth in this Indenture by executing this Indenture obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guaranteed Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor it shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any Default default under the Notes or the Guaranteed Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Guarantor Obligations.
(d) Except as expressly set forth in Section 10.0210.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (ii) any extension or renewal of any thereof; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (iv) the release of any security held by any Holder for the Guarantor Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any [[5541447]] change in the ownership of the Issuer; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (viii) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Subject to Section 10.02 and 10.03 hereof, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. 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 ofpayment, or any part thereof, of principal of of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Guarantor Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the TrusteeIssuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(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 itsuch Guarantor, on the one hand, and the TrusteeHolders, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article VI this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article VIGuarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(h) Each Guarantor also agrees to pay any and all fees, reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expensesfees) incurred by the Trustee or any Holder the Holders in enforcing any rights under this Section 10.01Section.
(i) None of the Issuer or the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) 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 (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 execute 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 deliver 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 instruments 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 do 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 further acts as may be reasonably 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 proper useful to carry out more effectively allow the purpose Swiss Guarantor to make the payments and perform the obligations hereunder with a minimum of this Indenturelimitations.
Appears in 1 contract
Guarantees. (a) Ashland and each other 13.01 Each Guarantor that guarantees the Notes pursuant to this Indentureirrevocably, jointly and severally, irrevocably absolutely and unconditionally guarantees, as a primary obligor and not merely as a surety, to each Holder and the Trustee and their successors and assigns : (i) to the Holders the full and punctual prompt payment when due, due (whether at the stated maturity, by acceleration or otherwise, ) of all obligations of (x) the Company under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, or and interest on the Notes issued by the Borrower hereunder and (y) all other monetary obligations (including obligations which, but for the automatic stay under Section 362(a) of the Company Bankruptcy Code, would become due), liabilities and indebtedness owing by the Borrower to the Holders under this Indenture and Agreement, the Notes and the Liquidation Certificates (ii) including, without limitation, indemnities, fees and interest thereon), whether now existing or hereafter incurred under, arising out of or in connection with this Agreement, the full Notes and punctual the Liquidation Certificates and the due performance within applicable grace periods of and compliance by the Borrower with all other obligations of the Company whether for feesterms, expensesconditions and agreements contained in this Agreement, indemnification or otherwise under this Indenture the Notes and the Notes, on the terms set forth in this Indenture by executing this Indenture Liquidation Certificates (all the foregoing such principal, premium, interest, liabilities, indebtedness, obligations and indemnities being hereinafter herein collectively called the “"Guaranteed Obligations”"). Each Guarantor further understands, agrees and confirms that the Guaranteed Obligations Holders may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that such Guarantor shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest enforce the Guaranty up to the Company of any amount of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each against any Guarantor waives notice of without proceeding against any Default under the Notes other Guarantor or the Guaranteed Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes Borrower, or under any other guaranty covering all or 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 portion of the Guaranteed Obligations.
(d) Except 13.02 The Purchasers recognize and acknowledge that, notwithstanding anything to the contrary contained in this Article 13, the Guarantors' obligations in this Article 13, and all of the Holders' rights and remedies in this Article 13, are subordinated on the same basis as expressly the Guaranteed Obligation to which any such Guaranty relates, as set forth in Section 10.02, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise.
(e) Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. 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 of, or any part thereof, principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or 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 Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the 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 it, on the one hand, this Agreement and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01Mezzanine Transaction Documents.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(i) 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.
Appears in 1 contract
Guarantees. (a) Ashland and Subject to the provisions of this Article X, each other Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder of the Notes, to the extent lawful, and the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration 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, or and interest on the Notes and all other monetary obligations Obligations of the Company Issuer under this Indenture and the Notes and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuer or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture post-petition interest is allowed in such proceeding and the Notes, on the terms set forth in this Indenture by executing this Indenture obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guaranteed Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor it shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any Default default under the Notes or the Guaranteed Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Guarantor Obligations.
(d) Except as expressly set forth in Section 10.0210.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder 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) Subject to Section 10.02 and 10.03 hereof, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. 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 ofpayment, or any part thereof, of principal of of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Guarantor Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the TrusteeIssuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(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 itsuch Guarantor, on the one hand, and the TrusteeHolders, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article VI this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article VIGuarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(h) Each Guarantor also agrees to pay any and all fees, reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or any Holder the Holders in enforcing any rights under this Section 10.01Section.
(i) None of the Issuer or the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) 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 execute 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 deliver 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 instruments 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 do 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 further acts as may be reasonably 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 proper useful to carry out more effectively allow the purpose 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 IndentureIndenture 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) Ashland and Subject to the provisions of this Article X, each other Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder Holder, to the extent lawful, and the Trustee and their successors and assigns (i) Trustee, the full and punctual payment when due, whether at maturity, by acceleration 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, or and interest on the Notes and all other monetary obligations Obligations of the Company under this Indenture and the Notes and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture post-petition interest is allowed in such proceeding and the Notes, on the terms set forth in this Indenture by executing this Indenture obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guaranteed Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor it shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any Default default under the Notes or the Guaranteed Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Guarantor Obligations.
(d) Except as expressly set forth in Section 10.0210.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of 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 Company; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Subject to Section 10.02 and 10.03 hereof, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2, Article VIII or Section 9.1(a)(vi)(A). 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 ofpayment, or any part thereof, of principal of of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the 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 Company to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Guarantor Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company to the Trusteeor any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(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 itsuch Guarantor, on the one hand, and the TrusteeHolders, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article VI this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article VIGuarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(h) Each Guarantor also agrees to pay any and all fees, reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or any Holder the Holders in enforcing any rights under this Section 10.01Section.
(i) Each Guarantor Neither the Company nor the Guarantors shall promptly execute be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and deliver any such further instruments and do such further acts as may notation shall not be reasonably necessary or proper a condition to carry out more effectively the purpose validity of this Indentureany Guarantee.
Appears in 1 contract
Sources: Indenture (Ii-Vi Inc)
Guarantees. (a) Ashland and Subject to the provisions of this Article Thirteen, each other Guarantor that guarantees the Notes pursuant to this IndentureGuarantor, hereby, jointly and severally, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, unconditionally and irrevocably, Guarantees to each Holder and the Trustee Trustee, the Indenture Obligations including, without limitation, the prompt and their successors complete payment and assigns performance by the Issuer and each other Guarantor when due (i) the full and punctual payment when due, whether at the stated maturity, by acceleration acceleration, by redemption or otherwise, of all obligations ) of the Company under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, or interest and interest, if any, on the Notes Securities and all other monetary obligations and liabilities of the Company Issuer under this Indenture (including without limitation interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the Notes and (iiobligations under Section 6.07) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further agrees that the Guaranteed Guarantor Obligations shall rank equally in right of payment with other senior secured Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations. Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor shall it will remain bound under this Article X Thirteen notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) . Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives notice of protest for nonpaymentnon-payment. Each Guarantor waives notice of any Default default under the Notes Securities or the Guaranteed 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 guarantee an absolute, irrevocable and unconditional Guarantee of payment, performance and compliance when due payment (and is not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Guarantor Obligations.
(d) . Except as expressly set forth in Section 10.0213.02 (and except, in the case of the Guarantors identified therein, as set forth in the provisions of Section 13.06), the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full (or pursuant to Sections 8.01 or 10.13(c))), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise.
. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuer or any other person under, this Indenture, the Securities or any other agreement or otherwise; (b) any extension or renewal granted; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Securities or any other agreement; (d) the release of any security held by any 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. Subject to Section 10.02 the provisions of Sections 8.01, 10.13 and 10.03 hereof10.14, each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Each Guarantor further agrees that Obligations or such Guarantor is released from its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment of, or any part thereof, principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the 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 Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply compliance 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 an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the 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 it, on the one hand, and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(i) 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.Sections 8.01 or
Appears in 1 contract
Sources: Supplemental Indenture (Blyth Inc)
Guarantees. (ai) Ashland and each other Guarantor that guarantees Holdings, on a senior unsecured basis (the Notes pursuant to this Indenture“Holdings Guarantee”), jointly and severally, irrevocably hereby fully and unconditionally guarantees, as a primary obligor and not merely as a surety, to each Holder and to the Trustee and their its successors and assigns assignees (ix) the full and punctual payment of principal of and interest on the Securities when due, whether at maturity, by acceleration 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, or interest on the Notes and all other monetary obligations of the Company under this Indenture and with respect to the Notes Securities and (iiy) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture with respect to the Securities and the Notes(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 terms set forth in this Indenture by executing this Indenture 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 (all the foregoing being hereinafter collectively called “Secured Limited Guarantees,” and together with Holdings Guarantee, the “Guaranteed Obligations”)) (x) the full and punctual payment of principal of and interest on the Securities when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company under this Indenture with respect to the Securities and (y) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture with respect to the Securities, in each case subject to the Secured Limited Guarantee Cap. Each Guarantor of Securities further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, Guarantor and that such Guarantor shall will remain bound under this Article X 11 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) obligation. Each Guarantor of Securities waives presentation to, demand of of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor of Securities waives notice of any Default default under the Notes Securities or the Guaranteed Obligations.
. The obligations of each Guarantor hereunder of Securities shall not be affected by (c1) 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 (6) 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 of paymentpayment (subject to the Secured Limited Guarantee Cap, if applicable), performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security Security held for payment of the Guaranteed Obligations.
(d) . Except as expressly set forth in Section 10.02Sections 9.01, 11.02 and 11.06 and subject to the Secured Limited Guarantee Cap, if applicable, the obligations of each Guarantor of Securities hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise.
(e) Subject to Section 10.02 and 10.03 hereof. Without limiting the generality of the foregoing, the obligations of each Guarantor agrees that its Guarantee of Securities herein shall remain 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 with respect to the Securities or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in full force and effect until payment the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in full any manner or to any extent vary the risk of all the Guaranteed Obligationssuch Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity. 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 ofpayment, or any part thereof, of principal of or interest on any Guaranteed Obligation obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the 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 of Securities or the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (iA) the unpaid principal amount of such Guaranteed Obligations, (iiB) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iiiC) all other monetary obligations Guaranteed Obligations of the Company to the Holders and the 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 of Securities agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI 6 for the purposes of any such Guarantor’s Securities Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(h) 11.01. Each Guarantor of Securities also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.0111.01.
(i) 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.
Appears in 1 contract
Sources: Indenture (Transocean Ltd.)
Guarantees. (a) Ashland and each other Guarantor that guarantees Prior to the Notes pursuant to this IndentureClosing Date, jointly and severally, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, to each Holder the Sellers and the Trustee Purchaser shall use commercially reasonable efforts to obtain the release, in form and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration or otherwisesubstance reasonably satisfactory to Sellers, of all obligations and liabilities of SIRVA Worldwide under the Company Continuing Unconditional Limited Guaranty, dated June 30, 2005 (the “Worldwide Guaranty”), by SIRVA Worldwide in favor of LaSalle Bank National Association (“LaSalle”) specifically relating to certain obligations of Transguard under this Indenture (including obligations the letter of credit issued by LaSalle on behalf of Transguard on July 1, 2005. If required to obtain any such release, the Purchaser shall enter into a guaranty in substitution for the Worldwide Guaranty for the benefit of LaSalle from and after the Closing Date or, alternatively, arrange for a replacement letter of credit with a financial institution selected by the Purchaser. In the event the parties cannot obtain the consent of LaSalle for such release, the Purchaser shall promptly reimburse the Sellers for any and all payments made for the benefit of Transguard by SIRVA Worldwide pursuant to the Trustee) and Worldwide Guaranty after the Notes, whether for payment of principal of, premium, if any, or interest on the Notes and all other monetary obligations of the Company under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that such Guarantor shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed ObligationClosing Date.
(b) Each Guarantor waives presentation to, demand of payment from and protest Prior to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default under the Notes or the Guaranteed Obligations.
(c) 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.
(d) Except as expressly set forth in Section 10.02Closing Date, the obligations of each Guarantor hereunder Sellers 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.
either (ei) Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. 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 of, or any part thereof, principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or 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 Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paidterminated the Financial Guarantee Bond, effective as of June 1, 2003, issued by Transguard on behalf of NAVL (the “NAVL Bond”) or (ii) secure delivery of, and thereafter maintain for the benefit of Transguard as collateral for any payments made by Transguard under the NAVL Bond, a clean, irrevocable, unconditional and evergreen letter of credit issued by a bank and in cash, a form reasonably acceptable to the Trustee Purchaser in an amount equal to the sum of (i) the unpaid principal full amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited surety provided by applicable law) and (iii) all other monetary obligations of Transguard under the Company to the TrusteeNAVL Bond.
(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 it, on the one hand, and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(i) 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.
Appears in 1 contract
Sources: Purchase Agreement (Sirva Inc)
Guarantees. (a) Ashland Each Guarantor hereby irrevocably and unconditionally guarantees (in the case of each other Guarantor that guarantees the Notes pursuant to this IndentureForeign Guarantor, jointly and severally, irrevocably and unconditionally guaranteesin the case of each Non-Subsidiary Guarantor, severally but not jointly) as a primary obligor and not merely as a suretysurety on a senior basis, to each Holder and to the Trustee (or any Paying Agent, Registrar, authenticating agent and their successors transfer agent acting on the Trustee’s behalf), and the Trustee’s successor and assigns (or the successor and assign of any Paying Agent, Registrar, authenticating agent and transfer agent acting on the Trustee’s behalf) (i) the full and punctual payment when due, whether at maturityStated Maturity, by acceleration acceleration, by redemption or otherwise, of all obligations of the Company Issuer under this Indenture (including obligations to the Trustee (or any Paying Agent, Registrar, authenticating agent and transfer agent acting on the Trustee’s behalf) and the Notes, whether for payment of principal of, premium, if any, or interest on in respect of the Notes and all other monetary obligations of the Company Issuer under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuer whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture Notes (all of the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article X 10 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default default under the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (i) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes, or any other agreement or otherwise; (ii) any extension or renewal of this Indenture, the Notes or any other agreement; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (iv) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any Guarantor; (v) the failure of any Holder or Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (vi) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
(c) Each 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 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.
(de) Except as expressly set forth in Section Sections 8.01(b), 10.02, 10.06 and 10.08 (with respect to the Swiss Guarantors only), the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder 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 obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(ef) Subject to Section 10.02 and 10.03 hereof, each Each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment ofpayment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company Issuer to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company Issuer to the Holders and the Trustee.
(gh) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Trustee Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(hi) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(ij) Each Upon request of the Trustee, each Guarantor shall promptly execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
Appears in 1 contract
Sources: Indenture (Affinion Group, Inc.)
Guarantees. (a) Ashland and Subject to the provisions of this Article X, each other Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder of the Notes, to the extent lawful, and the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration 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, or and interest on the Notes and all other monetary obligations Obligations of the Company under this Indenture and the Notes and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Company, or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture post-petition interest is allowed in such proceeding and the Notes, on the terms set forth in this Indenture by executing this Indenture obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guaranteed Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor it shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any Default default under the Notes or the Guaranteed Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Guarantor Obligations.
(d) Except as expressly set forth in Section 10.0210.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of 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 Company; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Subject to Section 10.02 and 10.03 hereof, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. 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 ofpayment, or any part thereof, of principal of of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the 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 Company to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Guarantor Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company to the Trusteeor any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(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 itsuch Guarantor, on the one hand, and the TrusteeHolders, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article VI this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article VIGuarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(h) Each Guarantor also agrees to pay any and all fees, reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or any Holder the Holders in enforcing any rights under this Section 10.0110.1.
(i) Each Guarantor Neither the Company nor the Guarantors shall promptly execute be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and deliver any such further instruments and do such further acts as may notation shall not be reasonably necessary or proper a condition to carry out more effectively the purpose validity of this Indentureany Guarantee.
Appears in 1 contract
Guarantees. (a) Ashland and Subject to the provisions of this Article X, each other Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder Holder, to the extent lawful, and the Trustee and their successors and assigns (i) Trustee, the full and punctual payment when due, whether at maturity, by acceleration 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, or and interest on the Notes and all other monetary obligations Obligations of the Company Issuers under this Indenture and the Notes and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuers or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture post-petition interest is allowed in such proceeding and the Notes, on the terms set forth in this Indenture by executing this Indenture obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guaranteed Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor it shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuers of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any Default default under the Notes or the Guaranteed Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Guarantor Obligations.
(d) Except as expressly set forth in Section 10.0210.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (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 Issuers; (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) Subject to Section 10.02 and 10.03 hereof, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. 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 ofpayment, or any part thereof, of principal of of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company Issuers to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee, the Agents or the Trustee on behalf of the Holders and such Agents an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Guarantor Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the TrusteeIssuers or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(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 itsuch Guarantor, on the one hand, and the TrusteeHolders, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article VI this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article VIGuarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(h) Each Guarantor also agrees to pay any and all fees, reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or any Holder the Holders in enforcing any rights under this Section 10.01Section.
(i) Each Guarantor Neither the Issuers nor the Guarantors shall promptly execute be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and deliver any such further instruments and do such further acts as may notation shall not be reasonably necessary or proper a condition to carry out more effectively the purpose validity of this Indentureany Guarantee.
Appears in 1 contract
Guarantees. (a) Ashland and Subject to the provisions of this Article X, each other Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder and Holder, to the extent lawful, the Trustee and their successors and assigns (i) the Agent the full and punctual payment and performance when due, whether at maturity, by acceleration 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, or and interest on the Notes and all other monetary obligations Obligations of the Company Issuers under this Indenture and the Notes and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuers or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture post-petition interest is allowed in such proceeding and the Notes, on the terms set forth in this Indenture by executing this Indenture obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guaranteed Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor it shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuers of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any Default default under the Notes or the Guaranteed Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Guarantor Obligations.
(d) Except as expressly set forth in this Article X, Section 10.0210.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (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 Issuers 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) Subject to Section 10.02 and 10.03 hereof, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 or Article VIII. 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 ofpayment, or any part thereof, of principal of of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company Issuers to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee, the Agents or the Trustee on behalf of the Holders and such Agents an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Guarantor Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the TrusteeIssuers or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(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 itsuch Guarantor, on the one hand, and the TrusteeHolders, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article VI this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article VIGuarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(h) Each Guarantor also agrees to pay any and all fees, reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee Trustee, the Agent or any Holder the Holders in enforcing any rights under this Section 10.01Section.
(i) Each Guarantor acknowledges and agrees that the Guarantee of such Guarantor will be a general senior obligation of such Guarantor and will rank senior in right of payment to all future obligations of such Guarantor that are, by their terms, expressly subordinated in right of payment to such Guarantee and equal in right of payment with all existing and future obligations of such Guarantor that are not so subordinated.
(j) Neither the Issuers nor the Guarantors shall promptly execute be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and deliver any such further instruments notation shall not be a condition to the validity of any Guarantee.
(k) Each Guarantee shall be subject to limitations in accordance with local law in the jurisdiction of organization of the applicable Guarantor and do defenses generally available to guarantors in such further acts 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 may 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 reasonably necessary 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 proper 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 carry out more effectively 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 purpose 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 IndentureSubsidiary 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) Ashland The Company shall not permit any of its Restricted Subsidiaries (other than Co-Issuer Corp. and each other Guarantor that guarantees the Notes pursuant to this Indentureany Insignificant Subsidiary), jointly and severally, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a suretydirectly or indirectly, to each Holder and Guarantee or pledge any assets to secure the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by 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, or interest on the Notes and all any other monetary obligations of the Company under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that such Guarantor shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default under the Notes or the Guaranteed Obligations.
(c) 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.
(d) Except as expressly set forth in Section 10.02, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise.
(e) Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. 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 of, or any part thereof, principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization Indebtedness of the Company or any of its the Company’s other Restricted Subsidiaries unless such Restricted Subsidiary (i) is a Guarantor under this Indenture or otherwise(ii) becomes a Guarantor under this Indenture and simultaneously executes and delivers a supplemental indenture pursuant to which it agrees to be bound by the terms of this Indenture as a Guarantor, provided that such Guarantee shall be senior to or pari passu with such Subsidiary’s Guarantee of such other Indebtedness.
(fb) In furtherance of the foregoing event that any Restricted Subsidiary that is an Insignificant Subsidiary ceases to be an Insignificant Subsidiary, then such Restricted Subsidiary must become a Guarantor and not in limitation of any other right execute a supplemental indenture pursuant to which any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company it agrees to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand be bound by the Trusteeterms of this Indenture as a Guarantor and, forthwith payif requested, or cause to be paid, in cash, to the Trustee deliver an amount equal to the sum Opinion of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company Counsel to the Trustee. The form of the Note Guarantee is attached as Exhibit E hereto.
(gc) Each Guarantor agrees Notwithstanding Section 4.18(a), any Note Guarantee may provide by its terms that it shall not be entitled to any right of subrogation in relation to automatically and unconditionally released and discharged under 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 it, on the one hand, and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this circumstances described under Section 10.0110.05 hereof.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(i) 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.
Appears in 1 contract
Guarantees. (a) Ashland and Subject to the provisions of this Article X, each other Guarantor that guarantees the Notes pursuant to this Indenturehereby, jointly and severally, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, unconditionally and irrevocably, Guarantees to each Holder and the Trustee Trustee, the Securities Obligations including, without limitation, the prompt and their successors complete payment and assigns performance by the Issuer and each other Guarantor when due (i) the full and punctual payment when due, whether at the stated maturity, by acceleration acceleration, by redemption or otherwise, of all obligations ) of the Company under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, or interest and interest, if any, on the Notes Securities and all other monetary obligations and liabilities of the Company Issuer under this Indenture (including without limitation interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the Notes and (iiobligations under Section 7.07) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further agrees that the Guaranteed Guarantor Obligations shall rank equally in right of payment with other senior secured Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations. Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor shall it will remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) . Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives notice of protest for nonpaymentnon-payment. Each Guarantor waives notice of any Default default under the Notes Securities or the Guaranteed Guarantor Obligations.
(c) . Each Guarantor further agrees that its Guarantee herein constitutes a guarantee an absolute, irrevocable and unconditional Guarantee of payment, performance and compliance when due payment (and is not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Guarantor Obligations.
(d) . Except as expressly set forth in Section 10.02, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise.
. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuer or any other person under, this Indenture, the Securities or any other agreement or otherwise; (b) any extension or renewal granted; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Securities or any other agreement; (d) the release of any security held by any 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. Subject to the provisions of Section 10.02 and 10.03 hereof4.10, each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 10.03 hereof. 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 ofpayment, or any part thereof, of principal of or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy insolvency, bankruptcy, dissolution, liquidation or reorganization of the Company Issuer or any other Guarantor or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the Issuer or any other Guarantor or any substantial part of its Subsidiaries 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 or the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shallwill, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Guarantor Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the 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 itsuch Guarantor, on the one hand, and the TrusteeHolders, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article VI this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article VIGuarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01.
(h) Guarantee. Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ counsel fees and expenses) incurred by the Trustee or any Holder the Holders in enforcing any rights under this Section 10.01.
(i) Section. Each of the Guarantors hereby agrees that its Guarantee of the Securities shall remain in full force and effect notwithstanding any failure to endorse on each Security a notation of such Guarantee. If an Officer of a Guarantor whose signature is on this Indenture or a Guarantee no longer holds that office at the time the Trustee authenticates the Security on which such Guarantee is endorsed or at any time thereafter, such Guarantor’s Guarantee of such Security shall nevertheless be valid, The delivery of any Security by the Trustee, after the authentication thereof hereunder shall constitute due delivery of any Guarantee set forth in this Indenture on behalf of each Guarantor. Each Guarantor shall promptly execute (a) assumes all responsibility for being and deliver 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 further instruments Guarantor assumes and do incurs hereunder, and (b) agrees that the Trustee will not have any duty to advise such further acts as may be reasonably necessary Guarantor of information known to it or proper to carry out more effectively any of the purpose of this Indentureregarding such circumstances or risks.
Appears in 1 contract
Sources: Indenture (SFX Entertainment, INC)
Guarantees. (a) Ashland and Subject to the provisions of this Article X, each other Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guaranteesGuarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder of the Notes, to the extent lawful, and the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration 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, or and interest on the Notes and all other monetary obligations Obligations of the Company under this Indenture and the Notes and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Company, or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture post-petition interest is allowed in such proceeding and the Notes, on the terms set forth in this Indenture by executing this Indenture obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guaranteed Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor it shall remain bound under this Article X X, notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any Default default under the Notes or the Guaranteed Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Guarantor Obligations.
(d) Except as expressly set forth in Section 10.0210.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of 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 Company; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Subject to Section 10.02 and 10.03 hereof, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII, as applicable. 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 ofpayment, or any part thereof, of principal of of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the 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 Company to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Guarantor Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company to the Trusteeor any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(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 itsuch Guarantor, on the one hand, and the TrusteeHolders, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article VI this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article VIGuarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(h) Each Guarantor also agrees to pay any and all fees, reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or any Holder the Holders in enforcing any rights under this Section 10.0110.1.
(i) Each Guarantor Neither the Company nor the Guarantors shall promptly execute be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and deliver any such further instruments and do such further acts as may notation shall not be reasonably necessary or proper a condition to carry out more effectively the purpose validity of this Indentureany Guarantee.
Appears in 1 contract
Sources: Indenture (Lannett Co Inc)
Guarantees. (a) Ashland and each other Guarantor that guarantees the Notes pursuant to this Indenture, jointly and severally, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, to each Holder and the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration or otherwise, of all obligations In consideration of the Company under transactions contemplated by this Indenture Agreement, Tinicum hereby unconditionally guaranties to Sellers (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, or interest on the Notes and all other monetary obligations of the Company under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guaranteed ObligationsTinicum Guaranty”). Each Guarantor further agrees ) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, Tinicum will duly and that such Guarantor shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default under the Notes or the Guaranteed Obligations.
(c) 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.
(d) Except as expressly set forth in Section 10.02, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise.
(e) Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. 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 payment ofall obligations, or any part thereofliabilities and undertakings of Buyer under this Agreement, principal including, without limitation, all obligations, liabilities and undertakings of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or Buyer under Sections 2.05 and 2.08 of this Agreement (collectively, the Trustee “Buyer Obligations”). Notwithstanding the forgoing Tinicum’s obligations under this Section 12.15 shall terminate upon the bankruptcy payment of any amounts due to Sellers under Section 2.08 or reorganization upon the determination of Final Net Worth pursuant to Section 2.07, in the Company event that Final Net Worth does not exceed the lesser of Estimated Final Net Worth or any of its Subsidiaries 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 or the Trustee has at law or in equity against any Guarantor by virtue hereofpunctually pay and/or perform, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation 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, or to perform or comply with any other Guaranteed Obligationwithout limitation, each Guarantor hereby promises to 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 an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed “Seller Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Trustee”).
(gc) Each Guarantor agrees The Tinicum Guaranty and the USI Guaranty are each an absolute, unconditional and continuing guarantee by Tinicum and USI, respectively, of the Buyer Obligations and the Seller Obligations, respectively, each in accordance with their terms, and not of their collectibility only. Enforcement of the liabilities and obligations of Tinicum and USI hereunder is in no way conditioned upon any requirement that it shall not be entitled any party first attempt to collect or take any action against Buyer (in the case of Tinicum) or Sellers (in the case of USI) or any other person primarily or secondarily liable with respect to the Buyer Obligations or the Seller Obligations or resort to any right security or other means of subrogation obtaining payment of any of the Buyer Obligations which Buyer, or the Seller Obligations which Sellers, may now have or may acquire after the date hereof or upon any other contingency whatsoever; provided, however, that nothing herein shall adversely affect USI’s or Tinicum’s rights to assert any defense available to Buyer (in relation the case of Tinicum) or Sellers (in the case of USI) under this Agreement or at law. Upon any default in the full and punctual payment and/or performance by Buyer with respect to the Trustee Buyer Obligations or Sellers with respect to the Seller Obligations, in respect each case in accordance with their terms, the liabilities and obligations of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, Tinicum (as between it, on the one hand, and the Trustee, on the other hand, (i) the maturity guarantor of the Guaranteed Obligations guaranteed hereby may be accelerated Buyer Obligations) and USI (as provided in Article VI for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect guarantor of the Guaranteed Obligations guaranteed herebySeller Obligations) hereunder shall, and (ii) in at the event option of any declaration of acceleration of such Guaranteed Obligations as provided in Article VIthe aggrieved party, such Guaranteed Obligations (whether or not become forthwith due and payable) shall forthwith become due , without demand or notice of any nature, all of which are hereby expressly waived by each of USI and payable by such Guarantor for the purposes of this Section 10.01.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(i) Each Guarantor shall promptly execute and deliver such further instruments and do such further acts as Tinicum. Payments hereunder may be reasonably necessary required on any number of occasions from Tinicum or proper to carry out more effectively USI until such time as the purpose of this IndentureBuyer Obligations or Seller Obligations, respectively, are paid or satisfied, as the case may be, in full in accordance with their terms.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Us Industries Inc /De)
Guarantees. (a) Ashland and Subject to the provisions of this Article X, each other Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder of the Notes, to the extent lawful, and the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration 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, or and interest on the Notes and all other monetary obligations Obligations of the Company Issuers under this Indenture and the Notes and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuers or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture post-petition interest is allowed in such proceeding and the Notes, on the terms set forth in this Indenture by executing this Indenture obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guaranteed Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor it shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuers of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any Default default under the Notes or the Guaranteed Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Guarantor Obligations.
(d) Except as expressly set forth in Section 10.0210.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (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 Issuers; (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) Subject to Section 10.02 and 10.03 hereof, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. 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 ofpayment, or any part thereof, of principal of of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company Issuers to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Guarantor Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the TrusteeIssuers or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(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 itsuch Guarantor, on the one hand, and the TrusteeHolders, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article VI this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article VIGuarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(h) Each Guarantor also agrees to pay any and all fees, reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or any Holder the Holders in enforcing any rights under this Section 10.01Section.
(i) Neither the Issuers nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) 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 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 execute 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 deliver 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 instruments 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 do 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 further acts as may be reasonably necessary or proper measures and/or promptly procure the fulfillment of all prerequisites allowing it to carry out more effectively promptly make the purpose of this Indenture.(requested) payment(s) hereunder from time to time, including the following:
Appears in 1 contract
Guarantees. (a) Ashland Subject to the provisions of this Article 15, the Issuer and each other Guarantor that guarantees the Notes pursuant to this IndentureSubsidiary Guarantors hereby irrevocably and unconditionally guarantee, jointly and severally, irrevocably and unconditionally guarantees, as on a primary obligor and not merely as a surety, senior basis to each Holder holder and to the Trustee and their its successors and assigns (i) the full and punctual payment when due, whether at maturityStated Maturity, by acceleration 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, of or interest on the Notes Notes, delivery of the Settlement Amount and all other monetary obligations of the Company under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”"GUARANTEED OBLIGATIONS"). Each Guarantor Subject to Section 15.02, the Issuer and the Subsidiary Guarantors further agrees agree that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantoreither the Issuer or the Subsidiary Guarantors, and that such Guarantor the Issuer and the Subsidiary Guarantors shall remain bound under this Article X 15 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives To the extent permitted by law, the Issuer and the Subsidiary Guarantors waive presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default under the Notes or the Guaranteed Obligations.
(c) 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.
(d) Except as expressly set forth in Section 10.02, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise.
(e) Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. 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 of, or any part thereof, principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or 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 Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the 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 it, on the one hand, and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(i) 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.Guaranteed
Appears in 1 contract
Sources: Indenture (CSK Auto Corp)
Guarantees. (To guarantee full discharge of all obligations, principal and accessory, that the DEBTOR assumes in this Contract, as well as the penalties, judicial or extrajudicial costs and expenses, taxes, and similar charges that the LENDER incurs and/or may incur for covering its credit, the DEBTOR delivers and/or will deliver to the LENDER:
a) Ashland Promissory Notes in the form of Annex B of this Contract, duly signed by the authorized signatory of the DEBTOR and each other Guarantor that guarantees endorsed by ▇▇▇ das Contas Produtora de Petróleo LTDA ("Promissory Notes) to be included and indicated in Table III, in the Notes pursuant to this Indenturecapacity of GUARANTOR(S), CO-OBLIGOR(S) jointly and severally, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, to each Holder and severally with the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration or otherwise, of DEBTOR for all obligations of the Company under this Indenture (including Contract and Request for Disbursement by the DEBTOR, and who may at any time be called upon to honor the obligations to here assumed, in the Trustee) and the Notes, whether for payment of principal of, premium, if any, or interest on the Notes and all other monetary obligations of the Company under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees event that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that such Guarantor shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default under the Notes or the Guaranteed Obligations.
(c) 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.
(d) Except as expressly set forth in Section 10.02, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination DEBTOR for any reason, including fails to make timely payments of what is owed, waiving any claim benefit of waiverorder and division.
b) Addendum to this Contract through which Rio das Contas Produtora de Petróleo LTDA will be constituted as joint debtor in the Contract, releasesuch that the same, surrenderirrevocably and irreversibly, alteration or compromisedeclares agreement to the terms and conditions of the Contract, ratifying it in its entirety and taking joint responsibility for all obligations assumed by the DEBTOR in the Contract ("Amendment to the Contract").
c) Further Assurances in Annexed Instruments properly defined, described, and shall not characterized in Table VI. Paragraph One -- The Promissory Notes and Amendment to the Contract, as described in items "a" and "b" above, will be submitted to the LENDER within 15 (fifteen) days from the date this Contract is signed, under penalty of the transaction’s coming due early. Paragraph Two -- The formalization and registration of the guarantee for Assignment of Credit Rights arising in the Natural Gas Purchase and Sale Contract No. 48000.003518/97-82 signed between Rio das Contas Produtora de Petróleo LTDA and Petróleo Brasileiro SA - Petrobrás, through applicable contractual or statutory devices for its proper formalization, described in Table VI, must occur within 30 days from the date of signing of this Contract. If the guarantee for Assignment of Credit Rights arising in Natural Gas Purchase and Sale Contract No. 48000.003518/97-82 signed between Rio das Contas Produtora de Petróleo LTDA and Petróleo Brasileiro SA - Petrobrás, as described in Table VI and subject to any defense of setoffthe conditions established in this Contract, counterclaimis not lodged within the period prescribed in this Clause 17 or depreciates and/or gets lost, recoupment or termination whatsoever or by reason of the invalidityso as to become awkward, illegality or unenforceability of the Guaranteed Obligations or otherwise.
(e) Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. 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 ofinappropriate, or any part thereof, principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or insufficient to secure the Trustee upon the bankruptcy or reorganization of the 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 Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to DEBTOR in this Contract, it is hereby certain and agreed that the Trustee.
(g) Each Guarantor agrees that it shall not be entitled to any right DEBTOR and/or guaranteeing third parties will constitute the Assignment of subrogation Credit Rights 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 it, on the one hand, and the Trustee, on the other hand, (i) the maturity favor of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI for the purposes LENDER, by contractual or legal provisions applicable to its proper formalization and registration, ensuring Assignment of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect Shares of the Guaranteed Obligations guaranteed herebycompany Rio das Contas Produtora de Petróleo LTDA within 15 days from the referred-to nonformalization or depreciation, and (ii) in and/or loss of collateral, under penalty of early termination of the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01transaction.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(i) 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.
Appears in 1 contract
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) Ashland and each other Guarantor that guarantees the Notes pursuant to this Indenture, jointly and severally, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, to each Holder and Guaranty;
(b) the Trustee and their successors and assigns Guarantees of the Subsidiaries incurred (i) the full and punctual payment when due, whether at maturity, by acceleration or otherwise, of all obligations as guarantors of the Company Existing Notes under this Indenture (including obligations the Existing Guarantees and any Guarantee of the Subsidiaries that may be required to be incurred pursuant to the Trustee) and the Notes, whether for payment of principal of, premium, if any, or interest on the Notes and all other monetary obligations of the Company under this Indenture and the Notes Existing Purchase Agreements and (ii) the full and punctual performance within applicable grace periods of all other obligations as guarantors of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that such Guarantor shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default under the Notes or the Guaranteed Obligations.Bank Credit Agreement;
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee Guarantees of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment Indebtedness of the Guaranteed Obligations.Subsidiaries permitted by Section 8.2 and Guarantees of Operating Leases of the Subsidiaries not prohibited by Section 8.12;
(d) Except as expressly set forth in Section 10.02, the obligations Guarantees 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 additional Indebtedness of the invalidityCompany permitted by clause (d) of Section 8.1, illegality or unenforceability provided that the instrument representing any such Guarantee contains an acknowledgement of the Guaranteed Obligations existence of the Guaranty and an agreement on the part of the beneficiary of such Guarantee not to contest the validity of the Guaranty or otherwise.the Notes;
(e) Subject to Section 10.02 Guarantees by the MWD Subsidiaries of Indebtedness of M▇▇▇▇▇▇▇▇▇ W▇▇▇ Direct; provided that immediately after the creation, incurrence, assumption or existence of any such Guarantee and 10.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force after giving effect thereto the aggregate amount of Indebtedness of M▇▇▇▇▇▇▇▇▇ W▇▇▇ Direct guaranteed by the outstanding Guarantees permitted under this clause (e) and effect until payment in full of all the Guaranteed Obligations. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment of, or any part thereof, principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 or the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee exceed an amount equal to the sum of (i) difference between $30,000,000 and the unpaid principal 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 Guaranteed ObligationsGuarantees 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 (iif) accrued and unpaid interest on such Guaranteed Obligations under clause (but only e) of 8.14, without duplication, shall not exceed an amount equal to the extent not prohibited difference between $30,000,000 and the aggregate amount of all outstanding loans and advances and all capital contributions made by applicable law) and (iii) all other monetary obligations of the Company or any Subsidiary to the Trustee.M▇▇▇▇▇▇▇▇▇ W▇▇▇ Direct;
(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 it, on the one hand, and the Trustee, on the other hand, (i) Guarantees by the maturity Company or any Subsidiary of Indebtedness or other obligations of any of the Guaranteed Obligations guaranteed hereby may be accelerated as Financial Services Companies, provided in Article VI for the purposes that such Guarantees are permitted by clause (d) of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, Section 8.1 hereof and (ii) in Guarantees by any of the event Financial Services Companies of Indebtedness or other obligations of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.Financial Services Companies;
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred additional Guarantees by the Trustee Company of Indebtedness or any Holder in enforcing any rights other obligations, provided that such Guarantees are permitted by clause (d) of 8.1 and that immediately after the 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 10.01.clause (h) does not exceed $5,000,000; and
(i) Each Guarantor Notwithstanding anything in the foregoing, no Guarantee of Indebtedness shall promptly execute at any time be permitted to be made by FRI, any of the TV Shopping Companies, either of the MWD Subsidiaries, the Credit Card Bank or any Subsidiary that is a subsidiary of FRI, any of the TV Shopping Companies, either of the MWD Subsidiaries or the Credit Card Bank, other than (i) as permitted under clause (e) with respect to the MWD Subsidiaries and deliver (ii) Guarantees of Indebtedness of one or more of the TV Shopping Companies by one of such further instruments and do such further acts as may TV Shopping Companies."
SECTION 3.09. The following Section 8.18 shall be reasonably necessary or proper added to carry out more effectively the purpose of this Indenture.Purchase Agreement immediately following Section 8.17 thereof:
Appears in 1 contract
Sources: Fourth Amendment Agreement (Fingerhut Companies Inc)
Guarantees. (a) Ashland Holdings, in consideration of the Purchaser's ---------- entering into this Agreement and purchasing Notes, unconditionally and irrevocably guarantees to the Purchaser and each other Guarantor that guarantees and every holder from time to time of any of the Notes pursuant to this Indenture, jointly and severally, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, to each Holder and the Trustee and their successors and assigns (i) the full due and punctual payment when due, whether at maturity, by acceleration or otherwise, of all obligations sums which may become due or be stated in the Notes or in this Agreement to become due under the terms and provisions of the Company under Notes and this Indenture (including obligations to Agreement in respect of the Trustee) principal of and the Notes, whether for payment of principal of, premiumprepayment charge, if any, or and interest on the Notes and all other monetary obligations of the Company under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that such Guarantor shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default under the Notes or the Guaranteed Obligations.
(c) 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.
(d) Except as expressly set forth in Section 10.02, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise.
(e) Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. 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 of, or any part thereof, principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored overdue principal, prepayment charge, if any, and, to the extent permitted by any Holder or the Trustee upon the bankruptcy or reorganization of the 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 hereofapplicable law, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become dueoverdue interest), whether at stated maturity, by acceleration, by redemption notice of prepayment or otherwise, and all other sums which may become due from the Borrower or be stated to perform be or comply with become so due under the Notes or this Agreement. Holdings further guarantees to the Purchasers and each holder as aforesaid the due performance and observance by the Borrower of all covenants, agreements and conditions on the Borrower's part to be performed under this Agreement and any other Guaranteed Obligation, each Guarantor hereby promises document from time to and shall, upon receipt of written demand time delivered by the Trustee, forthwith pay, or cause Borrower pursuant to be paid, in cash, this Agreement. Holdings further guarantees to the Trustee an amount equal Purchasers and each holder as aforesaid payment of all other amounts payable by the Borrower under this Agreement or the Notes, including costs, expenses (including fees and expenses of counsel) and taxes (such principal, prepayment charge, if any, interest and other obligations guaranteed as aforesaid being hereinafter collectively called the "Obligations" and to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the ----------- extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the 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 it, on the one hand, and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(h) Each Guarantor also lawful agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expensesexpenses of counsel) incurred by the Trustee or each holder of any Holder Note in enforcing any rights under in connection with this Section 10.01Section.
(i) 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.
Appears in 1 contract
Guarantees. (a) Ashland Subject to Section 6 hereof, each Guarantor hereby absolutely, unconditionally and each other Guarantor that irrevocably guarantees the Notes pursuant to this Indenture(each, jointly a “Guarantee”), on a joint and severally, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a suretyseveral basis, to each 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 Trustee and their its successors and assigns on a senior basis, irrespective of the validity and enforceability of the Indenture, 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 or otherwise, of all monetary obligations of the Company under this the Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, or interest on the Notes and all other monetary obligations of the Company under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”)Indenture. Each Guarantor further agrees that its obligations hereunder shall be unconditional irrespective of the Guaranteed Obligations may be extended absence or renewedexistence of any action to enforce the same, in whole the recovery of any judgment against the Company (except to the extent such judgment is paid) or in part, without notice any waiver or further assent from each amendment of the provisions of the Indenture or the 2019 Notes to the extent that any such Guarantor, and action or any similar action would otherwise constitute a legal or equitable discharge or defence of such Guarantor (except that such Guarantor waiver or amendment shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Obligationbe effective in accordance with its terms).
(b) Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors will be jointly and severally obligated to pay the same immediately. Each Guarantor waives presentation further agrees that its Guarantee constitutes a guarantee of payment, performance and compliance and not merely of collection.
(c) Subject to this Section 2 and 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 action to enforce the same, any waiver or consent by any Holder of the 2019 Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Without limiting the generality of the foregoing, each Guarantor’s liability under this Guarantee shall extend to all obligations under the 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 payment from and protest to the Company of any of the Guaranteed Obligations its Guarantee, and also waives diligence, notice of acceptance of its Guarantee, presentment, demand for payment, notice of protest for nonpayment. Each Guarantor waives notice of any Default under the Notes or the Guaranteed Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee of non-payment, performance the filing of claims with a court in the event of merger or bankruptcy of the Company and compliance when due (and not a guarantee of collection) and waives any right to require that a proceeding first against the Company or any resort other Person. The obligations of a Guarantor shall not be had affected by any Holder failure or policy on the part of the Trustee to exercise any security held for payment right or remedy under the Indenture or the 2019 Notes of any series. Subject to Section 5 hereof, each Guarantor covenants that this Guarantee will not be discharged except by complete performance of the Guaranteed Obligationsobligations contained in the 2019 Notes and the Indenture.
(d) Except as expressly set forth The obligation of a Guarantor to make any payment hereunder may be satisfied by causing the Company or any other Guarantor to make such payment. If any Holder of any 2019 Notes or the Trustee is required by any court or otherwise to return to the Company or any Guarantor or any custodian, trustee, liquidator or other similar official acting in Section 10.02, the obligations of each Guarantor hereunder shall not be subject relation 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 invalidityCompany or any such Guarantor any amount paid by any of them to the Trustee or such Holder, illegality or unenforceability of any applicable Guarantee, to the Guaranteed Obligations or otherwiseextent theretofore discharged, shall be reinstated in full force and effect.
(e) Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Each Guarantor further also agrees that its Guarantee herein shall continue to be effective or be reinstated, as pay any and all costs and expenses (including reasonable attorneys’ fees) incurred by the case may be, if at any time payment of, Trustee or any part thereof, principal Holder of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or 2019 Notes in enforcing any of their respective rights under its Subsidiaries or otherwiseGuarantee.
(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 Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Trustee.
(g) Each Guarantor agrees that it shall will not be entitled to any right of subrogation in relation to the Trustee Holders of the 2019 Notes in respect of any Guaranteed Obligations obligations guaranteed hereby until payment and performance in full of all Guaranteed Obligationsobligations guaranteed hereby. Each Guarantor further agrees that, as between itthe Guarantors, on the one hand, and the Holders of the 2019 Notes and the Trustee, on the other hand, (i1) the maturity of the Guaranteed Obligations obligations guaranteed hereby may be accelerated as provided in Article VI VII of the First Supplemental Indenture for the purposes of any Guarantee hereinthis Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations obligations guaranteed hereby, and (ii2) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article VIVII of the First Supplemental Indenture, such Guaranteed Obligations obligations (whether or not due and payable) shall will forthwith become due and payable by such Guarantor the Guarantors for the purposes of this Section 10.01.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(i) 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 IndentureGuarantee. 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.
(g) Any term or provision of this Amendment No. 3 to 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 other contingent and fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Section 2, result in the obligations of such Guarantor under its Guarantee not constituting either a fraudulent transfer or conveyance or voidable preference, financial assistance or improper corporate benefit, or violating the corporate purpose of the relevant Guarantor or any applicable capital maintenance or similar laws or regulations affecting the rights of creditors generally under any applicable law or regulation.
Appears in 1 contract
Sources: Amendment No. 3 to First Supplemental Indenture (International Game Technology PLC)
Guarantees. (a) Ashland and Subject to the provisions of this Article X, each other Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, unconditionally and irrevocably and unconditionally guarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder of the Notes, to the extent lawful, and the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration 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, or and interest on the Notes and all other monetary obligations of the Company Issuer under this Indenture and the Notes and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuer or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture post-petition interest is allowed in such proceeding and the Notes, on the terms set forth in this Indenture by executing this Indenture obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guaranteed Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor it shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any Default default under the Notes or the Guaranteed Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Guarantor Obligations.
(d) Except as expressly set forth in Section 10.0210.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder 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) Subject to Section 10.02 and 10.03 hereof, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. 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 ofpayment, or any part thereof, of principal of of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Guarantor Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the TrusteeIssuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(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 itsuch Guarantor, on the one hand, and the TrusteeHolders, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article VI this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article VIGuarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(h) Each Guarantor also agrees to pay any and all fees, reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or any Holder the Holders in enforcing any rights under this Section 10.01Section.
(i) Each Guarantor Neither the Issuer nor the Guarantors shall promptly execute be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and deliver any such further instruments and do such further acts as may notation shall not be reasonably necessary or proper a condition to carry out more effectively the purpose validity of this Indentureany Guarantee.
Appears in 1 contract
Sources: Indenture (Solgar)
Guarantees. (a) Ashland Subject to the provisions of this Article X, each Guarantor hereby fully, unconditionally and each other Guarantor that guarantees the Notes pursuant to this Indenture, jointly and severally, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, jointly and severally with each other Guarantor, to each Holder of the Notes, to the extent lawful, and the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration 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, or and interest on the Notes and all other monetary obligations of the Company Issuer under this Indenture and the Notes and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuer or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture post-petition interest is allowed in such proceeding and the Notes, on obligations under Section 7.6) and the terms set forth in this Indenture by executing this Indenture Security Documents (all the foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guaranteed Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor it shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any Default default under the Notes or the Guaranteed Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Guarantor Obligations.
(d) Except as expressly set forth in Section 10.0210.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder 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, the Security Documents, the Intercreditor Agreement or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes, the Security Documents, the Intercreditor Agreement or any other agreement; (d) the release of any security held by any 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) Subject to Section 10.02 and 10.03 hereof, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. 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 ofpayment, or any part thereof, of principal of of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Guarantor Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the TrusteeIssuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(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 itsuch Guarantor, on the one hand, and the TrusteeHolders, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article VI this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article VIGuarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(h) Each Guarantor also agrees to pay any and all fees, reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee Trustee, the Collateral Agent or any Holder the Holders in enforcing any rights under this Section 10.01Section.
(i) Each Guarantor Neither the Issuer nor the Guarantors shall promptly execute be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and deliver any such further instruments and do such further acts as may notation shall not be reasonably necessary or proper a condition to carry out more effectively the purpose validity of this Indentureany Guarantee.
Appears in 1 contract
Guarantees. (a) Ashland and Subject to the provisions of this Article X, each other Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder Holder, to the extent lawful, and the Trustee and their successors and assigns (i) Trustee, the full and punctual payment and performance when due, whether at maturity, by acceleration 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, or and interest on the Notes and all other monetary obligations Obligations of the Company Issuers under this Indenture and the Notes and (iiincluding, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuers or any Guarantor (or that would have accrued but for the filing of such petition or the commencement of such proceeding) the full and punctual performance within applicable grace periods of all other obligations of the Company whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture post-petition interest is allowed in such proceeding and the Notes, on the terms set forth in this Indenture by executing this Indenture obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guaranteed Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor it shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuers of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any Default default under the Notes or the Guaranteed Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Guarantor Obligations.
(d) Except as expressly set forth in Section 10.0210.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (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 Issuers 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) Subject to Section 10.02 and 10.03 hereof, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. 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 ofpayment, or any part thereof, of principal of of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company Issuers to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Guarantor Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the TrusteeIssuers 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 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 itsuch Guarantor, on the one hand, and the TrusteeHolders, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article VI this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article VIGuarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(h) Each Guarantor also agrees to pay any and all fees, reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or any Holder the Holders in enforcing any rights under this Section 10.01Section.
(i) Each Guarantor acknowledges and agrees that the Guarantee of such Guarantor will be a general senior obligation of such Guarantor and will rank senior in right of payment to all future obligations of such Guarantor that are, by their terms, expressly subordinated in right of payment to such Guarantee and equal in right of payment with all existing and future obligations of such Guarantor that are not so subordinated.
(j) Neither the Issuers nor the Guarantors shall promptly execute be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and deliver any such further instruments and do such further acts as may notation shall not be reasonably necessary or proper a condition to carry out more effectively the purpose validity of this Indentureany Guarantee.
Appears in 1 contract
Sources: Indenture (Atotech LTD)
Guarantees. Prior to the Merger Date, the Securities will not be guaranteed. On or promptly following the Merger Date, the Securities will be guaranteed by the Guarantors party to a Supplemental Indenture.
(a) Ashland and each other Each Guarantor that guarantees the Notes pursuant to this Indenture, upon execution of a Supplemental Indenture shall jointly and severally, irrevocably and unconditionally guaranteesguarantee on a senior basis, as a primary obligor and not merely as a surety, to each Holder Holder, the Notes Collateral Agent and to the Trustee and their its successors and assigns (i) the full and punctual payment when due, whether at maturityStated Maturity, by acceleration acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the TrusteeTrustee and the Notes Collateral Agent) and the NotesSecurities, whether for payment of principal of, premium, if any, or interest on in respect of the Notes Securities and all other monetary obligations of the Company under this Indenture and the Notes Securities and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture Securities (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article X 10 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default 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 Notes Col- lateral Agent or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the 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, the Notes Collateral Agent or the Trustee for the Guaranteed Obligations or any Guarantor; (v) the failure of any Holder, the Notes Collateral Agent 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 10.08
(c) Each Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Guarantors, such that such Guarantor’s obligations would be less than the full amount claimed. Each Guarantor hereby waives any right to which it may be entitled to have the assets of the Company first be used and depleted as payment of the Company’s or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder. Each Guarantor hereby waives any right to which it may be entitled to require that the Company be sued prior to an action being initiated against such Guarantor.
(cd) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder Holder, the Notes Collateral Agent or the Trustee to any security held for payment of the Guaranteed Obligations.
(de) Except as expressly set forth in Section 10.02Sections 8.01, 8.04, 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, the Notes Collateral Agent 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 obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(ef) Subject to Section 10.02 Except as set forth in Sections 8.01, 8.04 and 10.03 hereof10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Each Except as set forth in Sections 8.01, 8.04 and 10.02, each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment ofpayment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder Holder, the Notes Collateral Agent or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries or otherwise.
(fg) In furtherance of the foregoing and not in limitation of any other right which any Holder Holder, the Notes Collateral Agent or the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders, the Notes Collateral Agent or the Trustee an amount equal to the sum of (i) the unpaid principal prin- cipal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the TrusteeHolders, the Notes Collateral Agent and the Trustee in 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 Trustee Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between it, on the one hand, and the Holders, the Notes Collateral Agent and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(hi) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee Trustee, the Notes Collateral Agent or any Holder in enforcing any rights under this Section 10.01.
(ij) Each Upon request of the Trustee, each Guarantor shall promptly execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
Appears in 1 contract
Guarantees. (a) Ashland Each of AOL and each other Guarantor that guarantees the Notes pursuant to this IndentureHistoric TW hereby, jointly and severally, unconditionally and irrevocably and unconditionally guaranteesguarantees to the Administrative Agent, as a primary obligor and not merely as a surety, to each Holder and for the Trustee ratable benefit of the Lenders and their successors respective successors, indorsees, transferees and assigns assigns, the prompt and complete payment and performance by the Designated Borrowers when due (i) the full and punctual payment when due, whether at the stated maturity, by 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, or interest on the Notes and all other monetary obligations of the Company under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that such Guarantor shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from Time Warner hereby unconditionally and protest irrevocably guarantees to the Company of any Administrative Agent, for the ratable benefit of the Guaranteed 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 notice of protest for nonpayment. Each Guarantor waives notice of any Default under the Notes or the Guaranteed ObligationsTWFI.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee of paymentTBS 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 and compliance by Historic TW when due (whether at the stated maturity, by acceleration or otherwise) of its obligations and not a guarantee of collectionliabilities under this Guarantee (the "Historic TW Obligations") 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 Obligationsincluding under Section 2(a) hereof.
(d) Except as expressly set forth in Section 10.02, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise.
(e) Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its This Guarantee shall remain in full force and effect until payment the Obligations are paid in full full, no Letter of all Credit shall be outstanding (unless such Letter of Credit is cash collateralized in accordance with Section 2.05(c) of the Guaranteed Credit Agreement) and the Commitments are terminated, notwithstanding that from time to time prior thereto either one or both of the Designated Borrowers may be free from any Obligations. .
(e) Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstatedwhenever, as the case may be, if at any time payment oftime, or from time to time, it shall make any part thereof, principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or payment to the Trustee upon the bankruptcy or reorganization of the Company Administrative Agent or any Lender on account of its Subsidiaries or otherwiseliability hereunder, it will notify the Administrative Agent and such Lender in writing that such payment is made 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 or Credit Document to the Trustee has at law or in equity against any Guarantor by virtue hereofcontrary notwithstanding, upon the failure maximum liability of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to 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, such Guarantor under applicable federal and state laws relating to the Trustee an amount equal insolvency of debtors (after giving effect to the sum right of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Trusteecontribution established in Section 3 hereof).
(g) Each Guarantor agrees that it shall not be entitled to No payment or payments made by either of the Designated Borrowers, any right of subrogation in relation to the Trustee in respect 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 Guaranteed Obligations guaranteed hereby until action or proceeding or any setoff or appropriation or payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between it, on the one hand, and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may shall be accelerated as provided in Article VI for deemed to modify, reduce, release or otherwise affect the purposes liability of any Guarantee hereinGuarantor hereunder who shall, notwithstanding any stay, injunction such payment or payments (other prohibition preventing than payments made by such acceleration Guarantor in respect of the Guaranteed Obligations guaranteed herebyor payments received or collected from such Guarantor in respect of the Obligations), and (ii) remain liable for the Obligations and, in the event case of any declaration of acceleration TBS and TWCI, the Historic TW Obligations, up to the maximum liability of such Guaranteed Guarantor hereunder until the Obligations as provided are paid in Article VIfull, no Letter of Credit shall be outstanding (unless such Guaranteed Obligations (whether or not due Letter of Credit is cash collaterized in accordance with Section 2.05(c) of the Credit Agreement) and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01Commitments are terminated.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(i) 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.
Appears in 1 contract
Sources: Credit Agreement (Time Warner Inc)
Guarantees. (a) Ashland and Subject to the provisions of this Article X, each other Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder of the Notes, to the extent lawful, and the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration 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, or and interest on the Notes and all other monetary obligations Obligations of the Company Issuer under this Indenture and the Notes and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuer or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture post-petition interest is allowed in such proceeding and the Notes, on the terms set forth in this Indenture by executing this Indenture obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guaranteed Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor it shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any Default default under the Notes or the Guaranteed Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Guarantor Obligations.
(d) Except as expressly set forth in Section 10.0210.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder 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) Subject to Section 10.02 and 10.03 hereof, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. 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 ofpayment, or any part thereof, of principal of of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Guarantor Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the TrusteeIssuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(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 itsuch Guarantor, on the one hand, and the TrusteeHolders, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article VI this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article VIGuarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(h) Each Guarantor also agrees to pay any and all fees, reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or any Holder the Holders in enforcing any rights under this Section 10.01Section.
(i) None of the Issuer or the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) 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 promptly execute 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 deliver further provided that such further instruments and do such further acts 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 reasonably necessary 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 proper with deduction of Swiss Withholding Tax at a reduced rate, by discharging the liability to carry out more effectively such tax by notification pursuant to applicable law (including double tax treaties) rather than payment of the purpose tax;
(ii) if the notification procedure pursuant to sub-paragraph (i) above does not apply, deduct Swiss Withholding Tax at the rate of this Indenture35% (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) Ashland and Subject to the provisions of this Article X, each other Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder Holder, to the extent lawful, and the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration 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, or and interest on the Notes and all other monetary obligations Obligations of the Company Issuers under this Indenture and the Notes and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuers or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture post-petition interest is allowed in such proceeding and the Notes, on the terms set forth in this Indenture by executing this Indenture obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guaranteed Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor shall it will remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuers of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any Default default under the Notes or the Guaranteed Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Guarantor Obligations.
(d) Except as expressly set forth in Section 10.0210.2 and Article VIII, the obligations of each Guarantor hereunder shall will not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall will not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein will not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (ii) any extension or renewal of any thereof; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (iv) the release of any security held by any Holder for the Guarantor Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Issuers; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (viii) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Subject to Section 10.02 and 10.03 hereof, each Each Guarantor agrees that its Guarantee shall herein will remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. 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 ofpayment, or any part thereof, of principal of of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company Issuers to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall will become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shallwill, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Guarantor Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the TrusteeIssuers or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(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 itsuch Guarantor, on the one hand, and the TrusteeHolders, on the other hand, (i) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article VI this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (ii) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article VIGuarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall will forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(h) Each Guarantor also agrees to pay any and all fees, reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or any Holder the Holders in enforcing any rights under this Section 10.01Section.
(i) Each Guarantor shall promptly execute Neither the Issuers nor the Guarantors will be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and deliver any such further instruments and do such further acts as may notation will not be reasonably necessary or proper a condition to carry out more effectively the purpose validity of this Indentureany Guarantee.
Appears in 1 contract
Guarantees. (a) Ashland and each other Each Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably and unconditionally guaranteesguarantees on a secured basis, as a primary obligor and not merely as a surety, to each Holder and the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration or otherwise, of all obligations of the Company Issuer under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, or interest on on, if any, the Notes and all other monetary obligations of the Company Issuer under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuer whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “"Guaranteed Obligations”"). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article X Ten notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default default under the Notes or the Guaranteed Obligations.
(c) 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.
(d) Except as expressly set forth in Section Sections 8.01(b), 10.02, 10.03 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.
(e) Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. 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 ofpayment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company Issuer to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee (or its designee) an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company Issuer to the 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 it, on the one hand, and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI Six for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VISix, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ ' fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(i) . 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.
Appears in 1 contract
Sources: Indenture (Kronos Worldwide Inc)
Guarantees. (a) Ashland and Except as permitted in Section 4.24, each other Note Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, severally irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, guarantees to each Holder and to the Trustee and their its successors and assigns (i1) the full and punctual payment when due, whether at maturityStated Maturity, by acceleration acceleration, by redemption or otherwise, of all obligations of the Company Issuer under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, or interest, premium, if any, or interest on on, the Notes and all other monetary obligations of the Company Issuer under this Indenture and the Notes and (ii2) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuer whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Note Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Note Guarantor, and that each such Note Guarantor shall remain bound under this Article X 11 notwithstanding any extension or renewal of any Guaranteed Obligation. The Note Guarantees will be substantially in the form of Exhibit B or C hereto.
(b) Each Note Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Note Guarantor waives notice of any Default default under the Notes or the Guaranteed Obligations. The obligations of each 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 Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (2) any extension or renewal of any thereof; (3) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (4) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (5) the failure of any Holder or Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (vi) 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.
(d) Each Note Guarantor further agrees that its Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(de) Except as expressly set forth in Section 10.02Sections 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, wilful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Note Guarantor or would otherwise operate as a discharge of any Note Guarantor as a matter of law or equity.
(ef) Subject to Section 10.02 Except as expressly set forth in Sections 8.02, 11.02, 11.06, 11.08 and 10.03 hereofthe Intercreditor Deeds, each Note Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. 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 ofpayment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company Issuer to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Note Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (i1) the unpaid principal amount of such Guaranteed Obligations, (ii2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii3) all other monetary obligations of the Company Issuer to the Holders and the Trustee.
(gh) 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 Note Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (i1) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii2) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.0111.01.
(hi) Each Note Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.0111.01.
(ij) Each The Company shall procure that each of the Note Guarantors shall provide Note Guarantees within 10 days of the Closing Date, provided that Note Guarantors representing at least 75% of the EBITDA of the Company and the Restricted Subsidiaries on a combined basis for the fiscal year ended December 31, 2009 shall have provided Note Guarantees on or before the Closing Date.
(k) Upon request of the Trustee, each Note Guarantor shall 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.
Appears in 1 contract
Sources: Indenture (Virgin Media Inc.)
Guarantees. (a) Ashland and each other Each Guarantor that guarantees the Notes pursuant to this Indenture, jointly and severally, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, to each Holder and the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by 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, or interest on the Notes and all other monetary obligations of the Company under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that such Guarantor shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default under the Notes or the Guaranteed Obligations.
(c) 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.
(d) Except as expressly set forth in Section 10.02, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise.
(e) Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. 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 of, or any part thereof, principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or 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 Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the 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 it, on the one hand, and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(i) 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.
Appears in 1 contract
Sources: Indenture (Valvoline Inc)
Guarantees. (a) Ashland and each other Each Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a suretysurety on a senior basis, to each Holder and to the Trustee and their its successors and assigns (i) the full and punctual payment when due, whether at maturityStated Maturity, by acceleration acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee) Trustee and the Notes Collateral Agent) under this Indenture, the Notes, the Security Documents and the Intercreditor Agreement, whether for payment of principal of, premium, if any, or interest on the Notes and all other monetary obligations of the Company under this Indenture Indenture, the Notes, the Security Documents and the Notes Intercreditor Agreement and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and Indenture, the Notes, on the terms set forth in this Indenture by executing this Indenture Security Documents and the Intercreditor Agreement (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that 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 will be secured by security interests in the Collateral owned by such Guarantor to the extent provided for in the Security Documents and as required pursuant to Sections 4.12 and 4.15.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default default under the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (i) the failure of any Holder, the Trustee or the Notes Collateral Agent to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes, 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 Agent for the Guaranteed Obligations or any Guarantor; (v) the failure of any Holder, Trustee or the Notes Collateral Agent to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (vi) any change in the ownership of such Guarantor, except as provided in Section 10.02(b).
(c) Subject to Section 10.02(a), each Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Guarantors, such that such Guarantor’s obligations would be less than the full amount claimed. Each Guarantor hereby waives any right to which it may be entitled to have the assets of the Company or any other Guarantor first be used and depleted as payment of the Company’s or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder. Each Guarantor hereby waives any right to which it may be entitled to require that the Company be sued prior to an action being initiated against such Guarantor.
(d) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder Holder, the Trustee or the Trustee Notes Collateral Agent to any security held for payment of the Guaranteed Obligations.
(de) Except as expressly set forth in Section 10.02Sections 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 compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder, the Trustee or the Notes Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes, any Security Document or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(ef) Subject to Section 10.02 Except as expressly set forth in Sections 8.01 and 10.03 hereof10.02, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Each Except as expressly set forth in Sections 8.01 and 10.02, each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment ofpayment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries or otherwise.
(fg) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee or Notes Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the TrusteeTrustee in accordance with this Indenture, forthwith pay, or cause to be paid, in cash, to the Holders, the Trustee or Notes Collateral Agent an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company then due to the TrusteeHolders, the Trustee and the Notes Collateral Agent in respect of the Guaranteed Obligations.
(gh) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Trustee Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between it, on the one hand, and the TrusteeHolders, the Trustee and the Notes Collateral Agent, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(hi) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee Trustee, the Notes Collateral Agent or any Holder in enforcing any rights under this Section 10.01.
(ij) Each Upon request of the Trustee, each Guarantor shall promptly execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
(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 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 distributions made on or before such date by such Contributing Guarantor in respect of its Guarantee (including in respect of this Section 10.01), minus (2) the aggregate amount of all payments received on or before such date by such Guarantor from the other Contributing Guarantors as contributions under this Section 10.01. The amounts payable as contributions hereunder shall be determined as of the date on which the related payment or distribution is made by the applicable Funding Guarantor. Each Contributing Guarantor is a third party beneficiary to the contribution agreement set forth in this Section 10.01(k). For the avoidance of doubt, nothing in this Section 10.01(k) shall limit or impair, by implication or otherwise, each Guarantor’s obligations under its Guarantee.
Appears in 1 contract
Guarantees. (a) Ashland Each Asset Entity hereby unconditionally and each other Guarantor that guarantees the Notes pursuant to this Indentureirrevocably guarantees, jointly and severally, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, to each Holder and to the Trustee Indenture Trustee, on behalf of the Noteholders, and their respective successors and assigns (ia) the full and punctual timely payment of principal of and interest on the Notes when due, whether at maturity, by acceleration 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, or interest on the Notes and all other monetary obligations of the Company Co-Issuers and the other Asset Entities under this Base Indenture and the Notes and each other Transaction Document and (iib) the full and punctual timely performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise Co-Issuers and the other Asset Entities under this Base Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture Notes and all other Transaction Documents (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that such Guarantor shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor Asset Entity waives presentation to, demand of of, payment from and protest to the Company Co-Issuers and the other Asset Entities of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor Asset Entity waives notice of any Default default under the Notes or the other Guaranteed Obligations.
. The obligations of each Asset Entity hereunder shall not be affected by (a) the failure of any Holder or the Indenture Trustee to assert any claim or demand or to enforce any right or remedy under the Transaction Documents against any other Obligor or any other Person or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Base Indenture, the Notes or any other Transaction Document; (d) the release of any security held by any Holder or the Indenture Trustee for the Obligations or any of them; or (e) the failure of any Holder or the Indenture Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations. Each Guarantor Asset Entity further agrees that its Guarantee guaranty herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Indenture Trustee to any security held for payment of the Guaranteed Obligations.
(d) . Except as expressly set forth in Section 10.02herein, the obligations of each Guarantor Asset Entity hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise.
(e) Subject . Without limiting the generality of the foregoing, the obligations of each Asset Entity herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Indenture Trustee to Section 10.02 and 10.03 hereofassert any claim or demand or to enforce any remedy under this Base Indenture, each Guarantor agrees that its Guarantee shall remain the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in full force and effect until payment the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in full any manner or to any extent vary the risk of all the Guaranteed Obligationssuch Asset Entity or would otherwise operate as a discharge of such Asset Entity as a matter of law or equity. Each Guarantor Asset Entity further agrees that its Guarantee guaranty herein shall continue to be effective or be reinstated, as the case may be, if at any time payment ofpayment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Indenture Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries Co-Issuers or otherwise.
(f) . 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 Asset Entity by virtue hereof, upon the failure of the Company Co-Issuers to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor Asset Entity hereby promises to and shall, upon receipt of written demand by the Indenture Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee Holders or the Indenture Trustee, as the case may be, an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations Guaranteed Obligations of the Company Co-Issuers to the Holders and the Indenture 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 it, on the one hand, and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(h) Each Guarantor Asset Entity also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expensesexpenses and court costs) incurred by the Indenture Trustee or any Holder in enforcing any rights under this Section 10.01Section. Notwithstanding any payment made by any Asset Entity hereunder, such Asset Entity shall not be entitled to be subrogated to any of the rights of the Indenture Trustee against the Co-Issuers or any collateral security or guarantee or right of offset held by the Indenture Trustee for the payment of the Obligations, nor shall the Asset Entity seek or be entitled to seek any contribution or reimbursement from the Co-Issuers in respect of payments made by the Asset Entity hereunder, until the Obligations are paid in full. If any amount shall be paid to an Asset Entity on account of such subrogation rights at any time when all of the Obligations shall not have been paid in full, such amount shall be held by such Asset Entity in trust for the Indenture Trustee, segregated from other funds of such Asset Entity, and shall, forthwith upon receipt by such Asset Entity, be turned over to the Indenture Trustee in the exact form received by such Asset Entity (duly indorsed by such Asset Entity, as applicable, to the Indenture Trustee, if required), to be applied against the Obligations, whether matured or unmatured, in such order as the Indenture Trustee may determine.
(i) 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.
Appears in 1 contract
Guarantees. (a) Ashland On and after the Acquisition Date, each other Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a suretysurety on a senior basis, to each Holder and to the Trustee and their its successors and assigns (i) the full and punctual payment when due, whether at maturityStated Maturity, by acceleration acceleration, by redemption or otherwise, of all obligations of the Company Issuers under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, or interest on in respect of the Notes and all other monetary obligations of the Company Issuers under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuers whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that 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 will be secured by security interests in the Collateral owned by such Guarantor to the extent provided for in the Security Documents and as required pursuant to Sections 4.12 and 4.15.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuers of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default 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 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.
(de) Except as expressly set forth in Section 10.02Sections 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, any Security Document or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(ef) Subject to Section 10.02 and 10.03 hereof, each Each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment ofpayment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company Issuers to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company Issuers to the Holders and the Trustee.
(gh) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Trustee Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(hi) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(ij) Each Upon request of the Trustee, each Guarantor shall promptly execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
Appears in 1 contract
Sources: Indenture (Borden Chemical Inc)
Guarantees. (a) Ashland Each Guarantor hereby irrevocably and each other Guarantor that guarantees the Notes pursuant to this Indentureunconditionally guarantees, jointly and severally, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, to each Holder Lender and the Trustee Collateral Agent and their respective successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration or otherwise, of all obligations of the Company Obligations under this Indenture (including obligations to Agreement, the Trustee) Loan Documents and the Notes, whether for payment of including, without limitation, principal of, premium, if any, or and interest on the Company Notes when due, whether at Stated Maturity, by acceleration or otherwise, and all other monetary obligations of the Company under this Indenture Agreement and the Company Notes and (ii) 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 performance within applicable grace periods payment of all Obligations under this Agreement, the Loan Documents and the Notes, including, without limitation, principal of, premium, if any, and interest on the MSXI Limited Notes when due, whether at Stated Maturity, by acceleration or otherwise, and all other obligations of the Company whether for fees, expenses, indemnification or otherwise MXSI Limited under this Indenture Agreement and the Notes, on the terms set forth in this Indenture by executing this Indenture MSXI Limited Notes (all the foregoing being hereinafter collectively called the “"Guaranteed Obligations”"). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, Guarantor and that such Guarantor shall will remain bound under this Article X 8 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of of, payment from and protest to the Company and MSXI Limited of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default default under the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (a) the failure of the Lender or the Collateral Agent to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Agreement, 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 Agreement, the Notes or any other agreement; (d) the release of any security held by the Lender for the Guaranteed Obligations or any of them; (e) the failure of the Lender or the Collateral Agent to exercise any right or remedy against any other guarantor 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 any Holder or the Trustee Lender to any security held for payment of the Guaranteed Obligations.
(d) Except as expressly set forth in Section 10.028.2 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 Guaranteed Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of such Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. 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 ofpayment, or any part thereof, of principal of of, premium, if any, or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder the Lender or the Trustee Collateral Agent upon the bankruptcy or reorganization of the 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 the Lender or the Trustee Collateral Agent has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of of, premium, if any, or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shallwill, upon receipt of written demand by the TrusteeLender, forthwith pay, or cause to be paid, in cash, to the Trustee Lender an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations Guaranteed Obligations of the Company to the TrusteeLender.
(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 it, on the one hand, and the TrusteeLender, on the other hand, (ix) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI 7 for the purposes of any such Guarantor's Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (iiy) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI7, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.018.1.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses' fees) incurred by the Trustee or any Holder Lender in enforcing any rights under this Section 10.018.1.
(i) 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.
Appears in 1 contract
Sources: Third Secured Term Loan Agreement (MSX International Inc)
Guarantees. (a) Ashland On and after the Issue Date (following the Issuers’ Assumption), each other Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a suretysurety on a senior basis, to each Holder and to the Trustee and their its successors and assigns (i) the full and punctual payment when due, whether at maturityStated Maturity, by acceleration acceleration, by redemption or otherwise, of all obligations of the Company Issuers under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, or interest on in respect of the Notes and all other monetary obligations of the Company Issuers under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuers whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that 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 will be secured by security interests in the Collateral owned by such Guarantor to the extent provided for in the Security Documents and as required pursuant to Sections 4.12 and 4.15.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuers of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default default under the Notes or the Guaranteed Obligations.
(c) 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.
(d) Except as expressly set forth in Section 10.02, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise.
(e) Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. 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 of, or any part thereof, principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or 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 Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the 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 it, on the one hand, and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(i) 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.Guaranteed
Appears in 1 contract
Guarantees. (a) Ashland and each other Each Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably and unconditionally guaranteesguarantees on an unsecured basis, as a primary obligor and not merely as a surety, to each Holder and the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration or otherwise, of all obligations of the Company Issuers under this Indenture (including obligations to the Trustee) and the NotesSecurities, whether for payment of principal of, premium, if any, or interest on on, if any, the Notes Securities and all other monetary obligations of the Company Issuers under this Indenture and the Notes Securities and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuers whether for fees, expenses, indemnification or otherwise under this Indenture and the NotesSecurities, on the terms set forth in this Indenture by executing this Indenture (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article X 10 notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuers of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default default under the Notes Securities or the Guaranteed Obligations.
(c) 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.
(d) Except as expressly set forth in Section 10.02Sections 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.
(e) Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. 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 ofpayment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company an Issuer to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company Issuers to the 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 it, on the one hand, and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI 6 for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(i) . 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.
Appears in 1 contract
Sources: Indenture (PQ Group Holdings Inc.)
Guarantees. (a) Ashland On and after the Issue Date, each other Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably and unconditionally guarantees, as a primary obligor and not merely as a suretysurety on a senior basis, to each Holder and to the Trustee and their its successors and assigns (i) the full and punctual payment when due, whether at maturityStated Maturity, by acceleration acceleration, by redemption or otherwise, of all obligations of the Company Issuers under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, premium, if any, or interest on in respect of the Notes and all other monetary obligations of the Company Issuers under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuers whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes, on the terms set forth in this Indenture by executing this Indenture Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that 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 will be secured by security interests in the Collateral owned by such Guarantor to the extent provided for in the Security Documents and as required pursuant to Sections 4.12 and 4.15.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuers of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any Default default under the Notes or the Guaranteed Obligations.
(c) 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.
(d) Except as expressly set forth in Section 10.02, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise.
(e) Subject to Section 10.02 and 10.03 hereof, each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. 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 of, or any part thereof, principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or 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 Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the 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 it, on the one hand, and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article VI for the purposes of any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 10.01.
(h) Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(i) 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.Guaranteed
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Guarantees. (a) Ashland and Subject to the provisions of this Article X, each other Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder of the Notes, to the extent lawful, and the Trustee and their successors and assigns (i) the full and punctual payment when due, whether at maturity, by acceleration 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, or and interest on the Notes and all other monetary obligations Obligations of the Company Issuers under this Indenture and the Notes and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuers or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture post-petition interest is allowed in such proceeding and the Notes, on the terms set forth in this Indenture by executing this Indenture obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guaranteed Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor it shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuers of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any Default default under the Notes or the Guaranteed Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Guarantor Obligations.
(d) Except as expressly set forth in Section 10.0210.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (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 Issuers; (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) Subject to Section 10.02 and 10.03 hereof, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. 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 ofpayment, or any part thereof, of principal of of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company Issuers to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Guarantor Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the TrusteeIssuers or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(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 itsuch Guarantor, on the one hand, and the TrusteeHolders, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article VI this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article VIGuarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(h) Each Guarantor also agrees to pay any and all fees, reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or any Holder the Holders in enforcing any rights under this Section 10.01Section.
(i) Neither the Issuers nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
(j) 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 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:
(i) preparation of an up-to-date audited balance sheet of the Swiss Guarantor;
(ii) obtain a confirmation of the auditors of the Swiss Guarantor confirming the maximum amount of the freely distributable reserves; and
(iii) approval by a shareholders’ meeting of the Swiss Guarantor of the (resulting) distribution
(iv) to the extent permitted by applicable law write up or realize any of the Swiss Guarantor’s assets that are shown in its balance sheet with a book value that is significantly lower than the market value of the assets, in case of realization, however, only if such assets are not necessary for the Swiss Guarantor’s business (nicht betriebsnotwendig); and
(v) all such other measures necessary or useful to allow the Swiss Guarantor to make the payments and perform the obligations hereunder with a minimum of limitations.
(l) The obligations and liabilities of each Guarantor incorporated in Sweden (each a “Swedish Guarantor”) incurred under its Guarantee shall be limited if (and only if) and to the extent required by the provisions of the Swedish Companies Act (Sw. Aktiebolagslagen (2005:551)) regulating (i) distribution of assets (Chapter 17, Sections 1-4 (or its equivalent from time to time)) and (ii) unlawful financial assistance and other prohibited loans and guarantees (Chapter 21, Section 5 (or its equivalent from time to time)), and it is understood that the obligations and liabilities of each Swedish Guarantor in its capacity as Guarantor under its Guarantee only applies to the extent permitted by the aformentioned provisions of the Swedish Companies Act.
(i) The obligations and liabilities of any Guarantor incorporated in France (each such Guarantor, a “French Guarantor”) under the Notes or this Indenture and in particular under this Article 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 promptly execute 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 deliver cash pooling arrangements that are outstanding on the date a payment is requested to be made by such further instruments 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 do 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 further acts as may be reasonably necessary or proper to carry out more effectively obligor. However, where such Subsidiary is itself a Guarantor that guarantees the purpose 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 Indenture.Subsidi
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Guarantees. (a) Ashland and Subject to the provisions of this Article X, each other Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder Holder, to the extent lawful, and the Trustee and their successors and assigns (i) Trustee, the full and punctual payment when due, whether at maturity, by acceleration 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, or and interest on the Notes of each series and all other monetary obligations Obligations of the Company Issuers under this Indenture and the Notes and of such series (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuers or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture post-petition interest is allowed in such proceeding and the Notes, on the terms set forth in this Indenture by executing this Indenture obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guaranteed Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor it shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuers of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any Default default under the Notes or the Guaranteed Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Guarantor Obligations.
(d) Except as expressly set forth in Section 10.0210.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (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 Issuers; (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) Subject to Section 10.02 and 10.03 hereof, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. 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 ofpayment, or any part thereof, of principal of of, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company Issuers to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee, the Agents or the Trustee on behalf of the Holders and such Agents an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Guarantor Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the TrusteeIssuers or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(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 itsuch Guarantor, on the one hand, and the TrusteeHolders, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article VI this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article VIGuarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(h) Each Guarantor also agrees to pay any and all fees, reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or any Holder the Holders in enforcing any rights under this Section 10.01Section.
(i) Each Guarantor Neither the Issuers nor the Guarantors shall promptly execute be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and deliver any such further instruments and do such further acts as may notation shall not be reasonably necessary or proper a condition to carry out more effectively the purpose validity of this Indentureany Guarantee.
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Sources: Indenture (PPD, Inc.)
Guarantees. (a) Ashland and Subject to the provisions of this Article X, each other Guarantor that guarantees the Notes pursuant to this Indenture, hereby jointly and severally, irrevocably irrevocably, fully and unconditionally guarantees, on a senior secured basis, as a primary obligor guarantor and not merely as a surety, with each other Guarantor, to each Holder Holder, to the extent lawful, and the Trustee and their successors and assigns (i) Trustee, the full and punctual payment when due, whether at maturity, by acceleration 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 ofprincipal, premium, if any, or and interest on the Notes and all other monetary obligations Obligations of the Company Issuer under this Indenture and the Notes and (ii) including, without limitation, interest accruing after the full and punctual performance within applicable grace periods filing of all other obligations any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company Issuer or any Guarantor whether or not a claim for fees, expenses, indemnification post-filing or otherwise under this Indenture post-petition interest is allowed in such proceeding and the Notes, on the terms set forth in this Indenture by executing this Indenture obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Guarantor further agrees (to the extent lawful) that the Guaranteed Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantorit, and that such Guarantor it shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guaranteed Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any Default default under the Notes or the Guaranteed Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance payment when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Guarantor Obligations.
(d) Except as expressly set forth in Section 10.0210.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reasonreason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder 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) Subject to Section 10.02 and 10.03 hereof, each Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed ObligationsGuarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. 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 ofpayment, or any part thereof, principal of principal, premium, if any, or interest on any Guaranteed Obligation of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or any of its Subsidiaries 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 Company Issuer to pay any of the principal of or interest on any Guaranteed Obligation Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Guarantor Obligations then due and owing (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations including interest accruing after the filing of any petition in bankruptcy or the Company commencement of any insolvency, reorganization or like proceeding relating to the TrusteeIssuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(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 itsuch Guarantor, on the one hand, and the TrusteeHolders, on the other hand, (ix) the maturity of the Guaranteed Guarantor Obligations guaranteed hereby may be accelerated as provided in Article VI this Indenture for the purposes of any its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantor Obligations guaranteed hereby, hereby and (iiy) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article VIGuarantor Obligations, such Guaranteed Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Section 10.01Guarantee.
(h) Each Guarantor also agrees to pay any and all fees, reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or any Holder the Holders in enforcing any rights under this Section 10.01Section.
(i) Each Guarantor Neither the Issuer nor the Guarantors shall promptly execute be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and deliver any such further instruments and do such further acts as may notation shall not be reasonably necessary or proper a condition to carry out more effectively the purpose validity of this Indentureany Guarantee.
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